Fresh claims

By On 25 June 2009 · 8 Comments · In Cases

This is becoming something of a hot topic, no doubt because of the number of Sri Lankan and Zimbabwean fresh claims that have been made recently because of changed circumstances in those two countries. The Court of Appeal has just issued a judgment on the interpretation of paragraph 353 of the immigration rules, and it is actually quite a helpful one: R (on the application of AK (Sri Lanka)) v SSHD [2009] EWCA Civ 447. I wish Lord Justice Laws had been as helpful to me when I was in the Court of Appeal last week, but as will shortly be public record, he most certainly was not.

The court holds (i) ‘further submissions’ under paragraph 353 just means representations, whether they be ‘short or long, reasoned or unreasoned, advanced on asylum or human rights grounds’, (ii) that no particular form is required to advance further submissions and they can be a different type of claim or merely be new facts to support a claim that has already been advanced and (iii) that the ultimate test is whether there is more than a ‘fanciful prospect of success.’

 
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8 Responses to Fresh claims

  1. Natasha says:
    26 June 2009 at 5:48 pm

    It is really saddening that AK, a Sri Lankan woman in the quoted case, was removed from the UK last year after she had lived here for more than 15 years. Having read the facts of the case, it’s just impossible for me to understand why she was not given leave to remain. I hope she is allowed to come back.

  2. Dlevene says:
    29 June 2009 at 2:39 pm

    More than ‘fanciful prospect of success’. Does that mean UKBA will start taking fresh reps more seriously? Probably that’s just wishful thinking on my part.

  3. APO / PO Box says:
    1 July 2009 at 10:51 am

    Unfortunately I can’t really seeing this assisting many applicants who make fresh claims. Whilst there are a minority of actual, genuine cases where there has been a change in circs. Many ‘fresh claims’ are nothing more than fanciful delay tactics to frustrate removal and won’t succeed in establishing a fresh claim even with the assistance of AK.

    • freemovement says:
      3 July 2009 at 5:33 pm

      Your opinion, APO / PO Box, but I haven’t acted in any cases where there was no arguable change in circumstances, and the Home Office concedes a very considerable number of fresh claim JRs. There are plenty of recent fresh claim JR judgments on BAILII where the claim may have failed, but it was clearly an arguable point even if the judge ultimately decided the Secretary of State’s decision was not perverse as such.

      However, it is true that AK won’t change a great deal. Laws LJ wasn’t purporting to change the threshold in these cases, he was just reiterating that it is a low threshold.

  4. vulture says:
    1 July 2009 at 3:17 pm

    very sorry to hear about Laws LJ not helpful

    • freemovement says:
      3 July 2009 at 5:27 pm

      Yes, well, I’ve seen him in worse moods and he did say thank you for my submissions at the end, even if he didn’t need to call on my opponent… When the judgment does come out, it will look like I made all sorts of silly points that in fact I didn’t. Men of straw spring to mind.

      Bad luck on your latest reported case, Vulture!

  5. Permission to work « Free Movement says:
    23 October 2009 at 4:56 pm

    [...] waiting for a year or more for a decision on an asylum claim — whether a first claim or a fresh claim — can seek permission to work and can judicially review UKBA if permission is not [...]

  6. Sri Lankan fresh claims « Free Movement says:
    13 December 2010 at 4:16 pm

    [...] failed asylum seekers faced a risk of persecution in Sri Lanka. It is therefore highly relevant to fresh claims by Sri Lankans already in the [...]