The Court of Appeal handed down judgment this week in the case of KD (Turkey) v Secretary of State for the Home Department [2026] EWCA Civ 349.
Background
KD and his wife had entered the country in 2001, and claimed asylum on the basis of their political opinion. Their claims were dismissed following an appeal hearing in 2004, where they were found to be wholly fraudulent.
The Secretary of State commenced deportation proceedings against KD after he was convicted of murdering his wife in 2005. KD was sentenced to life imprisonment with a minimum term of 12 years. In 2018, the Parole Board determined that his ongoing imprisonment was no longer necessary for the protection of the public and KD was released.
KD again claimed asylum on the basis of his political opinion as well as a blood feud that had arisen in connection with his wife’s family.
As a result of his conviction for murder, Article 33(2) of the Refugee Convention was engaged via section 72 of the Nationality Immigration and Asylum Act 2002. It was presumed that KD constituted a danger to the community by virtue of his conviction of a particularly serious crime, and so could not benefit from protection under the Refugee Convention, unless he was able to rebut this presumption under s.72(7) NIAA 2002.
KD succeeded in his appeal before the First-Tier Tribunal. The Judge was satisfied that KD did not constitute a danger to the community, notwithstanding his serious criminal conviction. He was therefore not excluded from protection under the Refugee Convention. The Judge allowed the asylum appeal on the basis of his political opinion, concluding that whilst the previous negative credibility findings in 2004 were the starting point, it was appropriate to depart from the previous findings based on all of the evidence before her. the Judge found KD and his supporting witnesses to be credible. Whilst the Judge accepted that there was a blood feud, she declined to make further findings regarding sufficiency of protection / internal relocation in this respect.
KD succeeded again in resisting the Secretary of State’s appeal to the Upper Tribunal. Unfortunately, the Upper Tribunal took roughly a year to hand down its decision.
Court of Appeal judgment
The Court of Appeal allowed the Secretary of State’s appeal.
The Court held:
1. The extreme delay in delivering the UT decision was entirely unacceptable (paragraph 32). However, the appeal did not succeed on this basis (paragraph 33).
2. The First tier Judge’s conclusions that KD did not constitute a danger to the community was perverse (paragraph 51).
The assessment of whether a person who has committed a particularly serious crime constitutes a danger to the community involves “consideration of the nature of the crime, the likelihood of further serious offending, and the level of harm that might result” (paragraph 47).
In KD’s case, “the type of harm was the most extreme form of domestic violence” (paragraph 48), and “in this context a low likelihood of serious harm is a real likelihood, in that it cannot be said to be fanciful” (paragraph 49). In this case, “the index offence and the feared harm were of such gravity that, in order to displace the statutory presumption, KD would have had to show that the likelihood of future serious offending was so low that it could effectively be discounted” (paragraph 51).
3. The First-tier Judge had failed to apply the guidance in Devaseelan correctly. The Court held:
“The guidelines in Devaseelan are an important weapon in the armoury of tribunals seeking to achieve a consistent approach that is fair to all parties when faced with similar or repeat appeals. However, as Dove LJ observed during argument, there is a danger that, being so familiar to specialist judges, they are not fully applied.
To illustrate, the first guideline, which created the concept of a ‘Devaseelan starting point’, calls for more than a recognition that there has been a previous decision. In order to identify the true location of the starting point for its own journey, the second tribunal must identify the scope of the issue(s) that may be common to the two appeals, and analyse what the first tribunal found and why. It is only by doing this that it can know what significance should properly be attached to the first appeal decision, before going on to apply the guidance as a whole. The other guidelines, insofar as they are relevant to the inquiry in the individual case, require equal consideration. A broad statement by the second tribunal that it is treating the first tribunal’s decision as its starting point is not an application of the Devaseelan guidance and is likely to lead to error, one way or the other” (paragraphs 65- 66).
This judgment is significant as it provides guidance on the correct approach to the assessment of the rebuttable presumption under s.72 NIAA 2002. The judgment indicates that the more serious the index offence and the greater the severity of harm, the lower the risk of re-offending will need to be in order for the presumption to be rebutted ie that there is an inverse relationship between these considerations. In addition, the judgment sets out a clear statement of the obligations upon a judge when determining a second appeal in light of the Devaseelan guidelines. Mere reference to the prior determination as the ‘starting point’ is not compliant with Devaseelan.
Jennifer Lanigan represented KD at all stages including in the Court of Appeal where she appeared as sole counsel, instructed by Virgos Solicitors. Her submissions, and those of her opposing counsel Zane Malik KC, were commended by the Court of Appeal as being of ‘a very high quality’.
The judgment can be viewed here.
The press summary can be viewed here.
The case has attracted media coverage, including:
https://rozenberg.substack.com/p/one-murder-is-enough
Further information
For more information from the public-law team, contact clerks@36public.co.uk
Involving Jennifer Lanigan
