Tribunal decisions

The decision

Case No: JR-2024-LON-002760
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

29 April 2025
Before:

UPPER TRIBUNAL JUDGE RUDDICK

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Between:

THE KING
on the application of
DK
(Anonymity direction in place)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr A. Slatter
(instructed by Virgo Solicitors), for the applicant

Mr J. Yetman
(instructed by the Government Legal Department) for the respondent

Hearing date: 15 April 2025

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J U D G M E N T

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Introduction
1. If an asylum-seeker fails to attend their substantive asylum interview, the Secretary of State may treat their asylum claim as withdrawn under Para. 333C of the Immigration Rules. If the asylum-seeker later tries to pursue their asylum claim, the respondent will consider it in the “further submissions” process rather than under the normal asylum procedures. The claim may be decided on the papers, without a substantive interview, and there is no automatic right of appeal against a refusal decision. There is only a right of appeal if the Secretary of State considers that the claim meets the test for being considered a “fresh claim” that is set out at Para. 353 of the Immigration Rules.
2. Para. 353 states:
“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
“(i) had not already been considered; and
“(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”
3. In this application for judicial review, there is no dispute about the first question. There had been no prior consideration, as the applicant’s claim had been treated as withdrawn. The applicant contends that the respondent never properly asked herself the second question, and that no rational decision-maker could have decided the question against him.
4. For the reasons set out below, I am firmly persuaded that he is right on both counts.
The challenged decision
5. The applicant is a citizen of Turkey and is accepted to be of Kurdish ethnicity. He arrived in the UK in February 2022 and on 16 June 2022, he claimed asylum. He said that he feared persecution in Turkey for reasons of his political opinions, political opinions that had been falsely attributed to him by the state, and his unwillingness to complete mandatory military service in the future. However, he failed to attend a substantive asylum interview scheduled for 11 July 2023, leading the respondent to treat his claim as withdrawn. He was unsuccessful in persuading the respondent to reinstate his asylum claim, and on 19 January 2024, he made further submissions. These further submissions consisted of a detailed witness statement and representations from his legal representatives detailing independent country evidence that was said to show that he would be at real risk of persecution on return.
6. The respondent’s task at this point was clear. See, e.g.: WM (Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495 [6]-[7]; R (on the application of Akber) v Secretary of State for the Home Department (paragraph 353; Tribunal’s role) [2021] UKUT 00260 (IAC) [52], [55]; Home Office, Further submissions, Version 11.0 [pp. 27-30]. First, she was required to decided for herself whether to grant the applicant leave to remain on any basis. In this case, she decided not do so. Second, having decided not to grant the applicant leave to remain, she was required to ask herself whether the applicant’s claim should be treated as a “fresh claim” as defined at Para. 353 of the Immigration Rules, set out above. She decided it should not.
7. Her decision was set out in a decision dated 11 July 2024. The applicant says that that decision was not lawful.
8. The task of the Upper Tribunal at this point is also clear. It is not to remake the decision, but to review it for Wednesbury irrationality or other public law error: WM at [10]-[11]; Robinson (formerly JR (Jamaica)) v Secretary of State for the Home Department [2019] UKSC 11 at [37]; Akber at [89]. This task, too, requires asking two questions:
(i) Has the respondent’s decision-maker asked themselves the right question? As set out in the landmark case of WM at [11]:
“The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return. […] The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind.”
(ii) In addressing that question, has the respondent satisfied the requirement of anxious scrutiny?: WM at [11]. The reasoning of the challenged decision must show that “every factor which might tell in favour of an applicant has been properly taken into account.” R (YH (Iraq)) v Secretary of State for the Home Department [2010] EWCA Civ 116 [2010] at [24]; KP, R (on the application of) v Secretary of State for Foreign, Commonwealth and Development Affairs & Anor [2025] EWHC 370 (Admin) at [80].
9. In answering these questions, the Upper Tribunal must look at the decision letter as a whole and interpret it “objectively, in the round and in substance”: Akber [62].
The weight to be given to the “need for effective immigration control” in the review of a Para. 353 decision
10. In her skeleton argument, the respondent further argues that her decision-maker was required to “offset” the factors that could tell in favour of the appellant against the “public interest”, and that this Tribunal should regard the “need for effective immigration control” as weighing in favour of a “lawful read” of the respondent’s decision. The respondent relies here on what was said in KP at [78]:
“the importance of the claimant’s interests is not the only factor relevant to the court’s approach to a complaint of outcome irrationality. The nature and importance of the public interests on the other side of the balance may also be important. In some fields, institutional considerations may require the court to recognise that it is less well-placed than a democratically accountable decision-maker to evaluate the impact that a particular decision may have on a particular public interest, or the weight to be accorded to that impact. Equally, constitutional considerations may dictate that the court should pay particular respect to the views of a democratically accountable decision-maker about how to balance the public and private interests. In such cases, even where a decision will have grave consequences for the individual, the court may have to afford the decision-maker a wide margin when considering whether the outcome is irrational.”
11. As noted above, there is a line of jurisprudence going back almost 20 years and recently reaffirmed by the Supreme Court in Robinson that sets out how this Tribunal should review the respondent’s fresh claim decisions. Nowhere in that jurisprudence is it suggested that the question of whether a protection claim has a realistic prospect of success involves a balance between private rights and the public interest. There is not, for example, any suggestion that there is a public interest in denying a right of appeal to a person who might be at risk of persecution, and that this should be weighed against the strength of their claim. Nor is there any suggestion that it is in the interests of “effective immigration control” for this Tribunal to “read” the respondent’s decisions as lawful when they are not.
12. There is nothing in KP, moreover, that would justify such an extraordinary step in this case. The legal and factual context in KP was fundamentally and obviously different.
13. In the first place, the claimant in KP was in the respondent’s custody on Diego Garcia and was seeking to challenge the respondent’s decision not to grant him leave to enter the UK outside the rules: [3]. One issue in the claim was the rationality of the respondent’s decision that there was a realistic prospect that he would be admitted to a third country within a reasonable timeframe. The High Court recognised that this decision “involved a prediction about what foreign states might do in the context of a diplomatic negotiation” and considered that it was the therefore appropriate to “accord great respect to the view of the FCDO, because of its institutional experience and expertise” [82]. In rejecting the applicant’s claim, it was only with regard to that issue that the court took into account the respondent’s institutional expertise [93]. When considering the rationality of the respondent’s assessment of the medical evidence at [86]-[89], by contrast, the Court made no reference to any need for deference to the respondent’s expertise.
14. Unlike between the High Court and the FCDO in the field of diplomatic relations, there is no significant difference in experience and expertise between this Tribunal and the respondent’s decision-maker in determining the issues in this case, namely whether there is a realistic prospect that a First-tier Tribunal judge would allow the applicant’s protection appeal.
15. Secondly, the High Court was in part reviewing how the respondent had balanced the impact on KP’s mental health of continued detention on Diego Garcia against three clearly identified reasons that his admission to the UK would not be in the public interest. The first was that KP was part of a group of asylum-seekers who had arrived on Diego Garcia after a dangerous journey by sea; admitting any of them to the UK would risk opening up a “new route to the UK for migrants.”: [21]. The second was that KP had been convicted of arson and four counts of sexual assault against a woman; these offences were not only very serious but also recent. Admitting KP to the UK would pose an “inevitable” risk to public safety: [28(b)]. The third was that his admission to the UK under these circumstances was assessed as posing a high risk of undermining public confidence in the immigration system: [28(f)].
16. The respondent has not identified any specific public interest factors weighing against recognising this applicant’s right to an appeal to the First-tier Tribunal.
The challenged decision
17. I begin my analysis by looking at the respondent’s decision in the round; unfortunately, the decision has neither paragraph nor page numbers.
18. The decision begins by setting out the applicant’s claim:
(i) He claims to be a national of Turkey, and the decision proceeds on that basis.
(ii) He claims to be at risk of persecution because he is a supporter and activist on behalf of the HDP and has been suspected of involvement with the PKK.
(iii) He also fears persecution because of his “unwillingness to agree to military conscription”.
19. Following a consideration of the whether the applicant’s claim engages the Refugee Convention, the decision-maker turns to the merits of the claim. This section of the decision is introduced as follows:
“Submissions that have not previously been considered but which do not create a realistic prospect of success
“Protection-based Submissions
“Below is a consideration of the protection-based submissions that have not previously been considered, but that taken together with the previously considered material, do not create a realistic prospect of success before an Immigration Judge:”
20. This is obviously a template introduction, as there was no previously considered material.
21. The first section of the consideration of the merits of this applicant’s claim is entitled “People’s Democratic Party (HDP)”. This begins with the statement, “You claim that you are a HDP supporter and an activist which would place you at risk of persecution on return to Turkey.”
22. The decision maker then sets out five paragraphs from the policy “Assessment” section of the CPIN Turkey: People’s Democratic Party/ Green Left Party (HDP/YSP), October 2023. This includes the policy assessment that “In general, simply being a member or supporter of the HDP/YSP is not likely to result in a person facing persecution. However, the risk faced will depend on the person’s profile and activities” and that “ordinary members” of the party have “generally” come to the attention of the authorities while participating in demonstrations or rallies or “speaking out on Kurdish political issues including on social media”.
23. The CPIN Assessment is then quoted as recognising that the country guidance case of IA and others (Risk-Guidelines-Separatist) CG [2003] UKIAT 00034 is relevant to the assessment of risk and contains a list of risk factors. However, the decision-maker takes the view that the starting point must be to assess the credibility of the person’s account. Nothing more is said about the factors listed in IA. Mr Slatter accepted at the hearing before me that there was nothing wrong with this approach in principle; if the applicant’s account was rejected, none of the IA factors would arise other than Kurdish ethnicity.
24. The final excerpt from the Assessment is [3.1.5] of the CPIN:
“It should be noted that attracting the adverse attention of the authorities and being arrested and detained is not the same as, and does not automatically equate to, a well-founded fear of persecution or real risk of serious harm. Similarly, being detained can encompass various types of treatment, not all of which would breach Article 3 ECHR or create a future well-founded fear of persecution or real risk of serious harm.”
25. There is no reference to any of the content of the “Country information” section of the CPIN.
26. Returning to the applicant’s claim, it is noted that he had “provided no evidence to substantiate” that he had been “detained and tortured in Turkey due to [his] Kurdish political activities”. The two points outlined above at [20] and [22] are then paraphrased; it is not clear what the purpose of the repetition is, but it may be that it is by way of an implied assertion that the applicant’s claim is not to be believed because it is inconsistent with the respondent’s policy assessment. Finally, the appellant’s account did not indicate that he had a “significant political profile”.
27. The next section of the decision is entitled “Kurdistan Workers’ Party (PKK)”. This begins with the statement, “You claim that due to your Kurdish political activities, the Turkish authorities have suspected of your [sic] involvement with the PKK and thus you are at risk of persecution on return to Turkey.”
28. The decision-maker then turns again to an Assessment section of a CPIN, in this case, Turkey: Kurdistan Workers’ Party, October 2023. This contains several statements of general legal principles and government policy, such as that the Turkish government has the right to act against terrorism, that those fleeing legitimate prosecution are “not normally refugees” and that the standard for a grant of leave on the basis of a potential breach of article 6 ECHR is a “flagrant violation”. More relevant is the policy assessment at [3.1.2] that “in general […] those suspected of being associated with […] the PKK and its affiliates are likely to face prosecution, rather than persecution […]” This is, however, contradicted by the assessment at [3.1.14], which the decision-maker also includes:
“3.1.14 There were reports that the counter-terrorism arrest laws were widely used to limit free expression on grounds of national security. Alongside persons who are suspected of belonging to or carrying out activities on behalf of the PKK, other groups most at risk of being targeted include journalists criticising the government and/or reporting on efforts against the PKK and the Gulen movement; lawyers, particularly those acting on behalf of individuals accused of PKK involvement, and human rights defenders who have released statements relating to the PKK or that are critical of the government. Those arrested are most often charged with ‘membership of a terrorist organisation’ or insulting the Turkish state (see State treatment of individuals suspected of PKK membership/affiliation).”
29. It does not appear that the decision maker did go on to consult the referenced section “State treatment of individuals suspected of PKK membership/affiliation”, or any other “Country information”. There is no reference to it.
30. The reference to the CPIN concludes with the policy assessment at [3.1.15]: “The law prohibits arbitrary arrest and detention. There are reports that authorities do not always adhere to the law – however, this does not appear to reflect the situation in general.” This appears to mean that “in general” the authorities do adhere to the law. It is unclear what this assessment is based on, as the only reference to protections against arbitrary arrest and detention in the Country information section is an excerpt from the USSD Human Rights report at [11.1.2]:
‘The law prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of arrest or detention in court, but numerous credible reports indicated the government did not always observe these requirements. [ellipsis in original] … Domestic and international legal and human rights groups criticized the judicial process in [terrorism-related] cases, asserting the judiciary lacked impartiality and defendants were sometimes denied access to the evidence underlying the accusations against them.’
31. Turning to the applicant’s claim, the respondent then sets out the applicant’s account of how he came to be suspected of supporting the PKK, as follows:
“you, [K], and a couple of friends drove into the mountains for a trip. You had no idea that you were about to meet with some PKK guerillas, but [K]’s friend wanted you to be educated about the PKK. You chatted with the guerillas until around 15:00 when you heard a helicopter. You and [K] decided to run, however, you were intercepted by soldiers and gendarmes, and you were taken to a local gendarme station where you were fingerprinted, photographed and put in separate cells. You stated that they demanded you to become an informer, and if you disagreed you would receive an electric shock as they had strapped you to a chair and put electrodes on your toes. You were later released and was [sic] told that you had to attend police station […] every two weeks. However, you and [K] left Turkey in the back of a lorry on 14/02/2022 as you were accused of being in the PKK and threatened with being sent to prison.”
32. This account was rejected for two reasons: there was “no evidence to substantiate” it and it was “not plausible that you and [K] were the only ones arrested in a situation where there was a helicopter circling the area, and where there were soldiers and gendarmes intercepting the area.”
33. The final substantive section of the decision considers whether the applicant would be at risk because of his refusal to perform military service. The representations in support of the applicant’s fresh claim did not raise a separate risk on this basis, nor is one asserted in the judicial review grounds (although the grounds do argue that it is a risk factor listed in IK (Returnees - Records – IFA) Turkey CG [2004] UKIAT 00312)). Mr Slatter confirmed at the hearing before me that the challenge was primarily to the two preceding sections of the decision.
34. The decision then applies the findings made on the applicant’s protection claim in order to reach the conclusions that he was not entitled to humanitarian protection or to leave on the basis of article 8.
35. There is no separate consideration of the second stage of the further submissions process, namely, whether the claim meets the requirements of Para. 353. There is simply a Summary Refusal Paragraph that sets out the decision-maker’s conclusion on the question but contains no reasons:
“I have concluded that your submissions do not meet the requirements of Paragraph 353 of the Immigration Rules and do not amount to a fresh claim. The new submissions taken together with the previously considered material do not create a realistic prospect of success. This means that it is not accepted that should this material be considered by an Immigration Judge, that this could result in a decision to grant you asylum, Humanitarian Protection, limited permission to stay on the basis of your family and/or private life or Discretionary permission for the reasons set out above.”
Ground One: Did the respondent ask herself the right question?
36. In her detailed grounds of defence, the respondent appears to accept that her decision-maker did not treat the question of whether the claim had a realistic prospect of success as “distinctly different” from the question of what they thought of it. Instead, she asserts that decision-maker “evidently cannot step into the shoes of the objective judge” and that “this process is always carried out from the Respondent’s view”. This runs directly contrary to the principles established almost 20 years in WM at [11] and reiterated multiple times since then.
37. At the hearing before me, Mr Yetman resiled from this position and assured me that it was accepted that WM remained good law and that the respondent must ask herself not only what she made of the claim but also whether there was a realistic prospect that a First-tier Tribunal judge might accept it. He submitted that this was what had been done in the decision. When I asked him to take me to any evidence that this had been done, he pointed to the heading that proceeded the consideration of the claim: “Submissions that have not previously been considered but which do not create a realistic prospect of success” and the statement in the section headed “Summary Refusal Paragraph”. He conceded that in the absence of the heading at the beginning of the decision, the respondent would be in some difficulty on this point.
38. However, I consider that this submission runs directly contrary to the requirement to consider the challenged decision “objectively, in the round and in substance”: Akber [62]. What matters is the substance of the decision, not the generic template paragraphs.
39. Mr Yetman then tried to persuade me that it was apparent from the substance of the decision that the decision-maker had gone beyond making up their own mind about the claim and had stood in the shoes of a First-tier Tribunal judge throughout (in direct contradiction to the Detailed Grounds of Defence, which argue that this is impossible). Essentially, his submission was that the respondent only needs to ask herself one question, if that question is whether the claim would have a realistic prospect of success on appeal. Contrary to what is said in WM, she does not need to ask herself two distinct questions.
40. I consider that this is a significant departure from long-established principles and there is nothing in any of the caselaw relied on by the respondent that supports it. Not only does WM refer to two “distinctly different” questions, but Akber breaks down the decision-making process into eight different stages. Stage 5 is “The Respondent considers whether to accept or reject the further submissions on their merits”. Stage 6 is that if she does, she grants an appropriate form of leave. Stage 7 is “If the Further Submissions are rejected, the Respondent goes on to consider whether they nonetheless amount to a fresh protection or human rights claim; i.e. a categorisation decision is made” (emphasis added). It is also inconsistent with the respondent’s own published guidance, cited above, which expressly sets out a two-stage process.
41. Even if I am wrong about that, and it would be permissible for the respondent to ask herself only if the claim had a reasonable prospect of success on appeal, as set out in more detail below, it would not have been open to any reasonable decision-maker to answer that question in the negative for the reasons given in this decision.
Did the decision-maker apply anxious scrutiny to the applicant’s claim?
42. The challenged decision displays multiple failures of reasoning sufficient to establish that the decision maker did not apply anxious scrutiny to the claim. Indeed, in places they did not apply basic principles of asylum decision-making. It cannot rationally be considered that a decision-maker who did not themselves apply anxious scrutiny to the claim was rationally able to conclude that the claim had no realistic prospect of success before a First-tier Tribunal judge.
43. As Mr Yetman conceded at the hearing before me, the refusal decision turned on the rejection of the applicant’s account. That account can be summarised as that he had been a low level activist for the HDP since at least 2018. He had come to the attention of the authorities while leafletting and been accused of being a terrorist and threatened with arrest, but he had not been arrested or otherwise harmed. In early 2022, he had been spotted by the army while meeting with PKK guerillas in the mountains, arrested, detained and tortured. He had been forced to agree to become an informer, and was required to report to the police two weeks after his release. He had then fled the country. In addition, he does not hold a Turkish passport and will refuse to do military service. Given the risk factors identified in IA and IK and the country evidence in the CPINs that were before the decision-maker (in particular, Sections 12 and 14 of the HDP CPIN and Section 12.4 of the PKK CPIN), there clearly is a realistic prospect that a First-tier Tribunal judge would allow the applicant’s appeal if this account were accepted.
44. I consider that no reasonable decision-maker, applying anxious scrutiny, could conclude that there was no realistic prospect of a First-tier Tribunal judge accepting the applicant’s account. The respondent’s reasons for rejecting it are simply inadequate to justify such a conclusion. There has been no previous judicial determination rejecting the applicant’s credibility, there are no apparent internal inconsistencies in his statement, and there is no identified inconsistency with the independent country evidence. In her Detailed Grounds of Defence, the respondent points to an inconsistency between what the applicant said at his screening interview and what he said in his statement, but this was not relied on in the challenged decision and therefore cannot be used to defend it after the fact.
45. The respondent’s first reason for rejecting the account is that it was not “substantiated”. Yet there is no indication that the respondent’s decision-maker asked themselves whether “substantiating” evidence was reasonably available. The respondent does not dispute this in her summary grounds of defence; instead, she simply asserts that she was “entitled to conclude that lack of corroborative evidence meant there was no realistic prospect of success”. This approach runs directly counter to MAH (Egypt) v SSHD [2023] EWCA Civ 216 and the long line of caselaw reaffirmed therein. It cannot be in accordance with the duty of anxious scrutiny to disregard long-established principles of asylum decision-making. Nor cannot it be in accordance with that duty not to consider that there was a realistic prospect that a First-tier Tribunal judge would make their decision in accordance with those principles.
46. The respondent argues in her Detailed Grounds of Defence that the respondent also assessed the credibility of the appellant’s account against the country evidence. This is, of course, something she was required to do by Para. 339J(i) of the Immigration Rules and the respondent’s own credibility assessment guidance, and it is normally part of a structured approach to credibility. See, e.g. KB & AH (credibility-structured approach) Pakistan [2017] UKUT 00491 (IAC) [27]. However, I do not consider that it is even arguable that she did so.
47. In the first place, all of the decision-maker’s references to the CPIN are to the “Assessment” section. This is not, in itself, country evidence. See: KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) at [301] and Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 00001 (IAC). There is not a single reference to the “Country information”.
48. Moreover, no rational decision-maker applying the well-established standard of “real risk” could have considered that the vague and equivocal statements and general principles of law found in these particular Assessment sections of the CPIN provide a sufficient basis for a decision in a specific claim. The duty of anxious scrutiny would have clearly required consideration of the country information section when faced with statements such as that “not all” detention involves violations of article 3.
49. Finally, there is nothing in the decision that suggests that the account was rejected because it was considered to be inconsistent with the CPIN. It is true that in the paragraph considering the applicant’s account of his HDP activism, the decision-maker repeated the CPIN’s assessment that “ordinary members of the HDP” are “unlikely to attract the adverse attention of the authorities” unless they are participating in demonstrations or expressing their views on social media and that “not all” detention involves torture or inhuman and degrading treatment. However, these assessments could not provide a rational reason for rejecting the account as untrue. This is not only because they are so vague but also because there is no inconsistency with the account. The applicant does not say that he was arrested let alone tortured because of his HDP activism. What he says is:
“11. In June 2018 there was an election in Turkey. I was not really involved heavily but did go out in the HDP campaign for the election with [K] from time to time. […] We would attend and participate in meetings and take out leaflets and things. Once when we were doing this the police came and took our leaflets and accused us of being terrorists and threatened to arrest us, but they didn’t.
“12. I had no other problems because of my politics until 7th January 2022. I carried on my activities and attended the party meetings, etc.”
This is in fact consistent with the broad statements from the Assessment repeated by the decision-maker.
50. Nor is there anything to suggest that the decision-maker rejected the applicant’s account of the events of early 2022 after viewing it in the context of the country evidence. Not only are the references again only to the “Assessment” section and not to the “Country information” section of the CPIN, but nothing in the quoted excerpts from the Assessment is relevant to the reason that this aspect of the claim was rejected, namely, that it was not “substantiated” and that it was not plausible that only the applicant and K were arrested.
51. Mr Yetman sought to persuade me that it was open to a reasonable decision maker to reject the applicant’s account of the events of early 2022 on plausibility grounds. I do not agree. In the first place, it cannot be rationally said that the applicant’s account is “so far-fetched that it is incapable of belief”. There is nothing inherently implausible in the army managing to arrest only the applicant and K. According to the applicant’s account, the group had been spotted from a helicopter, and the PKK guerillas told the applicant and his friend to hide. They rejected this advice and instead “got scared” and “decided to run”. This key aspect of the account has been omitted from the summary in the refusal decision. It is not inherently implausible that those who hid evaded capture while those who made a run for it did not.
52. Moreover, it is trite that any plausibility assessment must take into account the country context in which the claimed events occurred. See: Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 [25], HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 [27-30]. Any reasonable decision-maker applying anxious scrutiny to the claim would have had regard to this principle, which is not only common sense but now a legal principle of almost 20 years’ standing in this jurisdiction. There is nothing to indicate that that was done here.
53. Even if I am wrong about that, and it was open to a rational decision-maker to find that it is so inherently implausible that those who chose to hide escaped detection that the claim was not reasonably likely to be true for essentially that reason alone, I do not agree with Mr Yetman that that is the end of the question. The question is not whether no rational decision-maker could have come to this conclusion. It is whether a rational decision-maker, having come to that conclusion, could have also concluded that there was no realistic prospect of a First-tier Tribunal judge taking a different view. I consider that they could not. As Mr Yetman conceded, there is a realistic prospect that a First-tier Tribunal judge would be familiar with and seek to apply Y and HK. There is therefore a realistic prospect that a First-tier Tribunal judge might have taken into account any number of aspects of the country context – for example, how long the PKK have been involved in an armed struggle against the Turkish army, to what extent they are normally based in the mountains, and what the terrain is like – and concluded that it is reasonably likely that the PKK guerrillas were able to find a suitable hiding place.
54. Finally, there is a realistic prospect that a First-tier Tribunal judge would know and take into account the guidance in KB and AH. This reminds judges at [28]-[29] that plausibility is a credibility indicator that requires “a certain degree of caution in its application” and that it should normally be considered alongside other credibility factors.
55. In summary, any rational decision-maker would have recognised that there was a realistic prospect that a First-tier Tribunal judge would hesitate to disregard the guidance of the Upper Tribunal and the Court of Appeal and would not reject this asylum claim on the grounds of lack of substantiation and implausibility alone, especially when neither question had been considered in the country context.
Conclusion
56. For these reasons, I allow the applicant’s claim for judicial review on both grounds.
57. The respondent’s decision of 11 July 2024, which refused to treat the applicant’s further submissions as a fresh claim under paragraph 353 of the immigration Rules, is quashed.
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