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
(AIT NO. HX/38690/2003)

		Royal Courts of Justice Strand London, WC2
		9th March 2006

1. LORD JUSTICE GAGE: This is an appeal by the appellant, a citizen of Turkey who was born on 1 January 1973 and is therefore 33. He follows the Alevi religion but is not of Kurdish ethnicity. He arrived in the United Kingdom on 17 December 2002 and was given leave to remain until 2 June 2003. In the meantime, on 22 January 2003, he applied for asylum. This was refused by the Secretary of State by a written decision dated 17 March 2003. He appealed against that decision. His appeal was dismissed by the adjudicator in a written decision promulgated on 15 September 2003. His appeal was on both asylum and human rights grounds.
2. The facts are as follows: he claimed that he had suffered persecution by reason of his religion and also his political opinion. He said that the village where he was born was mainly an Alevi village and he did not suffer many problems there.
3. However, he moved in 1999 to Gazientep with his wife and family and he claimed that there he was pressurised especially during Ramadan. He reported having windows smashed on a few occasions. He said that he complained to the police but no action was taken. He became a supporter of HADEP, which he saw as supporting the Alevi people and those who suffered discrimination. He took part in pre-election campaign in April 1999 by putting up posters and attending meetings. He also provided some financial support. He reported that he was detained on 21 August 2001 when the police raided the HADEP building. He was arrested with six other people and questioned about his support for the party. During the interrogation, he said that he was handcuffed and blindfolded and hit with truncheons and sticks. He was detained for five days but then released without charge. After his detention, friends and relatives helped him to obtain a visa and he went to Hungary for ten days. In October 2002, he obtained a visa and went to Austria for ten days. On each occasion, he was able to return to the business which he carried on, which at the time was helping his father-in-law at an estate agency. He reported that thereafter on a few occasions his house was raided and ransacked for any documentary evidence.
4. A second arrest occurred about a week before the election on 3 November 2002. He had been distributing leaflets and posters on behalf of HADEP as part of the pre-election campaign. When he had finished he was arrested by police, who arrested four people in all. He was taken to the police station and again handcuffed and interrogated. His account was that he was beaten with butts of guns and was hung from the ceiling for about ten minutes. He lost consciousness. He said in his statement that he was subjected to falaka but the adjudicator did not accept that part of his evidence. As a result of the beating he said he sustained an injury on his right side just below his waist. He was bleeding but he was not given medical treatment. He was released after four days, but warned not to go to hospital for treatment. Shortly after that incident, he arranged through an agent to get a visa to come to the United Kingdom, pretending that he was on a business trip. He went to Istanbul by bus, joined the agent and flew to the United Kingdom by direct flight. He reported that after his arrival on 5 January 2003 he spoke to his wife, who told him that the house had been raided.
5. The adjudicator found that on the whole he was a credible witness and found those matters which I have just related as facts, save for the one exception in relation to him being subjected to falaka. The adjudicator found that the two periods of detention did not of themselves cross the threshold into persecution. He went on to find that although on return the appellant might be questioned at the airport, beyond that he could not see anything which would actually cause the authorities to have any interest in him. He also found that the appellant had failed to demonstrate that he would not be able to take advantage of internal flight.
6. The appellant appealed to the Immigration Appeal Tribunal and his appeal was dismissed. So far as that appeal is concerned, the reasons for permission being granted were given in writing and read:

"1. The adjudicator accepted that the claimant had been detained and had suffered some degree of mistreatment. However, he was not satisfied that his treatment had mounted to persecution nor that he would be at real risk of such treatment being repeated on return. He was not satisfied that the claimant had demonstrated any separatist views;

"2. The grounds argue that the adjudicator was wrong to describe HADEP as a legitimate party and that he failed to consider all the factors in A;

"3. On balance, I am satisfied that the grounds do raise properly arguable issues of law material to the determination."

7. The written decision of the Immigration Appeal Tribunal refers to those reasons at page 22 of the appeal bundle. It is clear from what is set out there that one of the grounds of appeal was the second reason given for the appellant getting permission to appeal. However, the main focus of the Immigration Appeal Tribunal appears to have been on the issue of whether or not he would have been detained at the airport on re-entry to Turkey. As to that, the Immigration Appeal Tribunal found that he would not be so detained and dismissed his appeal. It found that there was no reasonable likelihood that he would on return be at risk of persecution. The grounds of appeal to this court today have centred on one single ground of appeal and that is an observation in the adjudicator's decision, which does not appear to have been dealt with by the Immigration Appeal Tribunal.
8. It is submitted on behalf of the appellant that the adjudicator minimised the importance of the appellant's link with HADEP; so that coloured his decision on the various factors which he took into account in arriving at his conclusion that the appellant would not be at risk. The first point taken on behalf of the respondent is that that was not a matter which was pursued by the appellant before the Immigration Appeal Tribunal. Accordingly, Miss Broadfoot submits that the Immigration Appeal Tribunal had no duty to deal with it. It is quite clear from the passage of the Immigration Appeal Tribunal's decision to which I have referred, that that was clearly before it as a ground of appeal. What is not so clear is whether or not it was pursued by counsel at the hearing. For myself, I would not be prepared on the information that we have to find that it had not been pursued. It seems to me that the material before this court is not sufficient for us to hold that it had not been pursued.
9. Accordingly, the focus of this appeal has been on the issue as to whether or not that part of the adjudicator's decision which is criticised was material. Miss Broadfoot accepts that the adjudicator was in error when he stated at page 63:

"The appellant has not demonstrated any separatist views. He has demonstrated interest in a legitimate party which admittedly is still suspected by the authorities ..."

It is accepted that by his reference to HADEP being a legitimate party, the adjudicator fell into error. It is quite clear that at the time of the adjudicator's decision, it was not a legitimate party. It had been banned some five months earlier.

10. The question therefore is: was it a material error or was it something which did not affect the efficacy of the conclusions which he had reached? For the appellant, Mr Grieves submitted that it demonstrated in that passage, that the adjudicator had not properly taken into account those matters which he was required to take into account by the decision in A (Turkey) [2003] UKIAT 00034.
11. It is necessary first to turn to the whole of the adjudicator's findings on this issue. They appear at paragraphs 16 and 17 of his decision which reads:

"16. In my view, these two periods of detention do not by themselves cross the threshold into persecution. In any event, the main issue before me today is to consider what treatment the appellant is likely to receive on his return to Turkey if he does return. He must demonstrate that he is at real risk of being persecuted for a reason within the Refugee Convention or of suffering treatment contrary to his human rights. In my view the evidence falls short of showing that he is likely to suffer such treatment or indeed that he is of any interest to the authorities. I have taken account of the points made by Miss Marks in the skeleton argument. I have considered the recent cases of Hayser [2002] UKIAT 07083 and of A (Turkey) the reference to which I have already referred. Both set out lists of factors which are relevant to consider when considering the question of a returning asylum seeker. I appreciate that the appellant may well be questioned at the airport upon his return. He will be able to travel on his own passport but it has by now expired and this may give rise to some questions. The Turkish police records are efficient and it is likely that his two previous arrests will be shown on his record. However, beyond this fact, I can see nothing which would actually lead the authorities to consider that they would have any interest in him."

12. There then follows the passage to which I have already referred and I repeat:

"The appellant has not demonstrated any separatist views. He has demonstrated interest in a legitimate party which admittedly is still suspected by the authorities but since the appellant has been released on the two occasions without any problems, I do not see this being a difficulty for him."

13. Miss Broadfoot on behalf of the respondent submits that it is perfectly clear from those paragraphs that the adjudicator had well in mind the lists of factors which he had to take into account when deciding whether or not the appellant was at risk on return. She reminds the court that the adjudicator specifically referred to the case of A. He referred to the fact that the appellant had left on two occasions and been able to return to Turkey without difficulty. It has to be remembered, of course, that at that time when he left and returned to Turkey, HADEP was apparently not a banned party.
14. So the question really is: was this a material error? In my view, the error made by the adjudicator in misdescribing HADEP as a legitimate party is such that in the context of this case, it was capable of amounting to an error of law. It is clear from the country guidance cases that HADEP has been a banned party for some time. In an earlier incarnation, we are told it was banned. It was banned again some five months before the hearing before the adjudicator. It is also clear that HADEP leaders and members have been subject to regular harassment and detention; that is clear from A.
15. There is a section in the written decision in A when the tribunal set out a summary of the position of HADEP. It is unnecessary to recite that passage. It appears at paragraphs 18 and 19 and there is a further passage at paragraphs 22 and 23 of the same decision which deals with the risk on return. In my judgment, there is force in the submission made by Mr Grieves that the adjudicator did not give full effect to that decision. At paragraph 46 of the decision in A, the tribunal referred to a number of factors which should be considered by an adjudicator when assessing the risk. It makes it clear, as one would expect, that the list is not exhaustive, and is not to be treated as a list which has to be specifically referred to in every instance. But it equally makes quite clear in (a) that the level if any of the appellant's known or suspected involvement with a separatist organisation has to be considered. It further makes clear in (f) that whether the appellant has family connections with a separatist organisation such as KADEK or HADEP or DEHAP, is a factor to be taken into account. From its previous reference to HADEP, the reason for it to be taken into account was because HADEP gave rise to suspected separatist tendencies.
16. Equally, in (l) the tribunal referred to as a factor whether there is any evidence that the authorities have been pursuing or otherwise expressing an interest in the appellant since he or she left Turkey. In that connection, Mr Grieves points to the fact that the adjudicator records the appellant as saying that his wife had informed him when he was in the United Kingdom that his home had been raided. Despite the fact that the adjudicator stated that he had taken into account the cases of Hazer and A and looked at the list, in my judgment looking at the position where he has expressed HADEP as a legitimate party, and taking into account those factors to which I have referred which are not expressed in his decision, it seems to me that there are at least grounds for saying that if he had properly assessed the connection with HADEP he might have reached a different conclusion. The difficulty, so far as the Immigration Appeal Tribunal decision is concerned, is that it did not expressly address this point.
17. As Scott Baker LJ said when giving permission in this case, what it ought to have done was to have identified the point of law and then assessed the adjudicator's decision in the light of that. It did not do so and in the circumstances, in my judgment, the IAT's decision is flawed. I would allow the appeal. For my part I would remit the matter to a fresh tribunal so that it can reconsider the adjudicator's decision in the light of this judgment.
18. LORD JUSTICE CARNWATH: I agree on the limited ground that a potentially significant issue was clearly raised by the grounds of appeal to the IAT but was not dealt with by them. It may be that this was because the point was not in the event pressed in argument and, as my Lord has said, we do not have clear evidence on that. However, the tribunal had mentioned this ground of appeal and, if it considered that it had been abandoned because of the way the matter was put, it should have made that clear in the decision. That not having been done, I agree with my Lord that it would not be safe to assume that it had been abandoned in the absence of evidence to that effect.
19. I would only add this. I have some doubts about the significance of the question of whether HADEP was in fact banned or not. I have some sympathy with the adjudicator on this point. The statement of the appellant before the adjudicator which was prepared in January 2003 referred to HADEP as "a legal party", which it clearly was at that time. The Hazer decision to which my Lord has referred was heard in January 2003. Although HADEP had not then been banned, the list of special factors referred to in that case included a connection of HADEP as one of those factors. The same reference appeared in A, and the fact that HADEP was by then banned whereas DEHAP was not, was not highlighted as a material point. It may be that the adjudicator did not have the distinction clearly drawn to his attention. However Mr Grieves has referred us to the earlier parts of the decision in A which show that the IAT were regarding the banning of HADEP as a "particularly significant aspect" and one which certainly increased the risk. From that he can show that this was at least a potentially material issue which might have affected the decision, and that is sufficient for his purposes.
20. LORD JUSTICE LATHAM: I also agree. It seems to me that the question which we have to determine is the extent to which the mistake which the adjudicator made, which is accepted to the effect that in his decision he was asserting that HADEP was a legal entity, was a material mistake. It was undoubtedly part of the grounds of appeal from the adjudicator to the tribunal and indeed was expressly stated, as my Lord has indicated, as one if not the main ground of appeal for the tribunal to consider. The problem is that, as has been explained, it was not. The difficulty it seems to me in the way of Miss Broadfoot in arguing that it was an immaterial consideration and therefore a mistake which should not have infected the adjudicator's decision and accordingly should not have been a matter which was relevant for consideration by the tribunal, is a passage in paragraph 6 of the decision in A, which in my judgment makes it clear how and why the issue is relevant. The passage reads:

"For now we consider that it is worth making the point that we are determining these appeals in the somewhat volatile context and the particularly significant aspect of this, which again we should deal with in more detail subsequently, as the recent outlawing of HADEP by the constitutional court. This is done on the basis that it was closely linked to Kurdish rebels and therefore, as we shall describe, subsequently may arguably increase the risk of HADEP members or supporters being associated with the PKK. This is clearly a relevant factor in assessing risk on return."

21. It seems to me that in those circumstances, the adjudicator fell into error in not dealing with that relevant issue. He fell into the error by reason of the mistake he made as to the status of HADEP. The tribunal should have dealt with that point and did not. I agree with both judgments that have already been given, that it would not be appropriate for us in this court to conclude that that issue was not dealt with because it was abandoned as an argument by appellant's counsel before the tribunal. That would in my view, potentially lead to injustice.
22. The right solution in those circumstances as my Lord, Gage LJ has indicated, is that this appeal should be allowed, the matter remitted to a fresh tribunal for it to consider the appeal on the basis of the grounds of appeal in respect of which permission was granted. The extent to which at the end of the day that will provide any succour to the appellant is another matter. It will all depend upon the consideration of the tribunal taking into account the relevant matters which appear to me to be properly set out in the case in A we and the decision here today.

Order: Appeal allowed.