England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 February 2012

Mr Timothy Brennan QC :

Introduction

1. In this application for judicial review the claimant, a national of Sri Lanka to whom asylum was refused in 2002, challenges refusals of the Secretary of State for the Home Department (SSHD) to admit a series of written submissions as a fresh claim (or claims) under paragraph 353 of the Immigration Rules. In short, the claimant's case is that while there has been no relevant change in his personal circumstances, developments in Sri Lanka since his original application for asylum was refused mean that his submissions qualify as a fresh claim, entitling him to a further in-country right of appeal.

Legal principles

2. The relevant legal principles were not in dispute. Paragraph 353 of the Immigration Rules provides:-

"353 When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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) 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."

3. The claimant's case is that although the SSHD rejected his further submissions she should have determined that they amounted to a fresh claim and, had she done so, it is common ground that the claimant would be entitled to a right of appeal in the United Kingdom against the rejection of his submissions. The only issue for determination by the court on judicial review is whether the SSHD decided lawfully that the further representations did not amount to a fresh claim in the sense used in paragraph 353.
4. In R (MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193, the Court of Appeal (Maurice Kay, Moses and Sullivan LJJ) determined what was the correct approach to review of the SSHD's decision on issues arising under paragraph 353 in the light of the 'disarray' of previous authority. The correct approach is that taken in R (TK) v Secretary of State for the Home Department [2009] EWCA Civ 1550 and in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, rather than that of other inconsistent case law (MN at [13]-[16]). The SSHD's decision is to be reviewed on Wednesbury principles, remembering that a decision which is not taken on the basis of 'anxious scrutiny' will be irrational. Paragraph 353 only imposes a 'somewhat modest' test that the application has to meet before it becomes a fresh claim (Buxton LJ in WM at [7]).
5. In MN the Court of Appeal rejected the approach that, on judicial review of the SSHD's decision under paragraph 353, the court should reach its own decision on whether the further submissions amount to a fresh claim, and in particular whether they satisfy the "reasonable prospect of success" test. Earlier cases taking the rejected approach included R (YH) v SSHD [2010] EWCA Civ 116. Nevertheless, in MN at [12] Maurice Kay LJ referred with apparent approval to "relevant observations" of Carnwath LJ on the meaning of "anxious scrutiny" in YH at [24]:

"… the expression in itself is uninformative. Read literally, the words are descriptive not of a legal principle but of a state of mind … However, it has by usage acquired special significance as underlining the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. I would add, however, echoing Lord Hope, that there is a balance to be struck. Anxious scrutiny may 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."

6. Under paragraph 353 the burden is on the claimant to show that there is something new. Once he crosses that threshold, it is for the decision-maker (the SSHD) to decide whether the material (new and old) satisfies the relevant test. The requirement of anxious scrutiny means that decisions need to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account. If nothing else, anxious scrutiny should in practice ensure that the benefit of any realistic doubt will be given to the claimant. (YH at [12]).

The facts of this case

7. The claimant arrived in the UK on 23 July 2002 and claimed asylum, which was refused by the SSHD in a decision dated 26 September 2002. The claimant's appeal was refused in a determination of an adjudicator promulgated on 21 March 2003 and his rights of appeal were exhausted by 28 April 2003. In due course he ceased to adhere to reporting conditions and was listed as an absconder from 15 March 2007.
8. On 13 August 2010 the claimant was encountered and detained and on that date the SSHD made the first of the decisions that are challenged in the present proceedings. In this decision the SSHD decided not to reverse the decision on the earlier claim for asylum, and determined that the representations did not amount to a fresh claim. Further representations were made which the SSHD rejected in a decision of 20 August 2010; again it was determined that they further did not amount to a fresh claim.
9. Judicial review proceedings were issued on 25 August 2010 and permission was granted by Nicol J on 15 September 2010. After detailed grounds of defence were filed on 6 December 2010 yet further representations, relying on private and family life, were made on 25 February 2011 and 3 March 2011. They were rejected in a decision of 3 October 2011.
10. On granting permission to apply for judicial review in relation to the claimant's case on asylum and under Articles 2 and 3 of the European Convention on Human Rights, Nicol J observed that the claimant had not been able to present to the SSHD new material which was personal to him. However, the lead cases on Sri Lanka had themselves recorded the subsequent history of the island since the adjudicator's determination in the claimant's case and made more up to date findings as to the factors which were likely to contribute to a risk of ill-treatment. Permission was therefore granted on the basis that it was arguable that, taking those matters into account, the claimant would have a realistic prospect of success if he had a second appeal.
11. The papers before Nicol J also referred to contentions relating to private and family life which had been built up since the claimant's arrival in the UK. However, the SSHD's conclusion that those matters did not give rise to a fresh claim was not challenged, and the claimant does not have permission to apply for judicial review on those grounds. No argument was addressed to me concerning the claimant's private and family life.
12. The starting point in the claimant's case is the detailed findings of fact made by the adjudicator. There was no material before the SSHD to suggest that a different view should be taken of the facts personal to the claimant, and there is no such material before me.

(1) The Claimant is a male Tamil from Trincomalee, single and without dependants, born in 1980.

(2) The Claimant was not a member of the Liberation Tigers of Tamil Eelam (LTTE) but gave assistance to them as and when required. He was forced by them to give financial assistance and to employ and accommodate two LTTE boys who stored small weapons at his shop and home.

(3) In December 2000, the Claimant and his aunt were arrested, detained and interrogated by the army. The Claimant was tortured and has scars to his body consistent with burns from cigarette butts and from a hot iron bar, and two scars consistent with an assault requiring stitches.

(4) On release from Army custody in April 2001 the claimant was taken to a camp where he gave assistance to Government authorities by identifying LTTE members. He was transferred to an Army camp in Colombo in February 2002.

(5) He secured his release from the Army camp in May 2002 through the payment of a bribe. The adjudicator was not satisfied (contrary to the claimant's evidence) that his release would have been recorded as an escape or that it would have led to the claimant's name being on a wanted list.

(6) The claimant signed a document (said by him to be in Sinhalese and which he said he did not understand). No charges were laid as a result of the signing of the document and the claimant was released. Whatever the document was, and whether or not it was a confession, the adjudicator found that it was not significant and that the claimant would not be on a wanted list as a result of signing it.

(7) There was no satisfactory evidence on which the adjudicator could conclude otherwise than that the claimant's aunt committed suicide. The adjudicator did not accept the claimant's version that she was raped and killed by the Army.

(8) The adjudicator did not accept ("to the low standard required") that the army or the LTTE were subsequently looking for the claimant. He was unable to produce in evidence letters which he had claimed to have received recently from his grandmother informing him that the Army was looking for him and was unable to give a satisfactory explanation for his failure to do so.

(9) On a consideration of the country situation evidence as it stood at the date of the decision, the claimant would not be at risk on return to Sri Lanka. His subjective fear of being returned to Sri Lanka was not objectively well founded. He had low level involvement with the LTTE and was not seriously involved. Any assistance he gave to the LTTE was under pressure. He was released by the army and never charged with any crime, and he was able after his release to leave Sri Lanka without difficulty using his own passport. He would therefore be of no interest to the authorities.

(10) He had worked on behalf of the LTTE and it was only whilst in detention and under duress that he agreed to help identify LTTE members as did other young Tamils in similar situations. In the light of the country situation evidence (as it then stood), the claimant would not be at risk of reprisals from the LTTE if returned.

(11) In the light of the country situation evidence (as it then stood), the Claimant would not come to the adverse attention of the authorities at Colombo airport on return merely as a result of being a failed asylum seeker returning from Europe, or of having previously been detained and released without charge, or of having scarring.

The claimant's representations

13. So far as relevant to the arguments which were advanced before me, the thrust of the claimant's representations which were rejected by the SSHD was that the situation had changed in Sri Lanka since the adjudicator's decision on the appeal in 2003. It was contended that the SSHD had attached inadequate weight to the decisions in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and NA v United Kingdom, [2008] ECHR 616, (2009) 48 EHRR 15. The most recent country guidance decision is that in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (a decision of the Asylum and Immigration Tribunal constituted of Carnwath LJ Senior President of Tribunals, CMG Ockelton, Deputy President AIT and Senior Immigration Judge Storey). Stress was placed on the omission of the SSHD even to mention the last of these cases, which was decided after the military defeat of the LTTE by government forces in May 2009 bringing to an end the armed conflict between the LTTE and government forces in Sri Lanka.
14. The key risk factors relevant to the claimant on which he relied in particular were the following (established as they were in LP Sri Lanka and affirmed in TK Sri Lanka):

(i) Tamil ethnicity;

(ii) A previous record as an actual or suspected LTTE member;

(iii) Signing a confession or other document;

(iv) Having been asked by security forces to be an informer;

(v) Scarring;

(vi) Returning from London or other centre of LTTE activity;

(vii) Having made an asylum claim abroad.

15. It was submitted that the SSHD failed to engage with the claimant's risk profile arising from his previous record as a suspected LTTE member. Reference had been made by the SSHD to the claimant's detention as a suspected LTTE, and to his release from that detention on payment of a bribe, but this did not (it is argued) necessarily establish that the claimant is as a matter of fact not at risk on return to Sri Lanka by reason of such suspected membership. As was recorded in TK Sri Lanka at [140], quoting with apparent approval the words of the Tribunal in LP Sri Lanka:

"…[m]uch will depend on the evidence relating to the formality of the detention (or lack of it), and the manner in which the bribe was taken and the credibility of the total story.  If the detention is an informal one, or it is highly unlikely that the bribe or 'bail' has been officially recorded, then the risk level to the applicant is likely to be below that of real risk."

16. The Tribunal in LP Sri Lanka was drawing a distinction between the position of someone who was reasonably likely, on the evidence, to have a record, not merely in itself, but a record which recorded him as one who had escaped from government detention or who was a bail jumper from the court system. Such a person might be, in some cases, at real risk of persecution or serious harm. The position of such an individual was to be distinguished from that of someone (such as the claimant) who had not been to court and had been released after payment of a bribe.
17. The adjudicator expressly addressed whether the claimant's release would have been recorded as an escape or would have led to the claimant's name being on a wanted list. She was not satisfied that such records would have been made.
18. It is submitted on behalf of the claimant that the essential question to be asked is not whether the claimant was likely to be on a "wanted list" but whether there is a reasonable likelihood that the claimant's detention is likely to have been recorded and whether it will demonstrate that the claimant is someone likely to be of sufficient interest to the authorities on return to Sri Lanka.
19. The case law, following the decision in TK Sri Lanka, suggests several factors which are relevant to the question whether the claimant is likely to be of such interest. In TK Sri Lanka the Tribunal said that:

" we are not persuaded that the Sri Lanka authorities would have as much interest as before in persons in some way linked to the LTTE unless they were LTTE members/cadres or persons with an active role or profile in that organisation. ...  During the conflict it was logical in security terms for the authorities to be concerned not just about LTTE cadres, but also about the sizeable number of persons who were considered likely to aid the LTTE cadres materially by, e.g. supplying them with petrol or food.  Post-conflict, however, it is difficult to see why such persons would be as much of a concern." (TK at [75])

20. On the findings of the adjudicator already mentioned, the Claimant fell into the latter category of persons: he was not a member of the LTTE but gave assistance to them as and when required.
21. In TK Sri Lanka the Tribunal said that:

"We are prepared to accept that in the past 10-20 years the Sri Lankan authorities may well have taken steps to place more particulars relating to LTTE suspects on file and to transfer those onto computer databases.  At the same time, it seems clear that such steps will have enabled them to indicate a clearer profiling of security risks. ... It strongly suggests that the accuracy of date-recording has improved. In our view greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained." ([82].)

22. It is thus unlikely that the Claimant, a person who was of no interest to the authorities in 2003, would be recorded on a database today as being of interest to the authorities, if recorded at all.
23. In relation to scarring, it was said that:

"Given that a specific focus of current interest is in tracking down LTTE cadres, it is reasonable to assume that where there are other significant factors in play [emphasis added] this would bring an applicant to the attention of the authorities. A body inspection then becomes more likely and discovery of scarring consistent with battle-related injuries may intensify the risk of arrest, detention and subsequent ill-treatment." ([144])

24. In the absence of significant factors making the claimant of interest to the authorities, a body inspection is unlikely, and the presence of scarring is unlikely to be a risk factor. In any event, scarring as a risk factor was well established even at the time of the adjudicator's determination, and was expressly considered by the adjudicator. There is no new material on the point.
25. In TK Sri Lanka at [81]-[82] and [134]-[135] the Tribunal made observations about record keeping, observing that:

"[81] Assuming records are held at the airport or can be checked from there, the more difficult question concerns who they will cover and whether in particular every arrest and detention by the Sri Lankan authorities results in a record being raised. …[I]t was the evidence of … Professor Good, that the likelihood of records being kept of detention depended in part on who had made the arrest/detention: his evidence was that a record of an army detention was less likely than one of a police detention. 

[82] A further question concerns the likely contents of these records. We are prepared to accept that in the past 10-20 years the Sri Lankan authorities may well have taken steps to place more particulars relating to LTTE suspects on file and to transfer those onto computer databases.  At the same time, it seems clear that such steps will have enabled them to indicate a clearer profiling of security risks. Significantly, Dr Smith's own evidence … was that data contained in official records pays close attention to detail and records and the levels of threat posed by the individual: "The records varied in their length and detail, depending upon the level of adverse interest" … At one point in his oral evidence he emphasised that "the government had developed ways of identifying Tamils of concern to them". He also said that all records included information on family members. In our judgment this is one of the most important items of evidence to have come to hand since LP and NA. It strongly suggests that the accuracy of date-recording has improved. In our view greater accuracy is likely to reduce substantially the risk that a person of no real interest to the authorities would be arrested or detained.

1. …

[134] From our earlier discussion, it will be evident that a previous record held on a person describing him as an actual LTTE member may be a factor likely to give risk to a real risk of serious harm. Much will depend on the precise circumstances; events are very much at the stage where the Sri Lankan authorities are hoping that existing LTTE members will follow the example of the Karuna breakaway group and join the country's mainstream political system; they also speak of "rehabilitating" LTTE members. However, for a returnee, a record noting past membership would very likely lead to detention for a period and we continue to think that in relation to persons detained for any significant period, ill-treatment is a real risk.  The same would apply, in our judgment, to persons currently suspected of being LTTE members; if that is how their record describes them, then detention and ill-treatment are likely consequences.

[135] There is a further point about records. We consider that in light of the evidence from Dr Smith regarding the increasing sophistication on the part of the Sri Lankan authorities in their record-keeping, it is reasonably likely that records will also contain indications of the level of security threat that an individual is or is not considered to pose: see above para 82."

26. The claimant was detained by the army, not by the police, reducing the likelihood that a record would exist; he was released on payment of a bribe, reducing it further. He was an unwilling assistant of the LTTE (as well as of the army) and, if records exist, records are "reasonably likely" to contain indications of the level of security threat he posed, namely low rather than high.
27. The claimant seeks to draw a parallel with the facts relevant to the applicant before the European Court of Human Rights in NA v UK (25904/07), where the Court considered that signature (by that applicant's father) of a document on the applicant's release from detention justified the inference that the authorities had made efforts to document his arrest and detention on suspicion of LTTE involvement. The court was concerned to examine the strength of the applicant's claim to be at real risk as a result of an accumulation of all the possible risk factors identified by the applicant as applicable to his case (see [142]). The applicant in NA had been arrested and detained no fewer than six times, the record keeping in his case included having him photographed and fingerprinted (see [143]). The Court considered ([145]) that the greatest possible caution should be taken when (as in the case of that applicant) it was accepted that a returnee had previously been detained and a record made of that detention.
28. The decision in NA should be considered in the light of what was said in relation to it in TK Sri Lanka where, at [173] the Tribunal said in relation to NA:

"The ECtHR goes on to note that the Sri Lankan authorities' 'interest in particular categories of returnees is likely to change over time in response to domestic developments and may increase as well as decrease', thereby acknowledging that the nature of the interest is contingent on the category of returnee".

And at [174] the Tribunal observed that its approach:

"may be considered a change of emphasis from that taken by the ECtHR in para 145 of NA but it remains that for the ECtHR the question of risk was all about profile."

29. The claimant's profile, as found by the adjudicator, was not such as to give rise to serious risk.
30. It is instructive to consider the approach taken in R (Lenin) v SSHD [2008] EWHC 2968 (Admin) where a claimant whose asylum claim had been rejected before the judgment in LP, argued, in reliance on new case law since 2003, that "the Sri Lankan authorities would be likely to have a computerised record of the Claimant's arrest, detention and release in 1998" and that "It is likely ... that the computerised record would be available to the authorities at Colombo airport so that upon the Claimant's return he would at risk of arrest and consequent persecution or torture" (Lenin at [37]). The argument was rejected by Wyn Williams J, in these terms:

"38. It is true that the Defendant did not, specifically, address the issue of the likelihood of the Sri Lankan authorities having computerised details relating to the Claimant in her decision …That, however, is not entirely surprising. The whole thrust of the Defendant's assessment in her decision letters was that the Claimant's profile is such that he would be of no interest to the Sri Lankan authorities upon return. It is implicit in the Defendant's assessment that even if some record of his 1998 arrest and detention existed that would not alter the fact that he was of no interest to the authorities. That said, in my judgment it would have been desirable, at the very least, for the Defendant's decision letter to engage expressly with the issue of whether or not there was reason to believe that a computerised record of the arrest, detention and release of the Claimant in 1998 existed and was likely to be available to the authorities at the airport.

39. Is the Defendant's decision to be categorised as irrational or unreasonable or one lacking in anxious scrutiny by virtue of her failure to engage expressly with this issue? In my judgment, it is not since (a) the Defendant justifiably proceeded on the basis that the Claimant's profile was very low and secondly the conclusions expressed in LP and AN & SS do not support the conclusion that it is likely that the Claimant's details were computerised and available at the airport. I appreciate that there are passages in paragraphs 135 and 136 of the judgment in NA which demonstrates that computerised records of some persons who have been detained previously are likely to be available at the airport. In my judgment, however, those passages must be understood against the undisputed fact in that case that the details of NA had been recorded at the time of one of his many arrests. On the basis of the adjudicator's findings in this case and in the light of the recent factual conclusions expressed in AN & SS ... there is simply no proper factual basis upon which it would be proper to infer that details of the Claimant's arrest, detention and release in 1998 would be available to the authorities at the airport.

40. In my judgment the Defendant was entitled to conclude that the Claimant was not at risk of persecution and/or treatment in breach of his human rights notwithstanding the deteriorating situation in Sri Lanka. Further she was entitled to conclude that there was no reasonable prospect that any different view would be taken on an appeal from that decision."

31. In my judgment a similar analysis is appropriate to the claimant's contentions in the present case. The likelihood that there would be a record about the claimant was addressed in the original appeal and the adjudicator's conclusions are not put in doubt by fresh material. The new material to be gleaned from TK Sri Lanka points, if anywhere, further away from the conclusion that there is likely to be a record about the claimant which would put him at risk. His involvement with members of the LTTE was itself at a low level and was unwilling. He was never himself a member of the LTTE and there is no reason now to suppose that a record exists suggesting the contrary, or that any such record would suggest him to present a high level of security risk.
32. The claimant relies heavily on the recent decision of the Court of Appeal in MP (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 362, submitting that a decision may be flawed if it demonstrates a failure to engage with the significance of a previous record of detention of a Tamil suspected of LTTE involvement. That case was an appeal from a dismissal of an asylum appeal in the Asylum and Immigration Tribunal; it did not arise under paragraph 353 and was not heard on judicial review.
33. The appellant in MP (unlike the claimant in the present case) had been an LTTE member and it was because of this that he was detained by the authorities from November 2001 to March 2002, tortured and forced to sign a confession. In contrast to the claimant's position, the immigration judge had held that it was highly likely that there would be a record of the detention of that appellant. Lloyd LJ at [37] (with whom Rimer LJ agreed at [46]) considered that in the circumstances:

"there must be at least a possible risk that the record would indicate a higher, rather than a lower, level of membership, or significant activities on behalf of LTTE."

34. The majority of the Court of Appeal in MP considered this against the finding in TK Sri Lanka at [134] that a previous record held on a person describing him as an actual LTTE member may be a factor likely to give rise to a real risk of serious harm, and that for a returnee arriving at the airport in Sri Lanka, a record noting past membership would be likely lead to detention for a period and (in relation to persons detained for any significant period) ill-treatment was a real risk.
35. The majority of the Court considered that the Tribunal did not appear to have recognised the clear inference from paragraph 134 of TK Sri Lanka that there would be at least some period of detention of the appellant, and that on the reasoning given in the determination in that case the court did not know whether the Immigration Judge thought about paragraphs 134, 135, 142 and 174 of TK Sri Lanka, or, if he did so, why he concluded that the content of the appellant's record would be such as to lead only to a period of detention, not to a significant period" (MP at [39]).
36. The particular error on the part of the Tribunal identified in MP was thus that in that particular case, looking at the wording of the determination of the Tribunal appealed against, the Immigration Judge "Either … did not have regard to the point, which is an error of law in itself, or … failed to explain what he thought about it and why it was not a strong point in the appellant's favour, which is also an error of law, though of a different kind, because the appellant cannot tell why he has lost his case" (MP at [42]). The majority of the Court of Appeal considered that if the Immigration Judge had expressly considered the relevant passages of TK Sri Lanka, "a finding that he had not shown that there was a real risk could have been supported" (MP at [41]).
37. As already mentioned, unlike the appellant in MP, the Claimant in this case was not an LTTE member and not someone who was liable to be detained, let alone for a significant period, for that reason. His profile (someone who provided certain practical assistance to the LTTE) was expressly found in TK Sri Lanka to be a profile that was no longer of interest to the authorities. As the Tribunal stressed (at [174]):

"the basic question is whether an applicant can establish a real risk that he or she would be of sufficient interest to the authorities in their efforts to combat the LTTE as to warrant his or her detention and interrogation (NA, para 133) in the light of all the available evidence. In this regard it seems to us that what will determine the extent of interest the authorities at the airport will show in a returnee is not the existence of a record but what any record will disclose. We fully accept that learning of the mere existence of a record is likely to result in the individual concerned being checked and/or interrogated more than someone without a record, but we do not consider that the evidence demonstrates that that in itself leads to the individual being detained for any significant period. "

38. As to the claimant's concerns that returning to Sri Lanka from London as a failed asylum seeker would put him at additional risk, the SSHD stated that the information that he had failed in an asylum claim would not be disclosed by the United Kingdom Border Agency on the claimant's removal to Sri Lanka. There is no reason to doubt this assurance and there is no reason to suppose that the claimant's arrival from London, as opposed to anywhere else, would by itself give rise to undue suspicion.

Conclusion

39. Reading the SSHD's decision letters as a whole, their thrust is clear. Such involvement as the claimant had with the LTTE was low-level; there was no outstanding warrant; his release on payment of a bribe was not likely to have been recorded as an escape; the document he signed was not significant; he was not likely to be of real interest to the authorities.
40. It was necessary for the SSHD to review the claimant's risk profile in the light of the developments in Sri Lanka since the date of the adjudicator's determination. While it would have been preferable for the decision letters expressly to have mentioned the decision in TK Sri Lanka, there was in my judgment nothing in the claimant's profile, as found by the adjudicator and as reviewed by the SSHD, which could only, in the light of those developments, rationally have been regarded by the SSHD as placing him at greater risk if returned today than was found by the adjudicator at the date of his appeal. There is no new material to undermine the conclusions which were reached. In those circumstances I do not consider that the decision of the SSHD that the claimant's representations did not amount to a fresh claim can be categorised as irrational and I dismiss this claim for judicial review.