KD v Secretary of State for the Home Department

Factual and Procedural Background

This is an appeal by the Appellant from an Upper Tribunal ("UT") decision upholding a First-tier Tribunal ("FtT") determination allowing the Respondent's appeal against refusal of asylum and related human rights protection. The Respondent, a national of The State, arrived clandestinely in The Country in 2001 with his spouse. An initial asylum claim was refused in 2001; an appeal to the FtT in 2004 (Judge Peart) dismissed that claim after adverse credibility findings. The Respondent remained unlawfully in The Country, and in 2005 murdered his spouse. He was convicted of murder and imprisoned, released under supervision in 2018, and served with deportation liability. In 2016–2019 he made fresh asylum and human rights claims relying on imputed political opinion and a subsequent risk from an alleged blood feud arising from the murder. The Secretary of State refused those claims in 2019 (relying inter alia on a s.72 certification). The FtT (Judge Scott) allowed the Respondent's 2022 appeal on asylum grounds (finding he rebutted the s.72 presumption and accepting new evidence and an arrest warrant), and declined to determine some aspects of the human rights claim given that finding. The UT (Judge Perkins) dismissed the Appellant's appeal. The Appellant obtained permission to bring the present appeal to this court. The court allows the appeal in part, sets aside the FtT findings on asylum and imputed political-opinion human rights claims, dismisses those claims, and remits the blood-feud human rights issue to the UT for expedited determination.

Legal Issues Presented

1. Whether delay by the UT in promulgating its decision rendered that decision unsafe (procedural impropriety).
2. Whether the FtT erred in law in concluding that the Respondent had rebutted the s.72 presumption that he constituted a danger to the community (and thus remained eligible for protection under Article 33(1)).
3. Whether the FtT misapplied the Devaseelan guidance for treating prior tribunal determinations when assessing repeated or similar claims and whether its treatment of subsequently produced documentary evidence (notably an arrest warrant) was lawful and reliable.
4. Whether the UT erred in failing to correct any errors in the FtT's reasoning on the above points.

Arguments of the Parties

Appellant's Arguments

• The UT's 12-month delay in promulgating its decision rendered it unsafe and showed failure to engage properly with oral submissions.
• The FtT's s.72 / dangerousness analysis was inadequately reasoned and perverse; it over-relied on absence of other offending, probation assessments, downgraded risk ratings, and expressions of regret.
• The FtT misdirected itself or misapplied the Devaseelan guidelines when treating the earlier adverse credibility findings and when admitting/weighting later-produced evidence (including the 2001 arrest warrant); Tanveer Ahmed principles on document reliability were not properly applied.

Respondent's Arguments

• The FtT's decision was one that a reasonable decision-maker could reach; it properly started from the 2004 decision but was entitled to accept new, cogent witness evidence and documents produced later.
• Probation and Parole Board material, demonstrable remorse/regret, and lack of reoffending since release were legitimate factors to rebut the s.72 presumption.
• Any shortcomings in expression of reasons do not amount to legal error; the UT was correct to dismiss the Appellant's complaints.

Table of Precedents Cited

Court's Reasoning and Analysis

The court proceeded in ordered stages.

1. Delay: The court acknowledged authority that excessive delay may render a decision unsafe (SS (Sri Lanka); Bank St Petersburg). It found the UT's 12-month delay in issuing its decision unacceptable and that the UT's published reasoning on dangerousness was very short and arguably mischaracterised the oral submissions. However, delay alone did not decide the appeal; the substantive errors in the FtT's reasoning remained the decisive focus.

2. Legal framework for dangerousness: The court set out Article 1 and Article 33 of the Refugee Convention and s.72 NIAA 2002 (the statutory presumption that a person convicted of a particularly serious crime constitutes a danger to the community, rebuttable by evidence). It noted EN (Serbia) on the need for a real danger and the relevance of a real risk of repetition.

3. Review of FtT dangerousness reasoning: The FtT accepted the statutory starting point but concluded the Respondent had rebutted the presumption, relying on (a) the single-offence nature of the crime, (b) absence of further offending since release, (c) participation in rehabilitative courses and probation supervision, (d) downgraded risk assessments and expressions of remorse/regret. The court analysed these factors and concluded that, given the gravity of the index offence (murder) and the foreseeable severity of any repetition (particularly intimate-partner serious harm), the FtT failed to give adequate weight to the nature and consequences of the offence and to the existing risk assessments. The FtT treated a "low" or "medium" likelihood of serious harm as effectively insignificant; the court held this was impermissible because even a low likelihood of serious harm is a real likelihood in the deportation context. Applying the Miftari perversity standard, the court concluded the FtT's conclusion that the s.72 presumption was displaced was not one a reasonable decision-maker could reach and was therefore perverse.

4. Devaseelan and late documentary evidence: The court reviewed Devaseelan and the BK (Afghanistan) summary of its guidelines. It explained that a later adjudicator must begin with the earlier determination as the "starting point" in a meaningful way: identify the common issues, analyse what the earlier tribunal found and why, and then decide which guidelines apply. The court found the FtT had failed to apply the guidelines methodically. In particular, the FtT (a) did not meaningfully treat Judge Peart's 2004 adverse credibility findings as authoritative on the Respondent's past political activity between 1994–2001; (b) treated witness evidence from family members and a late-produced 2001 arrest warrant as if it created materially different facts without giving reasons why those sources overcame the earlier adverse findings; (c) did not explain why the arrest warrant had not been produced in 2004 or why AD (a family witness) had not given evidence earlier; and (d) did not treat evidence of other family members' experiences with adequate caution. On Tanveer Ahmed principles, the court emphasised that documentary reliability must be demonstrated by the claimant; the FtT did not satisfactorily address reliability issues arising from the warrant's late production. The UT failed to correct these legal errors.

5. Consequences for the human rights claims: Because the FtT's acceptance of the asylum claim on imputed political opinion underpinned its approach to related human rights issues, the court concluded that the asylum and political-opinion human rights claims must be dismissed. The FtT's separate finding about an alleged blood feud was not preserved as reliable: the court set aside the FtT's related findings and remitted that matter for fresh and expedited consideration by the UT, explaining that the issues of feud existence, sufficiency of protection and internal relocation are intertwined and require reconsideration in light of the quashing of other findings.

Holding and Implications

APPEAL ALLOWED IN PART

Holding:

• The court allows the Appellant's appeal on Grounds 2 and 3 (Ground 4 subsumed). It finds the FtT's decision that the s.72 presumption was rebutted was perverse and that the FtT misapplied the Devaseelan guidance and failed adequately to test the reliability of late-produced documentary evidence (notably the 2001 arrest warrant).
• The FtT's findings on asylum and human-rights protection based on imputed political opinion are set aside and those claims are dismissed.
• The human-rights claim based on an alleged blood feud was left undetermined in a manner requiring fresh decision; the court remits that issue to the UT for expedited consideration and directs that prior FtT findings on the feud are not preserved.

Implications:

• Direct effect: The Respondent is not eligible for protection under the Refugee Convention on the basis of imputed political opinion; the Respondent's asylum and political-opinion human-rights claims are dismissed. The blood-feud human-rights issue must be reconsidered by the UT without reliance on the disturbed FtT findings.
• Procedural/normative effect: The decision reinforces the proper, methodical application of the Devaseelan guidelines when a tribunal re-hears matters previously determined and emphasises careful scrutiny of late documentary evidence under Tanveer Ahmed. The court recorded that the UT's delay in issuing its decision was unacceptable but did not by itself determine the outcome.