[2003] UKIAT 00072 U (Turkey)

IMMIGRATION APPEAL TRIBUNAL

Date heard:  8 September 2003 
Date notified.12.09.03
 Before:-.

DR H H  STOREY (Chair)
MRS M L ROE

                                                               Between

                                                                                                                      Appellant

                                                                  And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellant, a national of Turkey, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr A C B Markham David, dismissing the appeal against the decision by the respondent giving directions for removal following refusal to grant asylum. Mr D Saldanha of Counsel instructed by Howe & Co Solicitors represented the appellant. Ms K Evans appeared for the respondent. 

2. The Tribunal has decided to remit this appeal.

3. Albeit accepting that the appellant’s family had been seriously harassed over many years, the adjudicator did not accept that the appellant had been persecuted or that he would upon return be treated as a suspected separatist. 

4. The grounds of appeal contended that given the adjudicator`s acceptance that the appellant’s family had suffered and continued to suffer harassment from the authorities, he should have allowed the appeal. 

5. Given the evidence the adjudicator said he accepted, we would agree that is arguable he should have concluded that the appellant would be at risk simply on the basis of being a member of a family which continued to receive regular visits from the authorities looking for guns and evidence of involvement with the PKK. However, we do not consider that we are in a position to decide this case for ourselves on the basis of the adjudicator`s primary findings of fact. That is because he gave inadequate reasons for accepting the claimant’s account of his past experiences. The appellant in this case did not appear at the hearing. He had claimed through those he instructed that he could not get a train from Bristol to Cardiff until 2.30 p.m. having missed one at 6 a.m. Although the adjudicator did not believe this claim and so refused a request for an adjournment, he did not find that as a result the appellant had forfeited an opportunity to give oral evidence and have his account tested in cross-examination. In our view he should have made a finding on this issue because it was relevant to his assessment of the case as a whole and to the quality of the appellant’s evidence. Instead he stated:

“As the appellant did not give evidence before me, the principal means of assessing his evidence is by the level of consistency with the objective evidence. The appellant lives in Diyarbakir in south-east Turkey, which is a stronghold of the PKK, where the population are mainly Kurdish. There is ample evidence to support the pattern of harassment of the Kurdish described by the appellant”. 

6. We have no quarrel with the adjudicator treating the extent to which his account squared with the objective evidence as a relevant factor and as a very relevant one. However, we do not think that in this case the adjudicator was entitled to make a positive credibility finding on this basis alone. If it were right for an adjudicator to decide credibility on this basis alone, then appeals could succeed even when the account given by a claimant was full of serious discrepancies. 

7. The shortcomings of the adjudicator’s approach were compounded in this case by the fact that the Reasons for Refusal letter of 3 July 2002, whilst not specifying any inconsistencies in the appellant’s account, plainly did not accept the credibility of his claim. At paragraph 7 the respondent noted that despite the alleged harassment that he was subjected to since 1992, “you and your family remained in Diyabakir until you decided to leave in 2001. This delay in attempting to leave the area casts doubt on the sincerity of your claim to have feared persecution from the authorities in Turkey between 1992 and 2001.”  The adjudicator records little of the submissions that were put to him by the representatives at the hearing, but there is certainly nothing to indicate that the respondent had conceded credibility. Accordingly it was incumbent on him to explain why he did not find the respondent’s reasons for rejecting credibility persuasive.

8. In such circumstances we are simply not prepared to approach this appeal on the basis that we have adequate findings of fact before us. What this appeal requires, and still has not had, is a properly reasoned assessment of the appellant’s evidence. We would add the comment that lack of proper fact-finding by adjudicators in Turkish cases appears to us to be a significant problem. We entirely understand that adjudicators work under pressure and are subject to strict time-constraints. But given the frequent need for the courts and the Tribunal to modify their assessment of current risk factors in Turkish cases in the light of the latest objective country materials, it rarely helps for adjudicators to seek to resolve cases by assuming or too easily accepting certain facts as true so as to then examine the risk consequences for a particular appellant. Very often the issue of risk will turn crucially on whether the particular account given by the claimant is true.      

9. For the above reasons the appeal is allowed to the extent that it is remitted in accordance with Rule 22 of the Immigration and Asylum Appeals (Procedure) Rules 2003 to be heard by an adjudicator other than Mr A C B Markham David.

 DR H H STOREY  
VICE-PRESIDENT