D.F.M. v The Secretary of State for the Home Department

"When a human rights or asylum claim has been refused ... 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:

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."

[3] There was considerable common ground between the parties in respect of the proper approach by a court at this stage to Rule 353 cases in the light of the developed jurisprudence on this issue on both sides of the border. Counsel were agreed that Lord Bannatyne in ABC v Secretary of State for the Home Department [2013] CSOH 32 (22 February 2013) sets out the correctly applicable law, in the generality, in summary form at paragraph 11 therein in the following terms:

"[11] Before turning to the parties' detailed submissions it is perhaps convenient to set out that parties were agreed on certain aspects of the law: first as regards the approach the court must adopt in cases of this type:

The test to be applied by the court in a judicial review of a refusal to treat further representations as constituting a fresh claim is the Wednesbury test (see: WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495 at paragraph 9 and O v The Secretary of State for the Home Department [2010] CSIH 16 at paragraph 22).