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 ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. AS/11744/2004]

		Royal Courts of Justice Strand London, WC2
		13th July 2006

1. LORD JUSTICE HOOPER: This is an appeal from a decision of an immigration judge of the Asylum and Immigration Tribunal, who in a determination promulgated on 28 November 2005 dismissed the appellant's asylum and human rights appeal. The immigration judge's determination followed a reconsideration hearing pursuant to section 103A of the Nationality Immigration and Asylum Act 2002, an earlier decision favourable to the appellant having been successfully appealed by the Secretary of State. Thus the only appeal lies to this court.
2. Permission was granted by Brooke LJ at an oral hearing on 9 May 2006, only on ground 2 of the appellant's grounds of appeal. Ground 2 relates to the immigration judge's inferential conclusion, in paragraph 28, that there would be no real risk of persecution for a Convention reason upon the appellant's return to his home area in Turkey. In the preceding paragraph he had said:

"I accordingly believe that he would be allowed to enter Turkey without any real difficulty."

That is not a subject matter of challenge in this appeal, and it is worth noting that the immigration judge also said this:

"I do not believe that he would be handed over to the anti-terrorist unit of the police, since he would not, in my view, be regarded as a PKK suspect."

3. The appellant is of Kurdish origin. His asylum claim is based on his membership of HADEP, then of its successor DEHAP; the involvement of various members of his family in such parties; his aunt's involvement with the PKK; and the history of his detentions over a period from about 1990 until 2004.
4. As to HADEP, we were referred to paragraphs 6.243 and 244 of the Turkish Country report dated April 2005:

"6.243 The Netherlands Ministry of Foreign Affairs 2002 reported that: 'The pro-Kurdish HADEP [People's Democracy Party], was established in 1974 as a successor to the successively banned HEP, DEP and OZDEP … HADEP campaigns for greater cultural rights for Kurds and a peaceful solution to the Kurdish issue. It has kept to that position by never resorting to violence."

5. According to paragraph 6.244, and as reported by the BBC, Turkey's constitutional court in 2003 banned HADEP for alleged links with rebel groups. HADEP did not stand in the 2002 elections, but its candidates stood under the umbrella of the Democratic People's Party, DEHAP. Neither of the two parties describe themselves as Kurdish parties, but both say they defend the rights of people living in the southeastern, Kurdish-populated part of Turkey.
6. We were referred also to a passage at page 103 of the bundle, at paragraph 6.254, where it is said that the Netherlands Ministry of Foreign Affairs reported that relatives of HADEP members need not fear persecution by the Turkish authorities solely because one or more of their relatives is a member of HADEP. However, it goes on to say that such persecution cannot be ruled out.
7. In interview the appellant gave an account of his detentions. There is some confusion about the dates, but any such confusion is not material to the case. I summarise it in the following way. In 1990 he was caught speaking Kurdish to a friend from a political party. He was detained in the afternoon, and released the following morning without charge. In 1992 he was arrested during a "normal ID search". He was held for two days and two nights at a local police station and was then released without charge. As he was arrested in an area where the PKK were active, he was asked whether he had seen them and whether he knew about their activities. In 1992/1993 he returned to his home area, which had been cleared by the authorities after skirmishes with the PKK. He was detained for seven days. He was however released without charge.
8. According to his interview, the family had two houses, one of which was burned down and one of which was knocked down. In the case of one of the houses it was the only house in the village to be knocked down, whereas in the case of the other house, all the houses were cleared. In 1993, the appellant was arrested during an ID search, held for two days, and released without charge. The appellant believed he had been held because his birth certificate indicated he had come from another area. In 1999 he participated, as did many other people, in a hunger strike following the extradition of Abdullah Ocalan, the PKK leader. He was detained by police for "one night, not even that". In 2001 he was arrested because he was avoiding military service, but was released without charge. He subsequently carried out his service.
9. He explained that from time to time he had been ill treated whilst he was living in Turkey. We looked in detail this morning, with counsel for the respondent, at the questions and answers which the appellant gave in interview about these arrests and detentions. It was noted on behalf of the respondent that the appellant's arrests and detentions showed no targeting of him as a person of interest to the authorities. Counsel for the appellant submitted that one of two of these incidents did show some targeting of the family, and she referred particularly to the issue of what happened to the family homes and what had happened when the appellant was on hunger strike. We also looked at the answers which the appellant gave relating to his family. The grandfather was an official of HADEP and the appellant's sister a member.
10. At page 134 of the bundle, he was asked "Did the police arrest any of your family?", to which he said, "Many times". He was then asked this question: "Were they charged with any offences?" His reply was: "My grandfather and my sister were charged and sent to court, and although I am not sure I think these cases still continue". The next question was: "What were they charged with?" Answer: "I believe my grandfather was arrested because they found a cassette at the branch when they closed HADEP and since he was the branch leader he was arrested. They couldn't prove anything against him, so he was released". Asked, "What about your sister?", he said, "Similar things, taking part in a demonstration". Asked whether she had been charged with an offence, he said, "No, I don't believe so". There was also an aunt in prison who, according to the appellant, was there because she was a PKK guerrilla. The appellant gave no further information about her, but did produce a letter which he said she had written to him from prison.
11. The immigration judge summarised the appellant's claim in the following way:

"10. The Appellant claims that he would face mistreatment due to his race, political opinion and for avoiding military service. He alleges t hat in 1992, he became a supporter of a political party called HEP as well as other parties subsequently. He was arrested six times, and beaten on some occasions during detention. When he completed his military service in 2003, because his family was involved in political matters he was constantly harassed. His home was also kept under surveillance. In April 2004, he went with a journalist friend to the address of a guerrilla, who had been killed in the mountains. He was approached and asked by the authorities if he wished to be an informer. If [he] did not do this, he was told he would be killed. He accordingly decided to leave Turkey. He paid $6,000 to an unknown agent and travelled to the UK by lorry."

12. The immigration judge then concluded:

"26. Although I accept that the Appellant on occasion was stopped, sometimes detained for short periods of time, and that he received some ill-treatment prior to his coming to this country, I do not find that his experiences amount to persecution or serious ill-treatment. My reasons are as follows:-

(1) Although he states that he was arrested and detained on a total of six occasions, these were between the years 1990 and 2004 when he left Turkey – a total of 15 years.

(2) Most of the detentions were for up to two days (Q9-AIR). Indeed, the arrest which he stated resulted in three days detention in 1993, he later said was for only two days, and it was only once, some 13 years ago in 1992, that he was detained for a week.

(3) He was not ill-treated on either of the last two occasions, 1999 and 2001 (Q68), so that the last time on which he was beaten looking at the answers given t0 Q9 and Q68 in conjunction, was in 1993. I appreciate that, at Q69, he stated that he was hit with batons in 2002, and there is perhaps some confusion in his answers. However, even if he was ill-treated then, it is the only occasion in the last 12 years.

(4) Whilst I would not wish to make light of such treatment, the fact is that the Appellant did not receive the sort of ill-treatment which is sometimes complained of in Turkish cases. There is no evidence that he required medical treatment.

(5) I do not believe that he would have accompanied a journalist to the home of a dead PKK guerrilla, had he felt that he was being watched by the authorities, or that would thereby be at risk of ill-treatment. The fact that he did visit the home, and apparently during day time, rather than at night, suggests that he felt he had nothing to fear.

(6) If, when he was apparently stopped following the visit to the guerrilla's home, the authorities had any real interest in him, I believe that he would have been detained. The fact that they did not detain him, and let him off with a warning, indicates that they did not consider that he presented any challenge to them, despite his family connections.

(7) The fact that he states that he was asked to become an informer also suggests, once again, that the authorities did not regard him as being so committed to one of the opposition groups, that he would not be prepared to assist them. I do, however, consider that the Appellant has exaggerated with regard to what he states happened. At Q127, he aid that the police told him that if he did not become an informer 'we will kill you. We will get rid of you'. It is interesting to note that, at the hearing, when it was pointed out that the police, having stopped him and taken him to Karacay, still permitted him to return home, he replied: 'Yes, they said think hard, we'll be seeing you again'. – I cannot accept that any threat was a serious one, or that the Appellant took it as such. Not only had he been left relatively un-molested over the years (bearing in mind the political affiliations of some family members) but it would have been far more likely that the police would have detained him rather than releasing him almost immediately."

13. The immigration judge then turned to a letter which the appellant claimed had been written to him by his sister, Guzel, from prison. He said:

"(8) I accept, on balance, that the letter written by Guzel was addressed to the Appellant, despite the fact that she refers to him as elder brother. However, I do not believe that she would have written to him if she felt he was at any risk from the authorities. After all, she would have been aware of the fact that the letter would be read at the prison, and the last thing she would have wished would have been for him to experience problems as a result. The letter, moreover, betrays no sign that he might face difficulties as a result of his past political involvement."

14. The immigration judge concluded:

"(9) In the light of the views that I have expressed above, I do not believe that the authorities have been looking for the Appellant recently as he alleges."

15. The immigration judge then turned to the issue of the appellant's return to Turkey and concluded, as I have already said, that he could return safely. However, in that paragraph, he said amongst other things:

"Moreover, the decision of MS (Turkey) [2004] UKIAT 00192 … suggests that 'the vast majority of detentions of political detainee go completely unrecorded by anybody."

That sentence has a particular relevance to this appeal. The appellant submits that it shows that the immigration judge did not apply the decision in IK [2004] UKIAT 312. Counsel for the appellant had referred to IK during the course of argument. She submits that MS is no longer an authority. That is right, but one has to be a little careful, in my view, as to what it was the IAT was saying about MS. In paragraph 17 of IS, subparagraph 6, there is a brief summary of the case of MS, and the part to which reference is being made is that part of MS which deals with computers and records and files.

16. An examination of the other six cases referred to shows that they are also concerned essentially with that topic. In paragraph 17, the IAT concluded:

"Accordingly this determination is intended to update and replace the seven decisions listed above [including MS] and to set out the tribunal's current country guidance on the issues covered in it."

17. As I shall show below, one of the principle cases, the principles of which remain good, is an earlier case of A (Turkey). However, I for my part have some doubts as to whether the immigration judge did overlook IK, but counsel for the respondent accepts the judge ought to have made mention of it and the fact that he refers to the replaced MS leaves some room for doubt. At the outset of paragraph 28, the judge said this:

"The Appellant could choose to return to his home area. I note that relatives, who are still involved in HADEP continue to reside there (Q91) including his grandfather."

18. It is on those two sentences that I base what I said in paragraph two of this judgment, namely that the inferential conclusion is that he was deciding there would be no real risk of persecution for a Convention reason upon the appellant's return to his home area.. There is no doubt at all that the immigration judge could have added more flesh to these two sentences. However, they must be read against the background of findings to which I shall turn later, and in particular, the finding of no persecution before the appellant left Turkey; the findings about the informer incident; the view of the aunt that the appellant was of no interest to the authorities; the finding that the authorities were not looking for him; and the absence of any evidence that the situation in Turkey had changed for the worse. Indeed, if anything, the evidence suggests the situation has improved.
19. Counsel for the appellant explains her grounds of appeal in her skeleton argument. She submits that the immigration judge erred in basing his conclusions relating to risk upon return, upon MS, which had been replaced by IK. I have already dealt with that point. She continues:

"(iii) … In particular, relying on MS the Immigration Judge erroneously concluded that the applicant's unofficial detentions would not be recorded; such conclusion is contrary to the conclusions of the Tribunal in IK where it was accepted that such unofficial detentions are recorded locally [at paragraph 75 to 77 of IK] …

(iv) The Asylum and Immigration Tribunal erred in failing to assess the appellant's claim with reference to the objective evidence before it. The determination contains no reference to the objective evidence (including the CIPU) which in facts supports the applicant's claim that persons with family associations to illegal organisations can expect adverse interest from the authorities, and further that those associated with DEHAP and HADEP continue to be targeted by the authorities.

(v) The Asylum and Immigration Tribunal erred in taking into account irrelevant considerations and failing to take into account material facts when assessing the risk upon return for the applicant, namely by placing undue weight on the fact that the applicant's family members continued to reside in the applicant's home area and by failing to consider that such family members continue to be targeted by the authorities."

For my purposes I shall group paragraph (iv) with paragraph (v).

20. During the course of argument, counsel for the appellant referred us to paragraph 14 of IK and alleged a failure on the part of the immigration judge to consider a number of potential risk factors there set out.
21. The respondent accepts that it would undoubtedly have been better had the immigration judge expressly referred to the decision in IK. However, he submitted that this error was not material and reference was made to R (Iran) & Ors [2005] EWCA 982, where Brooke LJ said errors of law are not material if they make no difference to the outcome of the appeal. It is submitted on behalf of the respondent that this error is one that fits in to that category. Counsel for the respondent, rightly in my view, places considerable reliance on the finding to which I have already referred in paragraph 26. I repeat it:

"I do not find that his experiences amount to persecution or serious ill treatment."

The appellant has no permission to appeal that important finding. It is important to understand that finding against the background of the history which the appellant gave – his arrests, detentions and treatment in Turkey – and against the background of what had happened, so he said, to his family.

22. Thus this appeal has to proceed on the finding that there had been no persecution for a Convention reason of the appellant before he left Turkey and came to this country. That, in my view, undermines the submissions which counsel for the appellant was making about previous arrests. Of course, past history of no persecution is not determinative of future risk, but unless circumstances in a country to which a person is to be returned have deteriorated, or there are other special factors, it is inevitable that an applicant will have difficulty in showing future risk in the absence of any finding of past persecution.
23. Counsel for the appellant took us in her reply to various passages in CIPU. Those passages show that from time to time, persons who have associations with HADEP may find themselves in difficulty. However, the finding of no past persecution makes this submission of little value. Counsel for the respondent relies, as I have already indicated, on the finding and in particular on the finding that the authorities had not been looking for the appellant recently, as he alleged.
24. Mr Grodzinski refers us to the finding that the appellant had exaggerated his account of the events which led him to leave. I turn first to the issue of the records, although it did not receive much attention during the course of argument. Mr Grodzinski took us to paragraphs 72 to 78 of the decision in IK. He places particular reliance on paragraph 76, in which the court concluded that the computer database would be:

"reasonably likely to include detentions of persons who were considered to be of material significance by the security forces even if they were thereafter released without judicial involvement".

He submits that the findings of the immigration judge show clearly that the appellant was not a person of material significance. I for my part see no merit in the ground that is concerned with the reference by the immigration judge to MS and records.

25. I turn to the second and third complaints, namely that the immigration judge erred in failing to assess the applicant's claim with reference to the objective evidence, which is said to support his claim that persons who are associated with HADEP and who have family associations to illegal organisations are at risk. I couple that with the third complaint, that the immigration judge erred in placing undue weight on the fact that the family members continue residing in the applicant's home area whilst at the same time, so it is said, failing to consider the appellant's evidence that such family members continue to be targeted by the authorities.
26. Mr Grodzinski submits that none of the risk factors identified in IK support the conclusion for which the appellant contends. Family connections are only one of many risk factors to be taken into account, and he submits – and I agree that it is quite clear – that the immigration judge was aware of and took into account the facts relating to the family's activities. It is in my view important to note, as Mr Grodzinski does, that the grandfather and the sister were continuing to live in their area, and though they had been arrested at some point, there were no continuing charges against them. He submits that there is no real evidence that, to use the words of the counsel for the appellant, the family members "continue to be targeted". I have already examined that evidence and I agree.
27. I finally turn to paragraph 14 of IK. There, the IAT repeated paragraph 46 of the tribunal's decision in A (Turkey). Counsel for the appellant was asked to identify on which of the potential risk factors she wished to replace reliance. It must be remembered, it has been said more than once, that the list there in paragraph 46 is not some sort of check list. What the list provides is helpful guidance to immigration judges when considering the issue of the return to Turkey of those of Kurdish descent. Counsel for the appellant identified:

"f) "Whether the appellant has family connections with a separatist organisation such as KADEK or HADEP or DEPHAP."

She also identified:

"h) Whether in the period after the appellant's last arrest there is any evidence that he or she was kept under surveillance or monitored by the authorities."

Sub-paragraph i) is a reference to Kurdish ethnicity. Sub-paragraph k), which she relies upon, refers to the lack of an up-to-date Turkish passport and m) asks: "Whether the appellant became an informer, or was asked to become one?"

28. Clearly, although the immigration judge did not refer to this list of potential risk factors, he addressed his mind to these matters. To take the example of the informant, I have already read out his conclusions about this matter. As the passage makes clear, the immigration judge could not accept that the threat which followed his refusal to become an informer was a serious one or that the appellant took it as such. The immigration judge said that the appellant had been left relatively unmolested over the years, bearing in mind the political affiliations of as some family members. As to f), the family connections, I have already looked at the evidence upon which the immigration judge relied earlier in this judgment. As to h), I have already referred to the finding that the authorities have not been looking for the appellant recently, contrary to what he said. In my judgment Mr Grodzinski is right when he says that the immigration judge did refer to the potential risk factors, albeit the immigration judge could have spelt these matters out more clearly. I have no doubt there is no merit in any of these grounds of appeal.
29. I turn again to the issue of past persecution. The immigration judge having found that there was no persecution of the appellant for a Convention reason before he left Turkey, then it is extremely unlikely that he would succeed, on the facts of this case, and absent any special factors, in showing that he was at real risk of persecution upon his return to his home area.
30. LORD JUSTICE HUGHES: I agree.
31. LADY JUSTICE ARDEN: I also agree.

Order: Appeal dismissed.