THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION
APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Courts of Justice
London W2A 2LL
23rd June 1999
e f o r e
JUSTICE JONATHAN PARKER
OF STATE FOR THE HOME DEPARTMENT
of the handed down judgment
Bernal Reporting Limited
Fleet Street, London EC4A 2HD
0171 421 4040 Fax: 404 1424
Shorthand Writers to the Court)
ANDREW NICOL QC and MR MARK HENDERSON (instructed by Messrs Howe & Co,
London W5 2BS) appeared on behalf of the Appellant.
MARK BISHOP (instructed by The Treasury Solicitor) appeared on behalf of the
U D G M E N T
approved by the court)
case has a protracted and unfortunate litigation history. The appellant, who
is a Turkish Kurd, arrived in the United Kingdom on 6 October 1993. He
immediately applied for asylum. His claim was refused by the Secretary of
State for the Home Department by letter, dated 1. June 1994. He appealed. The
appeal was heard over two days by a Special Adjudicator, Mr Curzon-Lewis, on 20
September and 15 November 1995. His determination, dismissing the appeal, was
not promulgated until 15 August 1996. The Immigration Appeal Tribunal
(‘the Tribunal’) granted leave to appeal and allowed the appeal on
28 October 1996. They found that the inordinate delay between hearing the
evidence and the promulgation of the decision was in itself sufficient to
demand that the Special Adjudicator’s determination be set aside. The
appeal was remitted to be heard by another adjudicator.
appeal was heard by Special Adjudicator Mr Pullig on 1 May 1997. A
determination dismissing the appeal was promulgated in early July 1997. The
Tribunal refused leave to appeal. It is unnecessary to go into the details of
those decisions because on 9 February 1998 Moses J., on an application for
judicial review, quashed the Tribunal’s refusal of leave. The appeal was
heard on 24 August 1998 and the determination, dismissing the appeal,
promulgated on 18 September 1998. The Tribunal refused leave to appeal; but I
granted it on 28 January 1998.
effect of the Tribunal’s decision was that they accepted the
Appellant’s account of what had happened to him in Turkey, but they
concluded that if he were returned to Turkey he would not face persecution and
therefore he had no well-founded fear of it. It is a notable feature of the
Tribunal’s decision that, although they accepted the appellant as a
credible witness, nowhere do they set out his account of what had happened to
him. Indeed, when at CB p.13 they summarised the position as they saw it, they
He was arrested twice in 1993 but he was released without charge."
one considers what in fact happened to him during these two periods of
detention, as I shall shortly relate, this seems to me to be a masterpiece of
appellant was born in Gurun in Eastern Central Turkey in January 1956. He
became a non-violent sympathiser and PKK activist who campaigned for the
organisation by collecting funds, distributing publicity material and taking
part in meetings and rallies. While in the country he also took food to the
guerrillas in the mountains. In 1975 and 1976 he was arrested on a number of
occasions and subjected to falaka, beaten up and deprived of food and water by
the local gendarmerie. On one occasion in about 1975 he was subjected to a
particularly vicious attack when his back was sliced by a bayonet. Mr
Curzon-Lewis saw 35 vertical scars about 2” long on the appellant’s
back between his shoulders. These were the result of this attack.
about 1976 he moved to Istanbul as a result of the persecution, but appears to
have returned to Gurun from time to time. He worked as a painter and
decorator. In February 1993 a PKK placard appeared on the building site at
which he was working and the appellant was arrested as he was recorded as a PKK
sympathiser; he was detained in Gayrettepe police station, which is the
headquarters of the political police. He was detained for one week during
which time he was subjected to falaka, beatings and made to lie in iced water.
He was released without charge.
June 1993 the appellant was again arrested and detained for a week by the
political police. He was again subjected to the same ill-treatment as on the
previous occasions. Thereafter, three or four of the policemen then broke a
window on the third floor of the building, pushed the appellant through it
cutting him and causing him to bleed profusely. He was then hung upside down
outside the window; the police told him they were going to kill him and pass it
off as suicide. He lost consciousness but recovered later that day. Again,
after a week’s detention, he was released without charge. Following his
release he remained in hiding until arrangements, including bribing immigration
officials, could be made for him to leave the country. He made his claim for
asylum immediately on arrival in the United Kingdom.
Tribunal accepted the appellant’s account as true, though, as I have
said, they do not set out any part of this account which clearly in my view
amounts to persecution. The Tribunal commented that torture was widespread
and systematic in Turkey. In addition, the Tribunal had before them a report
by Mr Oberdiek and two reports of Amnesty International. The Tribunal then
proceeded to consider whether the appellant had a well-founded fear of
persecution if he was returned to Turkey. The decision has the merit of
brevity, and it is convenient to set it out in full so that the criticisms of
Mr Nicol QC, who appeared for the appellant, can be understood.
fear of return
question however which is required to be answered is whether his fear of return
is well-founded. The appellant is now in his forties and is a painter and
decorator who has lived for many years between 1978 and 1993 in Istanbul. He
clearly has friends in that city, and family in his home village.
have read Mr Oberdiek’s report (p278) very carefully indeed. From this
report we can assume that it is likely that when this appellant is returned to
Istanbul airport he will be subjected to an identity check in the General
Information Centre. It would seem that most returnees are released after 24 to
48 hours. A check is made with the political police and the army, but in this
case we do not think that there is a risk he would be handed over because the
appellant is not facing any outstanding charges at all and he has already
served in the army.
the police find neither any motive to justify a penal procedure, nor any
infraction of the obligation to present themselves for military service, these
people are released after one or two days (it is better if they can give an
address in Istanbul."
Oberdiek goes on to say that if there is any sign of hostile behaviour or of
belonging to the Kurdish people it is to be expected that the police will act
more brutally. We accept from what we have read in this and the other reports
that a person such as the appellant is likely to face insults, and quite
possibly worse. We believe however, on the appropriate test, that it is
reasonably likely that he will be released after one or two days and allowed to
return either to Istanbul or to his home village.
final issue which we must decide, therefore, is whether the risk of what we
describe above amounts to persecution within the context of the Geneva
Symes did not go as far as to state that all Alevi Kurds who are returned to
Turkey would face persecution, and we do not believe that the evidence goes
anywhere near such a proposition. The DIRB (p274) suggest that if a Kurdish
Alevi is not wanted by the police, or is not suspected of being involved in
anti-Government activities, he or she would only be subjected to routine
questioning by customs officials on return to Turkey. We have read Mr
Imset’s report and of course his report, together with the report from Mr
Oberdiek, go a little further. Nevertheless, they would not in our view go as
far either as to adopt a blanket protection for all Alevi Kurds.
have read all the documentary evidence in this case, and placed the appellant
into that background, on the following basis:
he was involved in very low level activity as a young man on behalf of the PKK;
he served in the army in the late 1970s;
he lived during the 1980s in Istanbul without any difficulty at all;
he was arrested twice in 1993 but that he was released without charge;
he has friends in Istanbul and family in his home village;
he is skilled as a painter and decorator.
we can give no guarantee of what may await him on his return, it is our opinion
that he would be interrogated by the police at the airport, and after a short
period, released. He may be insulted by the police; and he may be beaten by
them. Obviously we do not know.
we do consider that this amounts to persecution. The word must be given its
ordinary meaning (Kagema 1997 Imm AR 137). As in Ravichandran  Imm AR 97, (the possibility of ill-treatment when rounded up does not amount to
persecution), it is our opinion that the type of unacceptable behaviour which
could be adopted by the customs or the police at Istanbul airport when this
appellant is returned, does not in our view amount to persecution. And having
been allowed to go from the airport, it is our view that this appellant could
live in Istanbul without being persecuted and could return to his home village
without being persecuted."
behalf of the appellant Mr Nicol made the following submissions:
the Tribunal appear to have misunderstood the decision in
Ravichandran Imm AR 97 or alternatively their reference to this case is so obscure
that the Tribunal have failed to give proper reasons or explanation as to what
conclusion they drew from it (the
if the Tribunal had properly approached the questions of beatings which they
anticipated the appellant might be subjected to on his return to Turkey, they
should have held that this constituted persecution.
the Tribunal’s view that the appellant did not have a well-founded fear
of persecution was flawed because:
failed to have proper regard to the appellant’s experiences in Turkey
before he left the country, which amounted to torture and persecution.
Alternatively, they failed to explain why such experience should not have given
rise to a well-founded fear of persecution if he were returned.
Tribunal applied the wrong burden of proof.
Tribunal misunderstood the
point or failed to explain it adequately.
that case three Tamils had left the area of Sri Lanka controlled by the Tamil
Tigers and gone to live in Colombo. It was asserted that in Colombo they had a
well-founded fear of persecution because they were young male Tamils and were
therefore subject to security round-ups of such people which occurred when the
security forces were faced with Tamil terrorist activity in the city. When
rounded up they were subjected to ill-treatment which amounted to persecution.
The adjudicators and the Tribunal had rejected the proposition that young male
Tamils as a class and for that reason alone all had a well-founded fear of
persecution. The Tribunal had concluded that in Colombo ill-treatment of those
rounded up had significantly declined and was not endorsed by the government.
The Court of Appeal held that in cases of political asylum it was necessary to
look to the future and the appellate authorities were not restricted to the
facts at the date of the decision. Accordingly, the Tribunal were entitled to
take into account that there had been considerable improvement in the treatment
of young Tamils when rounded up in security checks. It is important to see how
the Tribunal expressed its view on this. What they said is set out at p104 of
conclusion is that those Tamils who are rounded up in security checks and
operations in and around Colombo are now not likely to be subject to such
ill-treatment as to give rise to a well-founded fear of persecution. The
excesses of the past have become too well known for the authorities to ignore
international pressures, and we find no evidence to suggest that there is other
than a strong likelihood that circumstances will continue to improve.”
court held that the Tribunal were entitled to come to the conclusion that such
ill-treatment as the appellants might be subjected to did not amount to
persecution. The second limb of the case concerned the question of whether the
mere rounding up of young Tamils and their detention of itself amounted to
Nicol submits that the somewhat cryptic reference to the
case suggests that the Tribunal thought that the result of that case was that
even if there was a real risk that the appellant would be subjected to
ill-treatment on his return to Turkey, that could not amount to persecution.
If they did so understand the case, then I agree with Mr Nicol they were in
was not the effect of
on the contrary everything depended on the degree of ill-treatment. As Simon
Brown LJ pointed out at p104:
Tribunal rightly recognised that, even if the detentions did not amount to
persecution, oppressive and violent treatment of those under investigation
could well do so.”
at p110 he said:
appellate authorities here have not regarded ill-treatment as “perfectly
legitimate” but rather as “excesses of the past” against
which there is now greater protection. In essence the appellate
authorities’ conclusion is that there is now no significant risk of such
ill-treatment in Colombo.”
reference to such ill-treatment must be a reference to ill-treatment that
amounts to persecution. This is a question of fact and since the Tribunal was
entitled to have regard to the lately improved position, they were entitled to
reach the conclusion that such ill-treatment as the appellants in that case
might expect, on arrest did not amount to persecution.
is unfortunate that the Tribunal in the present case expressed the effect of
so laconically. I suspect that the Tribunal intended to find that although the
appellant was at risk of some ill-treatment while in detention on his return to
Turkey, this would not be of such a serious nature as to amount to persecution.
If so, this would be a similar conclusion to that reached by the Tribunal in
But if that is so, then the Tribunal should in my view have expressed their
reasons more clearly. In the passage immediately before this, they had
concluded that during the period of detention on his arrival “he may be
insulted by the police; and he may be beaten by them. Obviously we do not
am left in doubt as to the degree and severity of such beating as the Tribunal
envisaged. If it was anything like that which he had previously experienced.
I find it difficult to see that it did not amount to persecution.
the Tribunal properly approach the question of beatings? Mr Nicol submits that
on a proper application of the Convention definition it was not open to the
Tribunal, in the light of its finding that the appellant may be beaten by the
police when detained on arrival, to find that this did not amount to
persecution. Mr Nicol relies on the analysis of Professor Hathaway, a
well-known authority in this field, whose work has been cited with approval not
but also in
 Imm AR 251 per Hutchison LJ at p272 and also by Lord Lloyd of Berwick in
 1 AC 293, 307. It is convenient to cite the passage quoted in Simon
Brown LJ’s judgment in
and his comment on it at p107:
sum, persecution is most appropriately defined as the sustained or systematic
failure of state protection in relation to one of the core entitlements which
has been recognised by the international community. The types of harm to be
protected against include the breach of any right within the first category, a
discriminatory or non-emergency abrogation of a right within the second
category, or a failure to implement a right within he third category which is
either discriminatory or not grounded in the absolute lack of resources.
“first category” there referred to those rights from which no
derogation can ever be permitted, even in terms of compelling national
emergency, rights such as freedom from the arbitrary deprivation of life, and
protection against torture or cruel, inhuman or degrading punishment or
treatment. Clearly it would include protection against ill-treatment of the
sort suffered by some Sri Lankan detainees in the past.”
second category referred to by Professor Hathaway includes arbitrary arrest and
I understand his submission Mr Nicol contends that any beating amounts to
cruel, inhuman or degrading punishment or treatment and is therefore
persecution. But this would tend to convert what is a question of fact into
what is a question of law. The correct approach is as Simon Brown LJ said at
my judgment, the issue is whether a person or group of people have a
“well-founded fear [i.e. a real risk - see
of being persecuted for [Convention] reasons” - and similarly the article
33(1) and rule 180B(c) issue whether such a person’s “freedom would
be threatened” for a Convention reason - raises a single composite
question. It is, as it seems to me, unhelpful and potentially misleading to
try to reach separate conclusions as to whether certain conduct amounts to
persecution, and as to what reasons underlie it. Rather the question whether
someone is at risk of persecution for a Convention reason should be looked at
in the round and all the relevant circumstances brought into account. I know
of no authority inconsistent with such an approach and, to my mind, it clearly
accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the
 Imm AR 137 CA. This court held that persecution was an ordinary word in
the English language and whether conduct amounts to persecution was a question
of fact. Aldous LJ at p140 said:
Ashford-Thom, who appeared for the Secretary of State, submitted that the word
“persecution” was an ordinary English word and it was for the
special adjudicator to decide whether the facts as found amounted to
persecution for a Convention reason. The fact that a court might, or would
have, come to a different conclusion did not mean that the special adjudicator
had erred in law. That only arose if this court concluded that the special
adjudicator’s conclusion was unreasonable, in the sense that it was a
decision that no reasonable adjudicator could come to.
I believe to be correct.”
 AC 854 in support of that proposition.
Hathaway’s analysis is helpful in showing that what conduct may amount to
persecution is a question of degree. At one end of the scale there may be
arbitrary deprivation of life, torture and cruel, inhuman and degrading
punishment or treatment. In such a case the conduct may be so extreme that one
instance is sufficient. But less serious conduct may not amount to persecution
unless it is persistent. Staughton LJ in
at p114 said:
must at least be persistent and serious ill-treatment without just cause by the
state, or from which the state can provide protection but chooses not to do
would I think be open to a Tribunal to find that a single beating, unless it
was particularly vicious or injurious, does not amount to persecution. But if
there is a real risk of repetition the position would be different. I do not
think therefore that the Tribunal’s finding, that the appellant may be
beaten on his return, entitles the appellant to claim that that of itself
amounts to persecution and the Tribunal must have misdirected themselves.
failure to have regard to previous persecution
Nicol submits that the treatment which the appellant received in the months
before he escaped from Turkey was life threatening and of a particularly
horrifying kind. This is very relevant to the question whether the appellant
has a well-founded fear of persecution on his return, yet the Tribunal do not
advert to this aspect of the case at all. In MacDonald’s Immigration Law
and Practice, 4th edition, at paragraph 12.18, the editors state:
persecution substantially supports the well-foundedness of the fear in the
absence of a significant change of circumstances.”
his book ‘The Law of Refugee Status’, at p88, Professor Hathaway
evidence of past maltreatment exists, however, it is unquestionably an
excellent indicator of the fate that may await an applicant upon return to her
home. Unless there has been a major change of circumstances within that
country that makes prospective persecution unlikely, past experience under a
particular regime should be considered probative of future risk...
sum, evidence of individualised past persecution is generally a sufficient,
though not a mandatory, means of establishing prospective risk.”
the House of Lords in
case held that historic fear was not sufficient and an applicant for asylum had
to show a current well-founded fear, Lord Lloyd of Berwick said at p308C said:
is not to say that historic fear may not be relevant. It may well provide
evidence to establish present fear.”
seems to me no more than common sense. Because the Tribunal do not refer in
terms to his experiences before leaving Turkey, it is difficult to know how
they would deal with the matter. There does not appear to be any evidence of a
significant change in Turkey. Indeed the Amnesty reports and Mr
Oberdiek’s report suggest the contrary in the case of persons suspected
rightly or wrongly of having links with the PKK or with a history of detention
in recent years (Core Bundle p93).
my judgment, if it is the opinion of the Tribunal that there has been such a
significant change that the appellant is no longer at risk, it is incumbent
upon them to explain why this is so. In the absence of such explanation and
reasoning, it seems to me there may be a real risk that someone who, because of
his suspected association with the PKK, was subjected to such appalling
treatment before he fled the country, will suffer more than transient
ill-treatment on arrival at the airport and in the day or so thereafter that he
is detained. Accordingly, I have come to the conclusion that the
Tribunal’s conclusion cannot be sustained.
being so, it is unnecessary for me to deal with Mr Nicol’s further
submissions save very briefly.
Tribunal dealt with the question of the burden of proof in three places. In
the second paragraph of the passage quoted the Tribunal state:
do not think that there is a risk that he would be handed over because the
appellant is not facing outstanding charges at all and he has already served in
objection can be taken to that passage. But at the end of the next full
paragraph they say:
believe, however, on the appropriate test, that it is reasonably likely that he
will be released after one or two days and allowed to return either to Istanbul
or to his home village.”
the face of it that is an incorrect statement of the burden of proof. The
proper question is whether, applying the lower standard of proof appropriate in
asylum cases, there is a
risk that he will not
be released. On the other hand, in the last two paragraphs of their decision
the Tribunal appear to put the burden of proof correctly.
is an unsatisfactory feature of the decision. But had this point stood alone
and the decision was otherwise sustainable, I would be inclined to the view
that overall the Tribunal correctly applied the burden of proof. As it is it
adds to my concern that the decision cannot be upheld.
Nicol submitted that the
point further assisted him on the main submission. I have dealt with the
submission earlier. Once again the lack of reasoning and explanation as to
what the Tribunal really had in mind supports my conclusion that the decision
would therefore allow the appeal. We will hear argument as to the relief which
ought to be granted.
JUSTICE LAWS: I agree.
JUSTICE JONATHAN PARKER: I also agree.
Appeal allowed with costs; assessment of costs.