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 THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		12th April 2005

Tuesday, 12th April 2005

1. LORD JUSTICE CARNWATH: This is an application for permission to appeal against the decision of the IAT in relation to the applicant. He is a citizen of Turkey. He came to this country on 30th January 2002 and claimed asylum. That was refused by the Secretary of State. The refusal was upheld by the adjudicator in December 2002.
2. The adjudicator set out the background of the case. The claim was based on the experiences of the applicant who had been detained by the Turkish military, on the first occasion, when they "invaded" his village in January 2000, as a result of which he was held and tortured over a period of 5 days.
3. There was a second detention in December 2001. In relation to that the adjudicator recorded his evidence as being that he was taken into the countryside and a gun was put to his head and he was told he either supported the Turkish authorities or he supported the terrorists. He was very frightened and agreed to collaborate with the authorities. He was then taken to the police station, interviewed in front of a video and confirmed on camera that he would cooperate with the Turkish authorities. His identity card was taken and he was told that if he did not cooperate the video cassette would be sent to the local television station and it would be promulgated that he was a traitor to the Kurdish society. His case was that at that point he realised he could not safely stay in Turkey. He left the village and went into hiding with his uncle in another town. He subsequently left Turkey.
4. More recently he had been in touch with his family who were still in Turkey, and indeed had spoken to them the weekend before the adjudicator's hearing. The appellant's evidence was that they had been visited on several occasions by the security forces asking for his whereabouts and stating that he was guilty of assisting and helping terrorists.
5. The adjudicator accepted that the applicant was a genuinely credible witness and that his evidence fitted well into the background country information. His conclusions, however, were adverse to the applicant. He relied particularly on the then current IAT guidance on such cases, in a case called Polat. He referred to the factors set out in that case as matters likely to be relevant in deciding whether the applicant would face a real risk of persecution.
6. The adjudicator concluded that this applicant had no real involvement in the PKK and could only be regarded as a passive supporter, that the detentions had occurred some time ago, and that there was no indication that he was actually wanted currently by the Turkish authorities. He also took account of the fact that there had been a ceasefire and the PKK had reduced its activities. On that basis he dismissed the asylum came and also dismissed the Human Rights Convention claim.
7. There was an application to appeal to the IAT. That was refused in December 2002 on the grounds that the decision turned largely on questions of fact on which the adjudicator had considered all the relevant matters. One of the grounds raised in the appeal had been that the adjudicator had erred in saying that there was no indication that the applicant was currently wanted by the authorities, since this failed to take account of his evidence of the recent visits to his family. That does not seem to have been addressed specifically by the IAT in refusing permission to appeal.
8. The next event was a consent order in the High Court in November 2003 in which the IAT's refusal of permission to appeal was quashed by consent. Unfortunately the precise basis of that decision is not as clear as it might be. One important factor appears to have been that in July 2003 the decision in A was promulgated by the IAT, which gave new guidance on cases of this kind which superseded the guidance in Polat.
9. There is a written statement of reasons for the consent order, which I assume would have been agreed by both the applicant and the Secretary of State. That refers to the grounds of appeal which asserted that the claimant had a profile which created a real risk of persecution upon return to Turkey. It goes on:

"In the light of the recent determination by the Tribunal in the test case of A v Secretary of State for the Home Department [2003] UKIAT 00034 it is arguable that the Tribunal erred in refusing leave to appeal. It is therefore expedient that the decision refusing leave to appeal be quashed and the matter be remitted back to the Tribunal to reconsider the application for leave. The President of the Tribunal has been consulted and has no objection to this course."

10. I find that a little difficult to understand since at the time of the IAT's decision to refuse leave to appeal in January 2003 the decision in A had not been promulgated. Furthermore, it is not clear from the consent order what precise factor it was which it was thought would be affected by the new guidance. However that may be, the decision was quashed and the matter did go back to the IAT. It appears that permission was granted to appeal to the IAT by the Deputy President on 25th May 2004, although again we do not seem to have the actual decision or the grounds on which it was made.
11. That is the background to the decision of the IAT which is the subject of the application to appeal in the present case. That decision was dated 22nd September 2004. In substance the tribunal upheld the adjudicator's reasons. Although the case had been specifically sent back to the IAT on the basis that the decision in A was to be taken into account, the IAT appears to have taken the view that A was not relevant. At paragraph 3 they said:

"Our approach to this appeal was to decide whether the Adjudicator made an error of law or, in view of the age of the determination, fact. Only if he did, is the Tribunal entitled to interfere with his findings even though the current situation, both in terms of objective evidence and jurisprudence has changed. The basis for that approach is to be found in Subesh [2004] EWCA Civ 56 at paragraph 43 which followed an earlier decision in Indrakumar [2003] EWCA Civ 1677. The only basis upon which the Tribunal is likely to interfere if there is an error of fact is if the determination is plainly wrong or perverse."

12. It appears that on the basis of those decisions the tribunal took the view that they had to consider the adjudicator's decision in the light of the guidance which applied at that time and that they were precluded from taking into account the more up-to-date guidance in A. That is made even clearer at paragraph 15 when they say:

"... in the light of Subesh, the consideration of A is not relevant because the first task of this Tribunal is to consider whether the Adjudicator made an error of law or fact in his assessment of the situation at the time of his determination. If the situation has deteriorated, this does not leave the appellant without protection because there would be no reason why he could not make a fresh application to the respondent for asylum. The error by the Vice President referred to in paragraph 2 of the Statement of Reasons refers to the claimant having a history of two arrests in connection with political activities and that he was asked to become an informer on the occasion of his last arrest. It was suggested that he has a profile that will create a real risk of persecution on return. The evidence must be looked at in the context of Polat."

13. They then set out the Polat factors to which I have referred and continued at paragraph 17:

"The Adjudicator considered all these issues. The appellant is clearly not a member of a separatist organisation and has never seriously been suspected of it. He may have been accused during the course of interrogation but that is not to say that there was a genuine belief in the basis for such an assertion. The Polat factors do not include the question of an appellant having been asked to become an informer. The Adjudicator did not find the appellant had a history of arrest connected to political activity. On both occasions he was arrested in a round-up. The Adjudicator's finding that the appellant would not be at risk on return is therefore sustainable."

14. They then went on to deal with the other finding that the adjudicator had made that the applicant would not be at risk in Istanbul. They noted that the adjudicator had not found in terms that it would not be unduly harsh to expect the appellant to relocate to Istanbul, but they said that no point had been taken about that. There was no evidence to support the assertion that it would be unduly harsh.
15. The applicant sought leave to appeal to this court. Sedley LJ dealt with that matter on the papers and he refused permission. There were two grounds made in the skeleton argument put before him: first, that the tribunal had acted irrationally in failing to apply the A guidelines when that was the specific matter that was being referred to them, and, secondly, because the adjudicator should have found that internal relocation was not a viable option, having regard in particular to the analysis made by Collins J in the decision of the tribunal in Okur, which was the lead decision at the time of the adjudicator's hearing.
16. Sedley LJ, in refusing permission, said, in relation to the relocation issue, that while the conclusion on that point appeared to be open to attack as being wholly unreasoned, it did not appear that that had been the way the matter had been put before the IAT. (As I have noted, the IAT specifically said that no point had been taken on whether relocation was viable.) On the other point he accepted that the decision of the IAT may be open to criticism for having to sought to apply the law as it stood at the date of the adjudicator's decision, but he could not see that any material part of their conclusion depended on this point.
17. In the light of the skeleton argument as it was put before Sedley LJ, I can understand that view. However, before us, on the rationality point, Mr Collins has pointed specifically to one aspect of the decision which was central to the applicant's case, which was materially affected by the refusal to consider the guidelines in A. That concerned the position of an informer. As has been seen, the IAT commented in terms that the Polat factors did not include the question of the appellant having been asked to become an informer. I understand that to be saying that it was not a factor which should be taken into account of supporting his case.
18. Whether or not that was a proper approach, even under the guidance in Polat, it is certainly not the correct approach under the guidance in A, because in one of the particular factors set out in paragraph 46 as being material to the question of whether there is potential suspicion in the minds of authorities, is whether the appellant became an informer or was asked to become one.
19. Like Sedley LJ, I think it was certainly at least realistically arguable that the tribunal were wrong to confine themselves to the guidance in Polat merely because that was the guidance in force at the time of the decision. But I go further than Sedley LJ because it seems to me that had they not regarded themselves as so constrained, they would have needed to consider the important issues raised by the evidence of the applicant being coerced to become an informer.
20. It is not necessary, for the purpose of granting permission, to consider precisely how the tribunal should deal with a case where the relevant country guidance has changed between the adjudicator's decision and the hearing of the appeal before them. This is a problem which, insofar as it exists, applies only to cases where there was a right of appeal on both fact and law and therefore is largely of historic significance, although there are no doubt a number of such cases still in the pipeline.
21. However, I should make one comment. The decision in Subesh, which was a decision of the Court of Appeal given in March 2004, was concerned with the more general issue of how the IAT should approach appeals on questions of fact, and in particular what test should be applied in deciding whether to interfere with the decision on fact.
22. That followed, and indeed largely supported, the approach taken in a previous decision, to which I was party, called Indrakumar. In Indrakumar, Hale LJ, who gave the leading judgment, identified different types of appeals on fact; one of which was where the issues depended on general conditions in the country concerned.
23. In Subesh, at paragraph 46, Laws LJ gave, as one example of a case where the IAT would be justified in interfering with an adjudicator's decision on an appeal on fact, a case where the adjudicator has departed, without justification, from an earlier IAT ruling intended to be authoritative as to the situation for the time being in the country in question.
24. It may be that the tribunal in this case attached more weight than I think was intended to the reference to "an earlier IAT ruling." Laws LJ in Subesh was not dealing with a case where the country guidance had changed between the date of the adjudicator's hearing and the date of the IAT hearing. That paragraph was certainly not, as I read it, intended to exclude consideration by the IAT of more recent country guidance, at least where the new guidance provided a different perspective on primary facts found by the adjudicator.
25. Those are matters which can be gone into on the appeal, as I am satisfied that it is right to grant permission to appeal. It seems to me arguable that the tribunal wrongly regarded itself as constrained in their approach to the factual assessment, and that led them to disregard a material factor. That, in my view, is sufficient to justify granting permission to appeal.
26. Like Sedley LJ, I am also troubled by the approach of the adjudicator and the IAT to the relocation issue. Had that been the only point in the case I might have taken the view that it had not been properly highlighted by the applicant before the IAT and that he should not be allowed to reopen it now. However, if permission is to be granted, as I think it should be, then I would not rule out that issue. I think the whole case should be looked at together. I would therefore grant permission to appeal.
27. LORD JUSTICE JONATHAN PARKER: I agree.

ORDER: application granted; time estimate 4 hours; constitution of 3 judges, one may be a high court judge.