A quick note on a recent asylum judgment in Scotland — nothing earth-shattering in it, our friends at McGill & Co tell me, but a reminder to be on the alert for multiple misstatements of the threshold for success in decision letters rejecting further submissions.

Paragraph 353 of the Immigration Rules says:

When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.

In the Outer House case of RK (AP) v Secretary of State for the Home Department [2018] CSOH 21, the petitioner challenged the Secretary of State’s refusal to treat his further submissions as a fresh claim. The decision letter to that effect that had twice referred to whether the new material “would” lead to a grant of asylum — whereas the correct approach is that “the petitioner must establish that he could succeed before a fresh immigration judge, not that he would succeed”.

Counsel for the Secretary of State conceded that the decision letter’s phrasing (“it is not accepted that, should this material be considered by an immigration judge, your submissions would result in a decision” to grant asylum) was “unhappily worded”.

Lady Wise, giving judgment, held that the use of this “inappropriate and deficient” wording did not on its own vitiate the decision. This is just as well, from the Secretary of State’s point of view, since apparently it comes as standard in such letters (see paragraphs 13 and 20). The decision letter has to be looked at as a whole to see whether the correct test has been applied, confirming the approach in MA v SSHD [2017] CSOH 109. That said:

In the circumstances of the case before me, where the respondent has twice used the incorrect expression under reference to the applicable test, a particularly careful analysis of the letter is required to see whether the respondent has exhibited not just a statement of the correct test but also its application, including satisfying the requirement of anxious scrutiny. While what matters is whether the correct test was applied rather than what language was used, the respondent’s unfortunate use of language on two occasions in the present case is sufficient to alert the reader to the possibility of error in its application.

In this case, there had indeed been substantive error in its application, so the petitioner succeeded in having the decision reduced (quashed).