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

Under paragraph 353 of the Immigration Rules, new evidence does not found a fresh claim if, even assuming it is accepted, it cannot create a realistic prospect of success on the evidence as a whole.

Past persecution or ill-treatment is a serious indicator of future risk under paragraph 339K, but its relevance depends on the context that produced it. Earlier torture by anti-terror police while investigating suspected political links did not establish a future Article 3 risk in an ordinary prison sentence for a non-political offence. An error in rejecting medical evidence therefore did not invalidate the refusal. A materially different prison-conditions argument raised for the first time on appeal could not be entertained.

The appellant, a Turkish national of Kurdish ethnicity, had previously failed in asylum and human rights claims. The adjudicator accepted some evidence of past ill-treatment but found no real risk of repetition on return, including because there was no reason to expect referral to the anti-terror police.

In 2006, further representations relied on a medical report concerning scars said to be compatible with electric shocks. The Secretary of State refused to treat the representations as a fresh human rights claim under paragraph 353 of the Immigration Rules. On judicial review, HHJ Inglis considered that the report had been wrongly rejected but upheld the conclusion that there was no realistic prospect of success. The appeal concerned paragraph 339K, the effect of the medical evidence, and a new argument concerning ordinary prison conditions and Article 3.

Richards LJ gave the substantive judgment. Waller and Longmore LJJ agreed. The appeal was dismissed.

1. Past ill-treatment and paragraph 339K. Past persecution or ill-treatment is an indicator of future risk, and paragraph 339K expresses that principle emphatically. It does not, however, detach the assessment from the individual circumstances or the context in which the earlier ill-treatment occurred. The earlier treatment followed arrest and interrogation by the anti-terror police to establish whether the appellant had PKK links. The adjudicator found that the authorities accepted he had no such links and that there was no reason for him to be handed to that branch on return. His conviction and ordinary prison sentence did not themselves establish a risk of ill-treatment.
2. Fresh claim assessment. The medical report could support a finding that the earlier treatment amounted to torture. It could not alter the decisive finding that there was no real risk of renewed ill-treatment on return. The question under paragraph 353 of the Immigration Rules was whether the further material, taken with the evidence already considered, created a realistic prospect of success before an Immigration Judge. The risk had to be assessed on the evidence as a whole and by reference to the individual, rather than to general conditions affecting all returnees.
3. Effect of the error. The Secretary of State had wrongly dismissed the medical evidence, but that error did not vitiate the refusal. The conclusion remained rational and effectively inevitable even if the report were accepted.
4. New argument on appeal. The argument that the appellant faced Article 3 ill-treatment as an ordinary prisoner was not raised before the adjudicator, the Secretary of State, or the lower court. It was therefore too late to raise on appeal. In any event, the country material described only a few incidents and did not establish a real risk for every person serving an ordinary sentence.

The references to WM (DRC) v SSHD [2006] EWCA Civil 1495 and ZT (Kosovo) v SSHD [2009] UKHL 6 did not affect the analysis. The formal order was: appeal dismissed.

1. Court of Appeal (Civil Division): The appeal against the Administrative Court’s decision was dismissed. [2009] EWCA Civ 660
2. Administrative Court, Queen’s Bench Division: HHJ Inglis, sitting as a deputy High Court judge, dismissed the claim for judicial review of the Secretary of State’s refusal to treat the further representations as a fresh human rights claim.