The Court of Appeal has re-visited the proper approach to deciding whether fresh asylum claims meet the rule 353 test. The case is R (on the application of YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 and it effectively supersedes WM (DRC) and interprets the Supreme Court decision in BA (Nigeria). In fact none of it comes as a surprise, though, and it adds little if anything new.

Firstly, giving the leading judgment, Lord Justice Carnwath holds that there is no practical difference between the rule 353 test for a fresh claim and the clearly unfounded test at section 94 of the 2002 Act. Their Lordships in the Supreme Court expended a lot of intellectual energy saying that the tests were different, but there we go. It’s all counting angels.

Secondly, the Devaseelan guidelines should be followed in respect of previous judicial determinations, but the relevance of a previous determination was potentially wider than considered in Devaseelan. Where there are adverse credibility findings, a claimant ‘will face caution when considering his unsupported assertions’.

Thirdly, the Court of Appeal seems to row back from the position outlined in WM (DRC) with regards to from whose perspective the Secretary of State should be making judgments about the prospects of success. In WM the Court said that the Secretary of State has to consider whether a later judge might find there is a realistic prospect of success. In YH the Court suggests that this is simply something the Secretary of State should bear in mind: it is for the Secretary of State to decide whether the threshold is met.

Fourthly, more helpfully, the judgment confirms that the it is for the court to decide whether the threshold is met. It is not simply a Wednesbury review of reasonableness. However, Carnwaath LJ reminds us that the process is still of judicial review, not a de novo hearing. Parallels could be drawn with the age determination appeal process that is the outcome of the Supreme Court decision in R (on the application of A) v London Borough of Croydon (on which I realised the other day I have written nothing other than an alert, a situation I will soon remedy).

Lastly, rather unfortunately from the point of view of refugee protection, Carnwath LJ suggests that the ‘most anxious scrutiny’ test can work both ways:

The cause of genuine asylum seekers will not be helped by undue credulity towards those advancing stories which are manifestly contrived or riddled with inconsistencies.

If we leave aside that many asylum seekers who are not ultimately granted asylum are still ‘genuine asylum seekers’, this is at least more sensible than Mr Freeman’s suggestion some years ago in a reported case that the public interest in immigration control requires ‘most anxious scrutiny’ equivalent to that applied to refugee status determination.

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