Matthew Howarth Successfully Defends SSHD in Upper Tribunal Judicial Review on Fresh Claim and Pending Country Guidance

In R (AM) v Secretary of State for the Home Department (JR-2025-LON-000508), Upper Tribunal Judge Mahmood dismissed the applicant’s judicial review challenge to the Secretary of State’s decision dated 24 January 2025 rejecting further submissions as a fresh protection and human rights claim under paragraph 353 of the Immigration Rules. The applicant was granted anonymity, and the judgment expressly prohibits publication of information likely to identify him. Matthew Howarth, instructed by the Government Legal Department, appeared for the Secretary of State.

In summary, AM confirms that pending country guidance is not current country guidance, does not itself alter the paragraph 353 merits assessment, does not create a disclosure obligation in respect of another live case, and will often be met by a section 31(2A) no-difference answer in any event. It is therefore a useful respondent-side authority in fresh claim JRs involving attempts to leverage undeclared future developments in country guidance litigation.

The applicant is an Albanian national born in 2002. His case was that he had been trafficked, forced to work in a cannabis factory in the UK, later compelled to deliver drugs, and remained at risk from the same criminal gang on return to Albania, including because of alleged connections with the Albanian police. He had received a positive reasonable grounds decision through the National Referral Mechanism in December 2022, but a negative conclusive grounds decision in February 2024. In May 2024 he was convicted of possession of class A drugs with intent to supply and sentenced to 25 months’ imprisonment, following which a Stage 1 deportation decision letter was served in June 2024.

The judicial review challenged the Secretary of State’s refusal to treat further submissions made in July 2024 as a fresh claim. The applicant argued, first, that the decision had wrongly relied on the negative conclusive grounds decision without giving adequate reasons for rejecting his trafficking account, and, second, that the Secretary of State had failed to engage with the significance of the then-pending country guidance case of LR (Albania) concerning trafficked men. Permission was ultimately granted principally on the first ground, although the later substantive argument focused heavily on the second.

By the time of the substantive hearing, the applicant’s own skeleton argument had effectively accepted that the respondent’s detailed grounds showed the decision had not in fact turned solely on the negative conclusive grounds decision, but on a wider objective assessment of risk. The Tribunal held that Mr Howarth was correct to submit that the Secretary of State’s decision did not hinge on the National Referral Mechanism outcome and instead proceeded to a separate merits analysis addressing risk on return, sufficiency of protection, and internal relocation. Ground 1 therefore failed.

The central issue became whether the Secretary of State was obliged, when applying paragraph 353, to take account of the mere listing of LR (Albania) as a future country guidance case. On behalf of the respondent, Mr Howarth submitted that this argument was legally unsustainable because a pending case is not itself a decision, carries no binding status, and could not displace the requirement to apply extant country guidance and existing objective material as at the date of decision.

The Tribunal accepted those submissions in clear terms. Judge Mahmood held that the applicant’s reliance on the future listing of LR (Albania) was “wholly misconceived” and that the Secretary of State was entitled, and indeed required, to make the decision consistently with the extant country guidance in force at the time. The judgment emphasises that existing country guidance remains authoritative unless and until it is expressly replaced, superseded, or shown to be inconsistent with higher authority. A future country guidance hearing did not, without more, create a realistic prospect of success for the purposes of paragraph 353.

The Tribunal also rejected the applicant’s related duty of candour argument. Relying on the respondent’s position as advanced by Mr Howarth, the judgment held that materials generated for the pending country guidance case were under the control of the Upper Tribunal, not the Secretary of State, and were not subject to disclosure merely because they might be relevant to another case. The Tribunal described the applicant’s disclosure case as, in reality, a “fishing expedition” and held that it was for the applicant to marshal evidence supporting his own case rather than require the respondent to search other live proceedings for potentially helpful material.

More broadly, the judgment is of practical importance for fresh claim litigation. It reaffirms that the paragraph 353 question is whether there is a realistic prospect of success before a notional First-tier Tribunal judge applying anxious scrutiny, but that this does not entitle an applicant to rely on speculation about the possible future outcome of unrelated pending litigation. The Tribunal further observed that accepting the applicant’s argument would risk paralysing decision-making in a wide class of Albanian trafficking cases by requiring them to await the outcome of a future country guidance determination.

The claim was dismissed. The Tribunal also held, in the alternative, that section 31(2A) of the Senior Courts Act 1981 would in any event have barred relief because it was highly likely that the outcome would not have been substantially different even if the Secretary of State had expressly referred to the pending LR (Albania) hearing in the decision letter. Following circulation of the draft judgment, the Tribunal ordered the applicant to pay the respondent’s costs on the standard basis, to be subject to detailed assessment if not agreed.

Matthew’s practice is predominately in Public and Private claims before the Upper Tribunal and High Court relating to Judicial Review of Immigration decisions. He has extensive experience in this field and is ranked as a band 1 Leading Junior in Immigration and Human Rights. He accepts instructions on behalf of Applicants, NGOs and Government Departments.