Convicted murderer excluded from protection of Refugee Convention

The Court of Appeal has overturned a tribunal decision that a convicted murderer who was refused asylum over 20 years ago was entitled to refugee status. The case is KD v Secretary of State for the Home Department [2026] EWCA Civ 349 and there were two main grounds for the decision. 

Firstly, it was not reasonably open to the tribunal to conclude that a convicted murderer assessed by the probation board as medium risk of reoffending against an intimate partner and a low risk of offending against everyone else was not a danger to the community. The tribunal’s decision on this was held to be perverse.

Secondly, the tribunal had failed properly to take into account the previous tribunal determination from 20 years ago finding that the appellant was a liar and not telling the truth about the facts of his asylum claim.

However, the tribunal had omitted to make findings about the appellant’s claim to be the subject of a blood feud as result of the murder he had committed. The case was therefore remitted to the Upper Tribunal for fresh findings of fact on that aspect of the case.

Background

The background to the case is grim. KD, a Turkish citizen and a Kurd, entered the UK in August 2001 accompanied by his wife. He claimed asylum and was refused in October 2001. He appealed and his appeal was dismissed in 2004. The judge found KD and his wife ‘wholly unreliable witnesses’ who were ‘hesitant, confused, vague and evasive’ in their evidence and concluded they had manufactured ‘wholly fraudulent asylum applications with no truthful foundation’. That was a pretty strong set of factual findings.

In 2005, KD murdered his wife by stabbing her multiple times ‘in a fit of jealous rage’, as the Court of Appeal puts it. He was convicted in 2007 and sentenced to life imprisonment with a minimum term of 12 years.

In 2016, the Home Office notified him that he was liable to deportation on release. In response, KD made another asylum and human rights claim. He was released in August 2018. It took until January 2019 for the Home Office to refuse the asylum and human rights claim. KD appealed and the appeal was heard in November 2022.

Despite the very strong findings from 2004, the new judge this time accepted the asylum claim. The basis of the decision was an arrest warrant from 2001 that had not been shown to the last judge and two new witnesses who were relatives of KD. As the Court of Appeal observes, one other potential witness, KD’s wife, was no longer available to give evidence.

The Home Office appealed to the Upper Tribunal and the case was heard in July 2023. A decision was not issued until June 2024, remarkably, and even then was said by the Court of Appeal to be ‘remarkably slight’. This delay was condemned by the Court of Appeal as ‘entirely unacceptable’ but as an appeal point it ultimately led nowhere.

Danger to the community

The Refugee Convention was deliberately drafted so as not to protect particularly bad people. Some will applaud this as common sense and others will condemn it as a breach of the principle of a universal minimum standard of protection. 

There were two related reasons why the approach was adopted. In the immediate aftermath of the horrors perpetrated before and during the Second World War the idea was that some very bad people should not be protected. It was also recognised that states would not sign up to this new convention if it did protect such people. A convention that no-one ratifies is no use to anyone.

There are two exclusion clauses. Article 1F prevents some individuals from being recognised as a refugee. Article 33 is the critical action clause of the convention as it prevents refoulement, the return of a refugee into a situation of danger. It has a carve out, though:

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

This clause of the convention is explicitly written into domestic law at section 72 of the Nationality, Immigration and Asylum Act 2002. A person is presumed to be a danger to the community if they have been sentenced to two years imprisonment (now 12 months under the Nationality and Borders Act 2022) but the presumption is rebuttable.

It was common ground in KD that murder was a ‘particularly serious crime’. However, for Article 33 and section 72 to kick in, KD also had to be a danger to the community of the country.

The Court of Appeal was unimpressed by the First-tier judge’s reasoning. The assessment needed to consider ‘the nature of the crime, the likelihood of further serious offending, and the level of harm that might result’ and the judge had lost sight of that last consideration in particular. The medium risk of potentially catastrophic harm to an intimate partner did not seem to have been factored in and even without that:

a low likelihood of serious harm is a real likelihood, in that it cannot be said to be fanciful.

The severity of the offence and the level of harm were such that KD would have needed to show the likelihood of future serious offending was ‘so low that it could effectively be discounted’. The evidence came ‘nowhere near’ supporting such a conclusion and the tribunal’s decision was perverse. This is not a word judges use lightly.

Devaseelan and past appeal determinations

The case of Devaseelan is an old tribunal determination about how to deal with previous appeals on the same or similar facts. The Devaseelan approach and guidelines have been approved by the Court of Appeal several times. Essentially, the findings of the previous judge do not formally bind a later judge but they should form the starting point for the later judge. That later judge will also need to consider any subsequent events since the previous determination and any evidence or documents not seen by the previous judge.

Where the previous judge found that a person was, not to put too fine a point on it, a lying liar who lies, the later judge should treat any new purported evidence with scepticism. It does not mean that a later appeal is bound to fail. But the quality of evidence would need to be really rather strong to justify reaching a completely different conclusion to the first judge.

The Court of Appeal concluded that the later judge in this case had not followed that approach:

I therefore conclude that the FtT did not apply the Devaseelan guidance. At most it had regard to guideline 1, but not in a way that informed its analysis. In substance, its decision resembles a careful decision on a first appeal. Had it applied the guidance methodically, it is not possible to see how it could have reached its conclusion on the issue of KD’s political activities between 1994 and 2001. KD was making the same claim in 2023 on the basis of substantially the same evidence as that produced in 2004. The best witnesses on that topic were KD and his wife, both of whom had given evidence and were disbelieved for strong reasons. On a correct analysis, the evidence of AD and AHD added little, and the tribunal should not have treated the arrest warrant as reliable without considering whether there was a good reason why it had not been produced in 2004.

Neither the First-tier nor the Upper Tribunal emerge from this one covered in glory. Such is the nature of appeals. Hopefully a swift resolution can be reached with the rest of the human rights claim, which was remitted to the Upper Tribunal to address.