Further and fresh claims
Further & Fresh Claims Under the Immigration Act
Paragraph 353 states:
“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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) has 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.”
The Home Office will apply a two-stage process for applying paragraph 353.
Considering whether leave should be granted
In all cases where further submissions are received, the first stage for the Home Office is to decide whether or not to grant you leave to remain. The Home Office case owner will consider all available evidence when deciding whether you qualify for leave. This will include all information you put forward but also information such as new country information or a new policy. The Home Office case owner will also act upon the findings of the final appeal determination.
The Home Office may be uncertain whether to grant you leave to remain on the basis of the information provided and so may decide to invite you to attend an interview.
Deciding whether further submissions constitute a fresh claim for asylum
If the Home Office case owner decides that it would not be appropriate to grant you leave to remain, the second stage is to determine whether the further representations constitute a fresh claim for asylum.
Paragraph 353 states that representations will amount to a fresh claim if they are “significantly different” from the material that has already been considered.
Representations will only be significantly different if the content:
• has not already been considered; and
• taken together with the previously considered material, creates a realistic prospect of success.
Has the material already been considered?
If the material you now wish to put forward has already been considered by the Home Office or at appeal, it will have been considered already for the purposes of paragraph 353 and there will be no fresh claim. If the material has previously been considered, the Home Office will not need to consider whether the material creates a realistic prospect of success and the application will simply be rejected.
Does the material create a realistic prospect of success?
If the material you put forward in the further submissions has not previously been considered, the Home Office will decide whether the new information, taken together with the material previously considered, raises a realistic prospect of success. The test of a “realistic prospect of success” is a low one. This is because the Home Office are bound to follow the guidance laid down in cases that have come before the United Kingdom courts which have stated:
- that the question is, whether there is a realistic prospect of success in an application before an immigration judge, but not more than that;
- the immigration judge himself does not have to be certain about the information, only that it indicates that there is a real risk of you being persecuted on return; and
- since the issue in questions is asylum, all decision-makers in the case including the Secretary of State, the immigration judge and the court, must give the material the most anxious scrutiny.
This essentially means that an applicant who raises asylum issues in further submissions will have a fresh claim if there is a realistic prospect of an Immigration Judge deciding that he should be granted leave on humanitarian protection grounds.
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