Gurtekin, R (on the application of) v Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, a fresh-claim decision involves two questions. First, whether the further material is significantly different from material previously considered. Secondly, whether, taken with the earlier material and applying anxious scrutiny, it is rational to conclude that the claim has no realistic prospect of success before an immigration judge.

The Secretary of State must assess the new evidence cumulatively and rationally. Independent tribunal decisions concerning close relatives, expert evidence supporting the authenticity of documents, and corroborative family evidence may create a realistic prospect of success even where the claimant was previously disbelieved. The mere fact that relatives succeeded on different evidence does not determine the claim, but it cannot rationally be treated as irrelevant or necessarily conclusive against the claimant.

The claimant, a Turkish national of Kurdish ethnicity, challenged the Secretary of State’s refusal to treat further representations as a fresh asylum claim. His earlier asylum appeal had been dismissed by an adjudicator, who rejected his account and doubted his claimed relationship to family members associated with the PKK.

The further material included expert evidence concerning Turkish documents, a Turkish advocate’s letter, favourable tribunal determinations concerning the claimant’s alleged brother and cousin, and later DNA evidence confirming the claimed brotherhood. The issue was whether the representations satisfied the approach in WM (DRC) to paragraph 353 of the Immigration Rules.

1. The claim for judicial review succeeded. The Secretary of State’s decisions of 21 June 2006 and 27 February 2008 refusing to treat the representations as a fresh claim were quashed.
2. Following WM (DRC), the decision-maker had to ask whether the new material was significantly different from the material previously considered and, if so, whether it was rational to conclude that the combined material created no realistic prospect of success before an immigration judge applying anxious scrutiny.
3. The new evidence was significantly different. The earlier adjudicator had rejected the claimant’s case principally because he considered the claimed family relationship to be bogus. The new material directly addressed that issue. Mr Norton’s expert report supported the authenticity of the Turkish documents, while the tribunal determinations concerning Mustapha and Vedat Gurtekin provided independent evidence relevant to the family background and alleged persecution.
4. The Secretary of State’s reasoning was irrational. Treating the expert report as adding little merely because the adjudicator had not made specific findings on document authenticity was unduly narrow. The Turkish advocate’s letter had substantial evidential value if genuine, and no proper Tanveer Ahmed assessment had been undertaken. The reasoning that the relatives’ tribunal decisions were distinguishable because those individuals had political profiles of their own was circular and could not establish that the claimant had no realistic prospect of success.
5. The court accepted that success by a relative does not entitle another claimant to succeed. It may nevertheless materially strengthen the claim and require reconsideration. The claimant’s lack of an established political profile might ultimately prove decisive, but that was for a fresh assessment by an immigration judge.

The judgment records that the claimant’s original asylum appeal was dismissed by an adjudicator on 23 April 2004 and that permission to appeal to the tribunal was refused on 12 August 2004. The present proceedings were a first-instance judicial review of the Secretary of State’s fresh-claim decisions.