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

Under paragraph 353 of the Immigration Rules, a fresh asylum claim requires consideration of whether the new material creates a realistic prospect of success before an adjudicator applying anxious scrutiny. The Secretary of State’s own view of the merits is only the starting point. Judicial review asks whether it was rationally open to the Secretary of State to conclude that no such prospect existed.

Where new country guidance has replaced the guidance relied on in an earlier asylum appeal, and materially changes the assessment of risk on return, the fresh-claim threshold may be met even in a fact-specific case. The court must apply the modest threshold applicable to fresh claims, rather than determine the asylum claim itself.

The claimant, a Turkish Kurd and Alevi Muslim, had previously been refused asylum. His appeal was dismissed after the Immigration Appeal Tribunal assessed the risk on return by relying on earlier country guidance concerning Turkish records and returnees.

After the Tribunal issued IK (Turkey CG), which updated and replaced several of those authorities, the claimant made further submissions. The Secretary of State decided that they did not amount to a fresh claim under paragraph 353 of the Immigration Rules. The issue was whether that decision was unlawful because the new guidance created a realistic prospect that an adjudicator would allow the claim.

1. The claim succeeded. The Secretary of State’s decision was quashed. There was no order for costs.
2. The applicable test was that identified in WM (DRC) [2006] EWCA Civ 1495. The Secretary of State had to ask whether there was a realistic prospect of an adjudicator, applying anxious scrutiny, finding a real risk of persecution on return. The test was one of irrationality: the court had to decide whether it was reasonably open to the Secretary of State to conclude that no realistic prospect existed.
3. The Secretary of State’s letter did address the correct question when it stated that the further material, taken with the previously considered material, would not create a realistic prospect of success. The error was therefore not failure to identify the correct legal test.
4. The material question was whether the answer reached was rational. The earlier Tribunal’s central reasoning had relied on country guidance cases which had been updated and replaced by IK (Turkey CG) [2004] UKIAT 00312. In particular, the Tribunal had followed the reasoning in O (Turkey) [2004] UKIAT 0038, which had subsequently been specifically replaced.
5. IK (Turkey CG) materially altered the assessment. It recognised that a returnee travelling on a one-way emergency travel document could be identifiable as a failed asylum seeker and could be sent for further investigation. The assessment then required a case-sensitive examination of risk in the home area and elsewhere in Turkey, including the possibility of inquiries into local records.
6. Given the modest threshold for a fresh claim, the changed guidance and the manner in which the Tribunal had previously approached the claimant’s case meant that the Secretary of State could only reasonably have concluded that the claimant had a realistic prospect of success before an adjudicator. The court emphasised that the decision was highly fact-specific and did not encourage similar claims based solely on IK (Turkey CG).

• High Court (Administrative Court): The judicial review claim was allowed and the Secretary of State’s decision was quashed.
• Immigration Appeal Tribunal: The claimant’s earlier asylum appeal had been dismissed in September 2004. The Tribunal’s reasoning relied on country guidance later updated and replaced by IK (Turkey CG) [2004] UKIAT 00312.
• Adjudicator: The original asylum appeal had been dismissed in September 2003.