Fresh claim rejection successfully challenged in Upper Tribunal

The Home Secretary has had an absolute howler in the Upper Tribunal, it is one of those decisions that is worth a read in full if you have the time. It is a successful judicial review challenging a refusal to recognise further submissions as amounting to a fresh claim. This is important because the right of appeal attaches to refusal of a fresh claim but not to refusal of further submissions.

This is also a claim where the initial asylum claim was withdrawn by the Home Office who then refused to reinstate it, forcing him to use the fresh claim route instead. The case is DK v Secretary of State for the Home Department, case no: JR-2024-LON-002760. Honestly, how on earth did this get to a hearing (rhetorical).

Background

The applicant is a Turkish citizen of Kurdish ethnicity who arrived in the UK in February 2022 and claimed asylum on 16 June 2022. He did not attend his substantive asylum interview on 11 July 2023 and his claim was deemed withdrawn by the Home Office. He was unable to convince the Home Office to reinstate his claim and on 19 January 2024 he instead made further submissions.

On 11 July 2024 his asylum claim was refused and it was not accepted that the further submissions amounted to a fresh claim for asylum, meaning that he did not have the right to appeal the refusal. He instead challenged the decision by judicial review.

The judicial review

It was argued on behalf of the Home Secretary that the Home Office 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.” In making this argument, the Home Secretary relied on R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs & Anor [2025] EWHC 370 (Admin), one of the Diego Garcia cases.

The tribunal gave these arguments very short shrift, stating that [at 11]:

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.

The tribunal also said that the Diego Garcia case relied on by the Home Secretary was “fundamentally and obviously different”. It was also pointed out that the Home Secretary had not identified what specific public interest factors would weigh against this appeal in a protection claim.

Moving onto the decision itself, there are several areas of criticism of the refusal letter, including that the decision maker did not reference all of the relevant sections of the applicable country policy and information note (I suspect they did what I have just expressly warned against when recording the latest podcast, which is looking only at the summary section at the top of the report, without delving into the detail. Looking at paragraph 47 this does seem to be what has happened).

The first ground for judicial review was whether the decision maker had asked themselves the right question in considering whether or not the further submissions amounted to a fresh claim. Namely, that set out in WM (Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495: “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”.

I had to read this next bit from between my fingers. Paragraph 36 of the decision refers to the detailed grounds of defence, which:

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.

Counsel for the Home Secretary rowed back on that a bit and assured the tribunal that it was accepted that WM remained good law. The tribunal found that the suggested approach was “a significant departure from long-established principles and there is nothing in any of the caselaw relied on by the respondent that supports it”.

The second ground for judicial review was that the decision maker did not apply anxious scrutiny to the applicant’s case. The tribunal said that the decision letter “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.” The failure to consider the relevant sections of the country information and policy notes was given as an example of where anxious scrutiny had not been applied. There was also a failure to take into account the country context when assessing the plausibility of the applicant’s account, contrary to case law.

The tribunal concluded that:

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.

The judicial review succeeded on both grounds.

Conclusion

Pushing people into the fresh claim system after their asylum claim has been withdrawn against their will is an incredibly inefficient way to disenfranchise people. All it has done is introduce an intermediary step before a person can appeal their refusal, namely the need to bring a judicial review in order to access their appeal rights. The use of withdrawals in order to artificially “clear” the backlog was never going to work in the longer term. Treating their asylum claims as withdrawn does not have any effect on these people’s presence in the UK or their need for asylum.

I have said before that these withdrawal decisions should be properly audited and claims reinstated as initial asylum claims where necessary. That is what a responsible Home Office would do. I have no doubt that they will leave it to the courts and tribunals to deal with instead.

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