KG (Turkey) v The Secretary of State for the Home Department

Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 forms part of a holistic credibility assessment. It does not dictate the result. A tribunal may find that delay in making an asylum claim does not damage credibility. However, it must specifically consider the potentially adverse effect of the relevant delay and give sufficient, intelligible reasons for its conclusion. Reasons may be brief, but they must address the principal controversial issues. Failure to address a central concern relied upon in refusing an asylum claim is a material error of law.

The appellant, a Turkish national, claimed asylum in October 2018 on the basis of alleged association with the Gülenist Movement and a risk of persecution on return. His earlier human rights appeal against deportation had relied only on private and family life. The First-tier Tribunal allowed the asylum appeal, but the Upper Tribunal set that decision aside because the First-tier Tribunal had not resolved the significance of the delay in claiming asylum. Following a rehearing, the Upper Tribunal rejected the appellant’s credibility case and dismissed the appeal. The issue before the Court of Appeal was whether the First-tier Tribunal’s treatment of the delayed claim and its reasons contained a material error of law.

Appeal dismissed unanimously. Lady Justice Andrews gave the principal judgment. Lord Justice Nugee and Lord Justice Lewison agreed.

1. Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 requires relevant behaviour, including delay in making an asylum claim, to be taken into account as potentially damaging to credibility. The provision operates within a holistic assessment. It does not require a particular outcome, and the tribunal may conclude on the facts that delay has no damaging effect. The approach in JT (Cameroon) v Secretary of State for the Home Department, [2008] EWCA (Civ) 878; [2009] 1 WLR 1411, was accepted.
2. A decision-maker need not expressly mention section 8 or treat it as a separate compartment. The decision must, however, show that the potentially adverse impact of the relevant delay was specifically considered and must explain why the delay was, or was not, damaging. A professional judge’s reasons may be concise, but they must address the principal controversial issues.
3. The First-tier Tribunal referred to delay only when considering the discrepancy between 2014 and 2015 as the date of an earlier airport incident. That incident was unrelated to the Gülenist Movement and could not explain the failure to claim asylum after the 2016 coup, when the risk of being regarded as a Gülenist sympathiser was widely known. The First-tier Tribunal gave no intelligible reason why the delay caused less damage to credibility and no adequate basis for inferring that the later summons triggered the claim or excused the earlier delay.
4. The First-tier Tribunal therefore made a material error of law. The Upper Tribunal was entitled to set aside its decision. The appellant’s appeal to the Court of Appeal was dismissed.

• Court of Appeal (Civil Division) — On 1 December 2022, dismissed the appeal and upheld the Upper Tribunal’s entitlement to set aside the First-tier Tribunal’s decision.
• Upper Tribunal (Immigration and Asylum Chamber) — On 23 February 2021, set aside the First-tier Tribunal’s determination for failure to resolve the significance of the delayed asylum claim. After rehearing the case, it dismissed the appeal on 2 November 2021.
• First-tier Tribunal — On 13 March 2020, allowed the appellant’s asylum appeal, accepting his credibility and finding a prospective risk on return.