I, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The case concerns a renewed claim for permission to seek judicial review of two decisions by the Secretary of State refusing to treat representations made in January as fresh asylum and human rights claims. The Appellant is a Sri Lankan Tamil who arrived in the jurisdiction as an unaccompanied minor in June 2002 and initially applied for asylum. Although the asylum claim was refused, he was granted exceptional leave to remain due to his age.

In January 2004, the Appellant applied for further leave to remain; this application was refused in August 2004, as was his claim that removal would breach Articles 2, 3, and 8 of the European Convention on Human Rights (ECHR). An appeal against this refusal was dismissed in January 2005. Approximately two years later, in December 2006, the Appellant was served with a removal notice (form IS151A), which prompted his solicitors to submit a fresh asylum claim based on a deterioration of conditions in Sri Lanka.

The fresh claim relied on a December 2006 United Nations High Commissioner for Refugees (UNHCR) report indicating a real risk of persecution for Tamils from certain regions of Sri Lanka, particularly due to a breakdown of the cease-fire and risks of detention, interrogation, and torture, potentially breaching Article 3 ECHR and the Refugee Convention. This fresh claim was lodged in February 2007 but was refused on paper and later renewed.

Subsequently, the Asylum and Immigration Tribunal (AIT) issued country guidance in August 2007 (the LP case), clarifying that being Tamil alone does not create a real risk of persecution, although it remains a relevant factor. The Tribunal rejected the Appellant’s account that he was involved with the LTTE or had been detained, finding he was not of interest to the authorities. The Appellant’s representative acknowledged that the fresh claim was unlikely to be arguable given this guidance and the Tribunal’s findings.

Legal Issues Presented

1. Whether the Secretary of State was correct to refuse to treat the Appellant’s representations as fresh asylum and human rights claims.
2. Whether the Appellant’s fresh claim, based on changed country conditions in Sri Lanka, is arguable in light of the country guidance and prior findings on credibility.
3. The extent and application of the duty of candour on parties bringing judicial review proceedings, particularly regarding disclosure of adverse material.
4. Whether a failure to disclose relevant adverse material can justify refusal of permission to proceed with judicial review and the imposition of costs sanctions on legal representatives.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the Appellant’s fresh claim in the context of the changed country conditions in Sri Lanka, as evidenced by the UNHCR report and the subsequent country guidance case LP. The Tribunal’s findings that the Appellant was not involved with the LTTE, had never been detained, and was not of interest to authorities were critical. The court emphasized that the mere fact of Tamil ethnicity does not establish a real risk of persecution absent other factors.

Furthermore, the court underscored the paramount importance of the duty of candour in judicial review proceedings. It noted that the Appellant’s solicitors failed initially to disclose the adjudicator’s adverse credibility findings, which are material to the claim. The court explained that such nondisclosure can lead to refusal of permission to proceed and may result in cost sanctions against legal representatives. Although in this case the breach was not deliberate and was somewhat mitigated by later disclosure, the court stressed the professional obligation to present all relevant material, including adverse findings.

The court concluded that the fresh claim was not arguable given the country guidance and credibility findings, and that permission for judicial review must be refused.

Holding and Implications

Permission to seek judicial review is refused.

The direct effect of this decision is the dismissal of the Appellant’s renewed application to challenge the Secretary of State’s refusal to treat his representations as fresh claims. The court’s ruling confirms that fresh claims must be substantiated by credible evidence in light of updated country guidance and prior adjudications. It also reinforces the critical professional duty of candour in immigration judicial review proceedings, warning that failure to comply can result in refusal of permission and cost penalties. No new legal precedent was established beyond the application of existing principles to the facts of this case.