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
		23rd January 2006

1. LORD JUSTICE LAWS: This is an appeal with permission granted by Ward LJ on 9 May 2005, against a decision of the Immigration Appeal Tribunal (the "IAT") notified on 12 January 2005, when they dismissed the appellant's appeal against the adjudicator's determination of 23 April 2004. The adjudicator had dismissed the appellant's appeal against the refusal of asylum and the issue of removal directions by the Secretary of State on 21 March 2003. Permission to appeal to this court was first refused on the papers by the IAT itself, and then by Scott Baker LJ on 7 April 2005. It was granted by Ward LJ after an oral hearing in which the appellant was represented by Mr Mukherjee of counsel, as she has been today. I should say that the IAT had at first refused permission to appeal to itself from the adjudicator's decision, but that refusal was quashed by the High Court on a statutory review on 13 October 2004, and so the matter went to the IAT whose decision, as I have said, was notified on 12 January 2005.
2. The appellant is a citizen of Turkey. The nature of her asylum claim was described by the IAT as follows:

"The Appellant's claim (which the Adjudicator found to be generally credible) can be summarised as follows. She was born in 1980 in the small village of Yesilbelen, near Karakocan, in Elazig Province in southeast Turkey. Her father died in 1980 and her mother remarried. The Appellant is the eldest child of the family and her father's only child. She has two younger half-brothers and one half-sister. She also has two step-brothers. In 1996 the Appellant married Osman Demirkol, a cousin, and she went to live with his family in the neighbouring village of Citak. The Appellant's husband came to the UK and claimed asylum in October 1999. The Appellant left Turkey for the UK on 10 December 2000 and applied to be a dependent on the claim for her husband. The husband's claim was refused in March 2001 and his appeal against this decision was rejected by a different Adjudicator in September 2001. No further appeal ensued. On 21 November 2002 the Appellant applied for asylum in her own right. She claimed to fear persecution by reason of her own activities in Turkey, her family's activities and those of her husband.

Her family supported the PKK by giving them food and assistance. Her father's cousin on the maternal side was a member. In 1988 the village school was burned down by the army and most of the villagers were beaten, including the Appellant, who was then very young. In 1989 a gendarme station was being built in the village. The Appellant, her grandparents and her mother were taken to the site by soldiers and questioned. They were forced to carry stones and water to help complete the building of the station. After some time they were released. During the night the Appellant's mother ran away and remarried, though the Appellant did not become aware of this remarriage for a year or two. In 1994 the family home was raided and the Appellant was detained with her uncle and grandmother for four days. She was badly treated. She was accused of helping the PKK, which she denied. She was severely beaten and raped by two people who told her never to talk about the incident. Before being released her fingerprints and photograph were taken. In 1996 the Appellant married her husband, as described above, and she moved to Citak. In 1997 the family house was raided and her husband was taken away. The Appellant was again raped. Her husband was released a few days later with extensive bruising. As a consequence of this and of frequent raids on their home, her husband left Turkey in 1999 to claim asylum in the UK. After he left, soldiers and Special Forces continued to raid the house looking for her husband. They suspected that he had joined the PKK. In that year, the Appellant went to live with her mother in Istanbul. She stayed there for only one month during which there were four or five raids on her mother's house by the authorities, who were seeking information about suspected activities of the Appellant's mother and stepfather. The Appellant was not a target of these searches but was harassed and intimidated during them. She therefore returned to her home village. The raids on her family home continued. In 2000, she came to the UK."

3. The adjudicator found at paragraph 41:

"..that the acts of rape of the appellant were not merely carried out for sexual gratification, but were very likely to have been acts of political persecution because of her perceived support for the Kurdish cause."

4. They would anyway, of course, amount to acts of ill treatment repugnant to Article 3 of the European Convention on Human Rights. So the adjudicator proceeded to ask himself (paragraph 42):

"..whether or not the appellant would be at real risk of persecution or of breaches of Article 3 if she were returned to Turkey."

5. After referring to the IAT decision in O [2004] UKIAT 00038, and fresh information contained in the CIPU report of 10 October 2003 relating to the Turks' computerised records system, he concluded (paragraph 48):

"that there is no basis upon which the appellant can claim that she will be in reasonable risk of persecution on her return, even if she is, as seems to me most likely, to be accompanied by her husband."

6. The adjudicator also proceeded to consider (paragraph 49):

"whether there is any real risk to the appellant and her husband… after they had left the airport of entry which will almost certainly be Istanbul."

7. He found there was nothing in the facts of the case which would lead to any continuing interest in the appellant if she were returned to her home area. Then he said this:

"I think that I should go on to say whether she might reasonably be expected to relocate somewhere else in Turkey in case I have erred in relation to my above findings. I have found that the appellant was generally a credible witness and I am prepared to accept that she may have been in difficulties in Istanbul because her mother's home was raided on four or five occasions. That, it seems to me, does not preclude her from being able to relocate elsewhere in Turkey with her husband without it being unduly harsh for her and him to do so."

8. The adjudicator dismissed the appeal.
9. I turn to the IAT decision. They recorded the fact that permission had been granted on a statutory review in the High Court to enable a challenge to be mounted to the guidance given by the IAT in the O case to which the adjudicator had referred. However, as the IAT said in paragraph 5:

"..all the relevant issues were subsequently considered by the Tribunal in its country guidance decision in IK (Returnees – Records – IFA) Turkey CG [2004] UKIAT 00312."

10. The IAT then proceeded, in paragraph 9, to summarise the country guidance given in IK, or rather to replicate the summary given in IK itself at paragraph 33. They noted (paragraphs 7 and 10), that the Home Office presenting officer had himself conceded that the IAT "might accept" that the adjudicator had erred in concluding that the appellant would not have been at risk in her home area; but they proceeded to make their own assessment of that issue. They described the "relevant risk factors" in very considerable detail in paragraph 10, which I will not read out. They concluded (paragraph 11) that the adjudicator had been wrong to hold that the appellant would be at no real risk in her home area, essentially because he had focused too much on the question of records rather than on past events, and whether those responsible for the appellant's previous ill treatment and had knowledge of her circumstances would still be around.
11. The IAT then said this:

"However under the guidance of the Court of Appeal in CA, such an error has to be material to the outcome of the appeal. We consider that it is not. We can see no error of law in the Adjudicator's alternative assessments that the Appellant will be at no real risk of persecution or a breach of her human rights either on return at Istanbul Airport or on internal relocation elsewhere in Turkey, or indeed, as we consider, in Istanbul itself. In this assessment the nature of the records and what they will show of the Appellant's material history is of more significance. The Appellant will not appear in the GBTS, as she was not charged with any offence. She is not reasonable likely to be a subject of interest in any higher level security data system. Any enquiry of the authorities in her home areas either at the Airport or upon registration with a local Mukhtar will reveal at the most three brief detentions along with other people between 1988 and 1994, which fits the pattern of the general repression in the area at that time. The rapes will not be recorded. Her husband will be returned with her and will be able to explain where he has been since 1999. The activities of her family did not result in further detentions of the Appellant after 1994 and would not now be reasonably likely to create real risk for her away fro her home area. The problems experienced in Istanbul in 1999 related to her mother and sep-father and not to her. Her mother has not felt the need to leave Turkey. We therefore conclude that the Adjudicator's overall conclusion is sustainable as there is no error of law in his assessment that the Appellant will not face a real risk of persecution or a breach of human rights on return to Istanbul Airport or when registering in a new area, and that it would not be unduly harsh to expect her to do so.

12. Before turning to the issues raised by the grounds, I should cite the IAT's reasons given on 3 February 2005 for refusing permission to appeal to this court, since these give rise to the second ground of appeal. The Vice President, Mr Batiste, said this:

"For all its length, the grounds of appeal effectively offer only an alternative view to that reached by the tribunal, but does not reveal any arguable area of law in the tribunal's determination. The tribunal took all material factors into account and applied the relevant country guidance. Its conclusions were properly reached and are sustainable."

13. There are two grounds of appeal. The first is that the IAT's conclusion that the appellant could safely relocate in Istanbul is irrational and unsustainable. It appeared from paragraph 10 of the appellant's skeleton argument prepared by Mr Mukherjee that this was essentially a reasons challenge; but as the submission has been developed today it is clear that it is being said that the conclusions were indeed simply irrational.
14. The second ground draws attention to the IAT's reference, when it refused permission to appeal to this court on 3 February 2005, to "an alternative view" of the case as being all that the proposed grounds of appeal comprise. It is submitted under this head that if the IAT conclude that there are two viable views of the case on its facts, the law requires it to accept the view more favourable to the appellant.
15. I deal at once with this second ground. It is, in my judgment, plainly bad. It is no doubt possible in theory that an IAT's comments made in refusing permission to appeal against an earlier decision of its own might themselves disclose or suggest a legal flaw in that earlier decision. But that is not the case here. It is of course only the legality of the IAT's substantive decision on 12 January 2005 with which we are concerned. As the skeleton argument prepared for the Secretary of State suggests, the approach propounded by the appellant appears to suggest that the legal test is only that a rational person might find a risk of persecution. That is enough for the claim to be allowed and admitted.
16. That would be a misconceived approach. The IAT's task was to decide whether, in its view, there was a real risk of persecution, or Article 3 ill treatment, applying the appropriate standard of proof as it did. In any event, and putting the matter much more shortly, the Vice President, in refusing permission to appeal on 3 February 2005, was not, in my judgment, holding that this "alternative view" was in fact a viable one or one that might be arrived at applying the proper standard of proof.
17. I turn to the first ground. The appellant makes various points. It is said in the skeleton argument at paragraph 11(a) that the existence of records about the appellant in her home area being, on the IAT's findings, also available elsewhere, should have led them to conclude that the appellant would be as unsafe elsewhere as she would be in that home area. But, as the respondent's skeleton points out, the IAT did not find that she would be at risk in her home area because of the records.
18. Next I take paragraph 11(c) of the skeleton. There is a point about the breadth of information that might be recorded on the GPTS computer record system, other than three detentions. But there is no argument or reason about what other material, relevant to a risk of persecution, might be recorded.
19. Today Mr Mukherjee has also submitted that, on the appellant's history, she would be suspected of connection with the PKK and therefore no internal flight alternative was properly available. He refers to the citation of UNHCR guidance in the IK case. It is to be noted, however, that under the list of risk factors the IAT had said this (paragraph 10(2)):

"As no detention resulted in charges, they will not be recorded in the GBTS. Given the Appellant's youth, and that she was never again detained after 1994, even though she remained in Turkey for a further six years, it is unlikely that she was regarded, even in her home area, as personally an object of material adverse interest or that these detentions would have been regarded as sufficiently noteworthy to be recorded in any other central computer database."

20. For my part, I cannot see how anything in the IK guidelines begins to affect the IAT's reasoning in paragraph 12 of the decision. Mr Mukherjee submits that IK shows that no one suspected of assisting the PKK could safely relocate in Turkey. But the IAT's general conclusions in the IK decision, as with any country guidance case, are necessarily to be read subject to the detailed facts which the particular case raises.
21. I turn back to the skeleton. Paragraph 11(b) alleged that the fact relied on by the IAT that the appellant's mother has remained in Turkey – I think throughout in Istanbul – is irrelevant to the persecution issue. I am inclined to disagree with that, but it is in any event a matter of judgment. Then at paragraph 11(e) it said that the fact that the appellant's husband would be returning with her, and so able to explain his whereabouts since 1999 – a matter relevant to the raids on the appellant's house after that date – cannot mitigate any risk to the appellant outside her home area, as some reasons have been suggested.
22. But the IAT's approach to this in paragraph 12 of the decision, forming part of their overall conclusions on internal flight, is in my judgment without any legal mistake. Mr Mukherjee has urged in general terms that the risk to the appellant in her home area will be, so a rational tribunal ought to have found, translated to a like risk elsewhere. If she were to relocate in another part of Turkey that would be so, he says, because of the perception in which she would be held as a PKK sympathiser by officials, and perhaps others, in Turkey. This submission, in my judgment, could properly have been made to a tribunal looking at the merits. Addressed to us, the argument misunderstands this court's role. Most of Mr Mukherjee's address has been an appeal to the factual merits couched in the language of the Wednesbury principle. We are not the judges of the factual merits and there is no Wednesbury point in the case. The tribunal's reasoning is painstaking and clear.
23. The error made by Mr Mukherjee, as it seems to me with respect, is to treat the country guidance case of IK as if it set out a series of sharp-edged rules for the application of the tests of refugee status. That has never been the function of decisions such as IK, nor could it be.
24. One argument advanced by Mr Mukherjee in his skeleton has given me pause. It is to be found in paragraph 11(b) of the skeleton. It is that the IAT could only interfere with the adjudicator's decision on grounds of law. That has been the position by force of Section 101 of the Asylum and Immigration Appeal's Act 2002 in relation to adjudicators' decisions promulgated, as was the case here, after 9 June 2003. It said in this case that the adjudicator's view that internal flight in Istanbul, although the IAT disagreed with it, was not a legally impermissible view. Hence the IAT had no business, indeed no jurisdiction, to interfere with that conclusion arrived at by the adjudicator.
25. For my part, I think that is right, but it does not carry the appeal. The reason is that it does not touch the adjudicator's further conclusions (paragraph 49), that difficulties in Istanbul:

"do not preclude her from being able to relocate elsewhere in Turkey with her husband without it being unduly hard for her and him to do so."

26. That conclusion is also without legal flaw and in those circumstances, it seems to me, there is no basis on which the tribunal's decision to uphold the result arrived at by the adjudicator could be impugned in this court. For those reasons, I will dismiss this appeal.
27. LORD JUSTICE WILSON: I agree.
28. LORD JUSTICE RICHARDS: I also agree.

Order: Appeal dismissed.