The petitioner was a citizen of Sudan, who arrived and claimed asylum in the UK in June 2008; her claim for asylum was subsequently rejected in July 2008. By January 2009, she had become “appeal rights exhausted” and in December 2009, she requested the Secretary of State reconsider her application for asylum, indicating it was a fresh claim for asylum under Rule 353 of the Immigration Rules. Her new representations were not recognized by the UK Border Agency, on behalf of the Secretary of State, as constituting a fresh asylum application. Invoking judicial review of this decision, the petitioner sought reduction of the refusal of her fresh asylum claim.

The court noted that the Immigration Judge did not find the petitioner to be credible in all respects, further noting that while she was at risk of persecution upon her return, she could easily relocate within South Sudan, safely and without undue hardship. The Immigration Judge had further noted that the petitioner was a single woman who was fit, able to work and able to support herself in a relatively troubled environment. The petitioner argued that new medical evidence submitted on her behalf in December 2009 was to the effect she was not fit and able to work. While the UK Border Agency did consider this medical evidence, it only did so in the context of the high threshold required for “medical cases” in the context of Article 3 rights.

The court noted Rule 353 of the Immigration Rules requires the decision maker to consider the content of any further submissions and decide if the content has not already been considered and, taken together with the previously considered material, creates a realistic prospect of success. The court noted that this means only more than a fanciful such prospect. Taking the fresh information together with previously considered material, the Secretary of State would have to bear in mind that the petitioner would be able to succeed before the other Immigration Judge on the basis of medical needs, only in extreme and exceptional circumstances. The court found the contents of the letter fell very far short of extreme and exceptional circumstances. Considering the medical evidence submitted in December 2009 could not possibly support a conclusion that internal location to South Sudan would be unduly harsh, the court concluded that there was not enough fresh material to create a realistic prospect of success before an Immigration Judge and that the Secretary of State had approached the test in the correct manner. Petition dismissed.