Fresh asylum application : New evidence produced few days before deportation
MH (Algeria), R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 901 (26 July 2011): This was an appeal against the dismissal of a claim for judicial review of the decision which refused to treat the claimant's application for asylum as a fresh claim under Rule 353 of the Immigration Rules. In order to determine whether there is a fresh claim, the Secretary of State for the Home Department (SSHD) must ask two questions. First, is there new material not already considered and, secondly, is there a realistic prospect of the claim succeeding (Rule 353). A Rule 353 decision by the SSHD is challengeable only on Wednesbury grounds (R (On the application of) MN (Tanzania) v SSHD [2011] EWCA Civ 193). Wednesbury unreasonableness, named after the English case, is a decision so unreasonable that no reasonable authority could have decided it that way.
The appellant was an Algerian national who arrived in the UK in 1998 on a false passport. His claims for asylum were dismissed in 2001 and 2003. By the time of the present appeal, there was no longer any danger from the GIA, the militant Islamic group who the appellant had come under pressure to join. He argued there remained a threat to his safety from the Algerian government, as he had not reported for military service because of pressure from the GIA, and furthermore had used false documents to flee Algeria.
The appellant made a series of alleged fresh claims, which the SSHD refused to treat as such. The most important fresh claim was based on evidence of a witness known to the appellant who had been detained on returning to Algeria for his daughter's wedding. The witness claimed to have been shown a list of individuals of interest to the authorities. This dossier included information about the appellant. Expert evidence was adduced to show that the security situation in Algeria remained problematic and that the holding of such a dossier by the Algerian authorities was in-keeping with expected practice. As such the appellant would be at risk of mistreatment.
Whether or not this account was credible, if it were found to be believable, an immigration judge would have to find that there was sufficient risk of the appellant being mistreated if returned to Algeria. The SSHD argued in the present case that it was for him/her to decide that the evidence could not reasonably be believed by any immigration judge. The judge disagreed with this point in principle, holding that there could well have been an arguable case that the appellant would be at risk of ill treatment if returned to Algeria, on the basis of his history of hostility to the government and persecution in the past, when taken with the new witness account.
However, on the facts the SSHD was entitled to be 'sceptical' about new evidence produced at such a late date, a few days before deportation was due. The appellant had failed to explain why the evidence was produced at the last minute, and this cast doubt on the witness statement relied on. The SSHD's decision that the new evidence did not constitute a fresh asylum claim was reasonable. The appeal was dismissed.
At Ergen & Sharif, our lawyers have extensive experience in dealing with fresh asylum and human rights claims. We can offer the following services:
- Advice as to the procedure for making further submissions particularly in light of the new procedures in place
- Advice as to whether the applicants case meets the relevant criteria
- Advice as to the type of evidence/documents required
- Advice as to chances of success in light of the individual circumstances of the applicant
- If refused, advise as to any rights of appeal and further legal action to be taken
For further information, please contact us on 0207 569 3035 or alternatively at info@ergensharif.co.uk
