New fresh claims case

Free Movement – 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.

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