HJ (F/E) AGAINST SECRETARY OF STATE FOR THE HOME DEPARTMENT

Factual and Procedural Background

The Plaintiff, a citizen of a foreign country, arrived in the UK in January 2012 and claimed asylum. The Plaintiff entered the UK using a passport under an alias and had previously applied for a visa under the same name. The Plaintiff's initial asylum claim was refused by the First-tier Tribunal in October 2013, with findings that significant parts of the Plaintiff's evidence were inconsistent and lacked credibility. An appeal was dismissed in December 2013, with all appeal rights exhausted by February 2014. The Plaintiff lodged further submissions on three occasions, all refused by February 2020. In September 2021, the Plaintiff submitted further material, which led to the current proceedings focusing on whether these submissions constituted a "fresh claim" under Rule 353 of the Immigration Rules. The Plaintiff's new claim centered on active membership of a political group in the UK since October 2020. The Respondent rejected the submissions in November 2021, concluding they did not amount to a fresh claim.

Legal Issues Presented

1. Whether the Plaintiff's further submissions, combined with previously considered material, create a realistic prospect of success before an Immigration Judge, thereby constituting a fresh claim under Rule 353 of the Immigration Rules.
2. Whether the Respondent applied the correct legal test and exercised anxious scrutiny in assessing the risk of persecution arising from the Plaintiff's alleged political activity.
3. Whether the Respondent correctly applied its Country Policy and Information Note concerning the Plaintiff's political group and the risk posed by the government of the Plaintiff's country of origin.

Arguments of the Parties

Appellant's Arguments

• The critical question is whether the further submissions, combined with prior material, provide a realistic prospect of success before an Immigration Judge, not whether the Respondent personally believes the appeal would succeed.
• The Respondent erred by focusing on the likelihood of success from their own perspective rather than the lower threshold of a realistic prospect of success.
• The Respondent failed to properly consider objective evidence depicting a "bleak picture" of political suppression and surveillance by the Plaintiff's home government, as outlined in case law concerning political activity sur place.
• The Plaintiff's involvement with the political group was supported by unchallenged evidence, including membership documentation, affidavits from a group chairman, screenshots of online participation, and photographs of demonstrations.
• The Respondent's decision lacked analysis of the political group's nature, aims, presence in the home country, and government monitoring, contrary to the Respondent's own policy guidance.
• The Respondent improperly equated the Plaintiff's use of multiple aliases with lack of credibility, ignoring the objective evidence of political activity and risk.
• The Respondent failed to apply anxious scrutiny as required by law in evaluating the risk of persecution.

Respondent's Arguments

• The Plaintiff's asylum claims had been twice considered and refused by the First-tier Tribunal, establishing that membership of the Plaintiff's community alone does not bar return to their home country.
• The parties agree on the correct legal test for fresh claims as set out in relevant case law.
• The Plaintiff's new political activity was significantly different material under Rule 353.
• The Plaintiff joined the political group only after asylum claims failed, suggesting opportunistic motives, which, while relevant to credibility, do not bar a claim if a real risk of persecution exists.
• The Respondent properly applied its Country Policy and Information Note, focusing on whether the Plaintiff had a significant political profile likely to attract adverse attention from the home government.
• Emphasis was placed on the Plaintiff's credibility due to inconsistencies in earlier claims, though the political activities were independently evidenced.
• The Respondent's decision was consistent with policy paragraphs regarding risk assessment of individuals linked to political groups.
• The Respondent's approach to the political group was limited but referenced the group’s non-violent and non-political characterization as per the policy note.

Petitioner's Reply

• The Plaintiff highlighted further references in the Respondent's policy note demonstrating the political group's leadership being sentenced for rebellion and terrorism charges, indicating the group's political significance and risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analyzed whether the Respondent properly applied the legal test for fresh claims under Rule 353, focusing on the realistic prospect of success before an Immigration Judge. It found that the Respondent erred materially in two respects. First, the Respondent failed to consider relevant factors identified in precedent concerning political activity sur place, notably ignoring objective evidence and unchallenged affidavits that could lead to an inference that the Plaintiff faced a real risk of persecution due to government surveillance and repression. Second, the Respondent neglected to apply its own Country Policy and Information Note adequately, omitting analysis of the political group's nature, aims, presence in the home country, and government monitoring. These omissions amounted to a failure of anxious scrutiny, a legal standard requiring careful and thorough evaluation of all relevant evidence to prevent exposing asylum seekers to persecution. The Court rejected the submission that the Respondent addressed the wrong legal question, concluding the error lay in the flawed application of the correct test. The Court also found that the Respondent did not properly apply its own policy, undermining the decision's validity.

Holding and Implications

The Court SUSTAINED the Plaintiff's plea in law and REDUCED the Respondent's decision dated 24 November 2021.

The direct effect of this ruling is to overturn the Respondent's refusal to treat the Plaintiff's further submissions as amounting to a fresh claim, thereby reopening the Plaintiff's asylum claim for reconsideration under the correct legal standards. The decision does not establish new precedent but reinforces the necessity for Respondents to apply anxious scrutiny and to properly consider relevant policy and evidence in asylum cases involving political activity sur place.