England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		29 October 2004

Friday, 29 October 2004

1. LORD JUSTICE BUXTON: Lord Justice Sedley will give the first judgment.
2. LORD JUSTICE SEDLEY: The appellant is an Alevi Kurd of Turkish nationality. He travelled to this country by lorry, entered illegally on 14 July 2002 and claimed asylum immediately. His claim to protection was rejected by the Home Office. His appeal to an adjudicator, Mr DR Garratt, was dismissed on 20 December 2002. Leave to appeal was granted, but the IAT dismissed the appeal and refused permission to appeal to this court. Dyson LJ on sight of the papers granted permission to appeal.

The appellant's case

3. The appellant comes from a large and apparently prosperous farming family in Kayseri province, almost 40 of whose members have now sought and obtained asylum or leave to remain in this and other EU countries. His case was that on each of the four occasions when the army had arrested him he had been beaten and treated with methodical cruelty, including hanging by the feet or arms, electric shocks and beating with truncheons, before being turned loose. The reason for the first arrest, in November 1998, was that he had visited a cousin who was in prison for PKK activities. The reason for the last arrest, in March 2000, was that he was distributing leaflets for a Kurdish party, HADEP, which was then legal but which has since been banned. Of the other two arrests, one had been in the course of a sweep, but the other had been directed at him.
4. The appellant then recounted that he had gone in March 2000 to live with his uncle in Ankara with false identity documents, preferring to try to remain in Turkey. But in June 2002 the uncle's home was raided. The appellant was not there, but his uncle told him that the authorities were looking for him, and the appellant fled to the United Kingdom.
5. The appellant had the misfortune to be disbelieved in significant measure by the adjudicator. For reasons which he set out, and which - though at first sight perhaps exiguous - are not under attack in this appeal, the adjudicator considered that the extent of the appellant's ill-treatment by the army had been much exaggerated. He also - and this will be relevant to the appeal - disbelieved the appellant's account of having had to live under an assumed identity in Ankara. He wrote:

"In relation to his flight to Ankara where he lived with an uncle, the appellant has, in my view, sought to add inaccurate detail in an attempt to show that he could only live there under a false identity. I do not find it clear, from his evidence, whether a false identity document was provided for his journey to Ankara or whether it was given to him there. He has not explained how the identity document was obtained. Further, if it was his intention to seek asylum, I find it surprising that he did not bring the false document with him to substantiate his claim. Rather, I believe that the appellant was able to relocate to Ankara to avoid the harassment he had received from the authorities in the Kurdish region in which he was living. The appellant's account of the absence of harassment suffered by his uncle in Ankara supports the view that the appellant was able to lead a life free from harassment for almost two years before his departure for the United Kingdom. That was not, I find, on account of any false identity adopted by the appellant."

6. What may matter more than the - again not entirely convincing - reasons given by the adjudicator is the fact that on the appellant's own account the authorities had managed to trace him to his uncle's home in Ankara.

The appellate decisions

7. The adjudicator dismissed both the asylum and the human rights appeal on the ground that, although the appellant would, even on his diminished findings, be at risk of persecution in his home province, his two years of relative safety in Ankara showed that he could relocate there.
8. The single member, Mr Fox, gave leave to appeal, in particular on the question of risk to the appellant on return. The appeal was argued with a focus on the risk that the appellant, if returned, would be identified as a suspect at the airport and at real risk of torture or ill-treatment. If so, the possibility of relocation in Ankara was not an issue.
9. This was a question which the adjudicator had answered in the following way:

"In relation to the situation for returned asylum-seekers, the appellant believes that he will be identified as a wanted person. The CIPU Report deals with the treatment of returned asylum-seekers from paragraph 6.87 onwards. It is evident that those who have criminal records may face difficulties. The appellant has not been involved in criminal activity and was released without charge on each occasion that he was arrested. There are no outstanding proceedings against him. He will not, I find, be under suspicion when he is returned, and so he will not be at risk of persecution."

10. The Immigration Appeal Tribunal (Mr HJE Latter and Mrs W Jordan) upheld this view. Mr Latter, on behalf of the Tribunal, wrote:

"19. It is argued that if the appellant is at risk in his home area, it must follow that he is at risk of detention and ill-treatment on return at the airport and if he is at risk from the authorities he can not reasonably be accepted to relocate in Ankara. In Suleyman Okur the point made by the President was that internal flight was not an option as the applicant in that appeal would be interrogated on return to Istanbul. This leads to the issue of whether this appellant in the light of his background and general profile would be at risk of detention on return at the airport.

20. The Adjudicator was not satisfied that he would be under suspicion when he was returned: see paragraph 36 of his determination. In our judgment in the light of the Adjudicator's assessment of the appellant's detentions and the relevance of his family's political activities, this finding was properly open to him. The treatment of returnees is considered in paragraph 6.89-108 of the CIPU report (April 2003). It is said in paragraph 6.93 that anyone suspected of having committed criminal offences is transferred to the relevant investigative authority. Anyone suspected of membership of the PKK, left wing radical organisations such as the DHKP/C or TKP/ML, militant Islamic groups or anyone suspected of giving support or shelter to one of those organisations is handed over to the anti-terrorist branch for further investigation.

21. In our judgment it follows from the Adjudicator's findings that there is no real risk of the appellant being suspected of membership nor of giving support or shelter to any such group. Even if his detentions are recorded, the last one was in 2000 and any enquiries would reveal that he had lived in Ankara. The Adjudicator's assessment of the risk on return at the airport was properly open to him and his conclusions are sustainable on the evidence."

11. There is a second issue on which Dyson LJ also granted permission to appeal. In the course of his findings and conclusions, the adjudicator, having summarised the appellant's evidence about his successive detentions, wrote:

"31. I find it improbable that the authorities would wish to detain and severely ill-treat the appellant when, after the first arrest they discovered he had no information of value to give them or, I imply, he had any connection with the PKK."

12. It is submitted that the adjudicator was applying too high a standard of proof, in effect requiring probability, where in law (see Sivakumaran [1988] IMM AR 147) a real possibility is enough to afford proof.

The standard of proof

13. Although it has not proved necessary to hear argument on it, my present view on the matter is this. The low standard of proof in asylum cases relates to the establishment of risk. It does not set a threshold above which all evidence is to be treated as fact. As this court has more than once said (see Karanakaran [2000] 3 ALL ER 449), in arriving at a determination each element of the evidence has to be given as much or as little weight as the decision-maker judges right. That is what the adjudicator seems to me to be doing here. He goes on, for example, in the next sentence to make another finding of fact to a different standard:

"It is also my view that the appellant could not have suffered the acts of torture he has described without suffering serious physical and mental problems which required hospital treatment."

It was when he came to decide whether there was a well-founded fear of persecution that, as it seems to me at present, the adjudicator had to - and did - apply the Sivakumaran standard of proof. He found that there was a risk of state persecution in the appellant's home province but effectively none in Ankara.

Mr Mc Dowall's evidence

14. Turning then to the principal ground of appeal, counsel for the appellant, Mr Collins, was initially seeking to support it by a report written by a specialist in Middle Eastern affairs with a special interest in the Kurds. This report, dated 1 March 2004, was neither before the adjudicator nor before the IAT. It was first introduced in support of the application to the IAT for permission to appeal to this court. Following refusal by the IAT, no application was made in the appellant's notice or subsequently for permission to adduce it. Instead, it was simply included in the bundle and adopted in counsel's grounds and skeleton argument.
15. For my part I would not have been prepared in these circumstances to treat Mr Mc Dowall's report as evidence or therefore to have indirect regard to it by way of counsel's submissions. Apart from anything else, there was no agreement about its content; and no good reason has been advanced for its not having been available to either of the tribunals below.

Reliance on other cases

16. A substantial part of the written case for the appellant in this court consists of other IAT cases where asylum has been granted in similar fact situations. Counsel for the Home Secretary, Miss Giovannetti, points out that if such an exercise were permissible she too could no doubt produce cases with similar facts which had gone the other way. She submits that the entire exercise is inadmissible.
17. In the event, however, it is the objective evidence placed before the tribunals below to which it has proved relevant to have regard on the critical issue in the present appeal. We have not needed to consider whether, and to what extent, any of the cases marshalled by Mr Collins constitutes what Laws LJ in S v Home Secretary [2002] INLR 416 called "a factual precedent".

The appeal question

18. The case for the applicant is now put upon a single facet of risk: the risk that, if he is returned, on interrogation at Ankara Airport he will be identified as a suspect and ill-treated or tortured in consequence. It may well be that only the first half of this is contentious: the evidence, depressingly, seems fairly consistent that persons who are so identified are routinely maltreated by the security services. The question is whether, on the material before the tribunals below, the appellant faced risk of such identification were he to be returned; and, if so, whether the findings to the contrary are sustainable.
19. It is submitted in the light of this that it is irrational to conclude that internal relocation is a realistic possibility. Without resorting to the language of irrationality, I would accept that this must be right if there is a real risk of being detained and maltreated on arrival, because the appellant will on this view face persecution and inhuman treatment without ever reaching safety in Ankara. Collins J adopted this logic in Okur (IAT, 26 February 2000), and I would respectfully do so too.
20. So the single question is the one first posed above: did the adjudicator and IAT err in dismissing as insignificant any risk of detention and consequent ill-treatment at the airport on return?

The situation of returned Kurdish asylum-seekers in Turkey

21. It is perhaps surprising that what happens at official level in a democratic state which is a Member of the Council of Europe, a signatory of the European Convention on Human Rights with a judge on the Court, a member of NATO and a candidate for membership of the European Union should be as shrouded in obscurity and controversy as this question is.
22. What information there is comes principally from the Home Office's Country Information and Policy Unit. Its April 2003 report will have been available to the IAT. Its November 2002 report will have been available to the adjudicator. The main sources are, it appears, information supplied directly by the Turkish authorities, data assembled on a CIPU visit to Turkey in 2001, and material reaching and passed on by human rights and other organisations.
23. The relevant passages in the April 2003 report includes these, in relation to the party known as HADEP:

"Halkin Demokrasi Partisi (HADEP (People's Democracy Party)... Founded 1994. Pro-Kurdish nationalist party. ... On 20 September 2002 Mr Bozlak [the Chairman of the party] was barred from running in the November 2002 general election because of his conviction in the past for sedition. In March 2003 HADEP was banned by the Constitutional Court on the grounds that it aided and abetted the PKK."

In the body of the same CIPU report we find at paragraph 6.92 and 6.93 the following:

"6.92. If a person is found to have a criminal record or incorrect border-crossing documents, to have left Turkey illegally in the past or been expelled from another country, the Turkish border authorities often interrogate the person concerned. Questioning is often intended to establish or check personal particulars, reasons for and time of departure from Turkey, grounds for seeking asylum, reasons why the application was rejected, any criminal records at home and abroad, including (drug-related) offences, and possible contacts with illegal organisations abroad. If, however, there is no definite suspicion, as a rule the person is released after an average six to nine hours' detention.

6.93. Anyone suspected of having committed criminal offences is transferred to the relevant investigative authority. In Istanbul this is generally the Police Headquarters, which is located in Bakirköy, not far from the airport. Persons suspected of membership of the PKK, left-wing radical organisations such as the DHKP/C or TKP/ML, militant Islamic groups, or anyone suspected of giving support or shelter to one of those organisations is handed over to the Anti-Terror Branch, which is housed in the Police HQ mentioned above. Torture or ill-treatment of suspects at the Police Anti-Terror Branch cannot be ruled out."

Reference may also be made to paragraphs 6.98 and 6.99 in this connection.

24. The 2002 CIPU report is in identical terms, in the material parts, to paragraphs 6.92 and 6.93 of the 2003 report. It was in 2003, as we have seen, that the banning of HADEP was upheld by the Constitutional Court; and it is noteworthy that the ground appears to have been that it aided and abetted PKK, because one notes that assistance to the PKK is one of the grounds for detention of returnees.
25. In both reports, the remark that torture at the hands of the police anti-terror branch "cannot be ruled out" has probably to be regarded as euphemistic in the light, for example, of the US State Department report for 2003, which is cited by the IAT in A (Turkey) (28 July 2003):

"Torture, beatings and other abuses by security forces remained widespread, although the number of reported cases declined. There were reports that police and Jandarma often employed torture and abused detainees during incommunicado detention and interrogation."

26. How, if at all, is this and similar information addressed in the IAT's decision? The adjudicator (in paragraph 31) for reasons which are understandable, had taken HADEP to be "the legitimate political party supporting Kurdish interests". Although by the date of the IAT decision HADEP had been banned, the IAT (in paragraph 14 of its decision) still took the view that the appellant's links with it would not put him at any additional risk. Such a counter-intuitive finding, while not an impossible one, requires reasons, especially in the light of the fact that the adjudicator in paragraph 30 had expressed himself satisfied that the reason for the appellant's repeated detentions and interrogations had been that he was suspected of involvement with the PKK. However the IAT gives no reasons for this crucial conclusion.
27. Miss Giovannetti nevertheless submits to us today that the in-country evidence shows that the harassment of HADEP supporters was confined in place to the south-east of the country and in time to a period which is now over. She may or may not be right, but it does not answer the real concerns raised by the CIPU and State Department Reports about what may happen now when a returned Kurdish asylum-seeker is questioned at the airport by the security police. Will his previous detentions, especially but not only if they were authorised under a state of emergency, be on record? Does the raid on his uncle's home in Ankara give a clue? Will the grounds of suspicion - visiting a PKK prisoner; distributing HADEP leaflets - be on record? If so, will the HADEP association count against him in the light of the party's having been banned because of links with the PKK? May the adjudicator's or the IAT's written decision on the appellant's case have come into the hands of the Turkish authorities? In the last connection, one notes the Practice Direction (CA3 of 2003) creating a change in the practice of recording and filing decisions for reference purposes. We do not know, and it may be that the decision-making body should know, what will have been the public accessibility of either of the decisions in this appellant's case to anybody seeking such information from outside the Immigration Appellate Authority.
28. As Miss Giovannetti eventually all but conceded, these questions, and others which also may legitimately be raised, have not been addressed by the IAT. In my judgment the appeal should be allowed and the case be remitted to a differently constituted IAT for this to be done. Since arrangements may well have to be made for the assembly of evidence and for oral submissions, I would also order that the case should go first before the President of the IAT for directions.
29. SIR MARTIN NOURSE: I agree, and cannot usefully add anything of my own.
30. LORD JUSTICE BUXTON: I also agree with everything that has fallen from my Lord, including what he has said both on the issue of standard of proof and on the issue of Mr McDowall's evidence. I would also venture respectfully to underline what my Lord has said as to the difficulties apparent in this case and affecting, as it would seem, everybody in this field in determining what is the practice and attitude of the authorities in the Republic of Turkey.
31. As my Lord has pointed out, there appears to be no single source from which that can be extracted. I would hope that Her Majesty's Government will give serious consideration to raising this difficulty at a high level with the authorities of the Republic of Turkey: to point out that it is in no one's interest, whether it is the interests of the courts in this country, whether it is the interests of the citizens of that Republic who find themselves in this country, or the interests of the Republic itself for courts in this country to be in the difficulties encountered here in determining what the situation will be should persons be returned to Turkey.
32. Subject to that observation, I respectfully agree that the appeal should be allowed in the terms indicated by my Lord. I would further agree that the matter should be referred, and the parties will be under an obligation to refer it, to the President of the Tribunal, both for directions as to the future management of the appeal, and also because he may well wish to consider how the hearing of this appeal should relate to the hearing of other, as we understand, quite considerable number of cases relating to Turkey with which the appellate authorities are currently burdened.

(Appeal allowed; case remitted to a differently constituted IAT; Respondent to pay Appellant's costs, such costs to be the subject of detailed assessment).