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

Under Rule 353 of the Immigration Rules, further submissions constitute a fresh claim only where they are significantly different from the material previously considered and, taken with that material, create a realistic prospect of success. The decision-maker must ask whether an adjudicator applying anxious scrutiny could find a real risk of persecution on return; the question is not whether the decision-maker considers the claim likely to succeed.

In assessing return risk for a Turkish asylum claimant, the assessment normally begins with the claimant’s home area. Where no well-founded fear of persecution is found there, the claimant is ordinarily unlikely to face a real risk elsewhere in Turkey, and separate airport and internal relocation issues need not be examined.

The claimant, a Kurdish Turkish national, sought judicial review of the Secretary of State’s refusal to treat further asylum submissions as a fresh claim. His original asylum claim and appeals had failed. The new material relied principally on updated country guidance concerning the GBTS and other information available to Turkish authorities at airports and elsewhere on return.

The adjudicator had accepted the claimant’s account of past ill-treatment but found that he had no well-founded fear of persecution in his home area and could not establish a real risk on return. The central issue was whether the updated evidence created a realistic prospect that an adjudicator would reach a different conclusion.

1. The application was refused. The Secretary of State acted lawfully and within the scope of her discretion in deciding that the further material did not amount to a fresh claim.
2. Rule 353 of the Immigration Rules requires the decision-maker to consider whether the new submissions are significantly different and, with the earlier material, create a realistic prospect of success. Applying WM (Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the relevant question was whether an adjudicator applying anxious scrutiny might find a real risk of persecution on return, not whether the Secretary of State personally regarded the claim as meritorious.
3. The country guidance in IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312 required the risk assessment normally to begin with a case-sensitive examination of the claimant’s home area, using the risk factors identified in A (Turkey) CG [2003] UKIAT 00034. If there was no well-founded fear in the home area, the claimant was unlikely to be at real risk elsewhere in Turkey. It was therefore unnecessary to proceed to separate questions concerning airport risk or internal relocation.
4. The adjudicator had made an explicit, case-sensitive finding that the claimant lacked a well-founded fear of persecution in his home area. The increased information potentially available at Istanbul airport therefore did not create a realistic prospect of success. The Court of Appeal’s approach in MT (Turkey) [2007] EWCA Civ 1397 applied where home-area risk was accepted; it did not require the airport-stage analysis here.
5. The claim was refused. The Secretary of State was entitled in principle to her costs, subject to the claimant’s publicly funded status. Permission to appeal was also refused.

This was a first-instance judicial review application. Permission to apply was initially refused by Gibbs J, then granted at an oral hearing before Mr Rabinder Singh QC sitting as a deputy High Court judge. The Administrative Court refused the substantive application and refused permission to appeal to the Court of Appeal.