KD v Secretary of State for the Home Department

Under section 72 of the Nationality, Immigration and Asylum Act 2002, assessing whether a person convicted of a particularly serious crime constitutes a danger to the community requires consideration of the nature of the crime, the likelihood of further serious offending and the level of harm that might result. Where the offence and feared harm are exceptionally grave, the risk must be so low that it can effectively be discounted. A low likelihood of serious harm may still be a real, non-fanciful risk.

On a repeat asylum appeal, the Devaseelan guidance requires more than identifying an earlier decision as a starting point. The tribunal must analyse the common issues, the earlier findings and their reasons, and whether new evidence presents materially different facts. Previously available documents require careful consideration of why they were not produced earlier and whether they are reliable.

The Secretary of State appealed against the Upper Tribunal’s dismissal of an appeal concerning the refusal of KD’s asylum and human-rights claims and the proposed deportation order. The First-tier Tribunal had allowed the asylum appeal, accepting that KD was at risk in Turkey because of imputed political opinion. It also accepted the existence of a blood feud arising from his murder of his wife, but left the associated human-rights claim undetermined.

The appeal concerned the effect of delay in the Upper Tribunal’s decision, the statutory presumption that KD constituted a danger to the community, the application of the Devaseelan guidelines to his repeated political-persecution claim, and the treatment of a late-produced arrest warrant. The Court also had to determine the appropriate disposal of the unresolved blood-feud claim.

The Court of Appeal allowed the appeal on Grounds 2 and 3. Ground 4 was subsumed in Ground 3, while Ground 1 did not independently justify allowing the appeal.

1. Delay. Delay in delivering an appeal decision is not itself a reason to allow an appeal. The question is whether the delay caused the decision to become unsafe, making it unjust to let it stand. That approach was stated in SS (Sri Lanka) v SSHD [2018] EWCA Civ 1391 and Bank St Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408. The Upper Tribunal’s delay was entirely unacceptable and its reasoning was remarkably slight, but the appeal was determined substantively by reference to the errors in the First-tier Tribunal’s decision.
2. Danger to the community. The assessment under section 72 of the Nationality, Immigration and Asylum Act 2002 requires consideration of the nature of the crime, the likelihood of further serious offending and the level of harm that might result. The First-tier Tribunal diluted the gravity of murder by treating it as a single offence, failed adequately to consider the consequences of repetition, and treated a reduction in the assessed risk to intimate partners as reassuring. The community includes intimate partners. A low likelihood of serious harm remains a real likelihood if it is not fanciful. In this case, the likelihood of future serious offending had to be so low that it could effectively be discounted. The evidence did not come close to establishing that. The statutory presumption was therefore not rebutted and KD was not eligible for Refugee Convention protection. The approach was consistent with EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630 and MA (Pakistan) v Secretary of State for the Home Department [2014] EWCA Civ 163.
3. Repeat appeals and late evidence. The Devaseelan guidance, approved in Djebbar v SSHD [2004] EWCA Civ 804 and summarised in BK (Afghanistan) v SSHD [2019] EWCA Civ 1358, requires the second tribunal to identify the issues common to the appeals and analyse what the first tribunal found and why. A general statement that the earlier decision is the starting point is insufficient. The later witnesses did not provide materially different, circumstantial evidence about KD’s historical activities. The First-tier Tribunal also failed to apply the required caution to omitted personal evidence and evidence concerning other family members, or to consider why the arrest warrant had not been produced earlier and whether it was reliable. The Upper Tribunal failed to correct those errors. The 2004 assessment of KD’s political activities was authoritative, so the asylum and human-rights claims based on imputed political opinion were dismissed. The principle in Tanveer Ahmed [2002] UKIAT 00439 required the document’s reliability to be assessed from the evidence in the round.
4. Blood-feud claim. The First-tier Tribunal’s findings were set aside. The blood-feud issue, including the existence of the feud, sufficiency of protection and internal relocation, was remitted to the Upper Tribunal for expedited consideration. No finding was preserved because those issues were closely connected.

• Court of Appeal (Civil Division) allowed the Secretary of State’s appeal on Grounds 2 and 3, set aside the First-tier Tribunal’s findings, dismissed the asylum and political-opinion human-rights claims, and remitted the blood-feud human-rights claim.
• Upper Tribunal (Immigration and Asylum Chamber) dismissed the Secretary of State’s appeal in a decision issued on 25 June 2024.
• First-tier Tribunal allowed KD’s appeal on asylum grounds in a decision promulgated on 20 December 2022. It accepted the alleged blood feud but left the related human-rights claim undetermined.