R (AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 447; [2009] WLR (D) 198

“The phrase ‘further submissions’, in the context of the Secretary of State’s obligation under r 353 of the Immigration Rules to consider whether any such submissions amounted to a fresh claim for asylum, merely meant representations, whether new or not, and those representations could be short or long, advanced on either asylum or human rights grounds, and reasoned or unreasoned. Where further submissions had in fact been found to have been made, and the question of whether they had already been considered was being asked for the purposes of ascertaining whether they were ‘significantly different’, within the meaning of r 353, and therefore might amount to a fresh claim, it was clear that no particular form was required in which new material to be put before the Secretary of State had to be cast, and that such new material might assert a human rights or asylum claim in a different category from what had been claimed the first time and that, alternatively, the same category of claim may be persisted in, but new facts asserted to support it. Where such previously unconsidered further submissions were found to have been made and the question was being asked whether, taken together with previously considered material, they enjoyed a realistic prospect of success within the meaning of r 353, and amounted thereby to a fresh claim, ‘realistic prospect of success’ meant ‘more than a fanciful such prospect’ and was not the same as a case which was clearly unfounded, the latter being a case with no prospect of success.”

WLR Daily, 19th June 2009

Source: www.lawreports.co.uk

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