England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th June 2002

Mr Justice Lightman:

INTRODUCTION

1. This is an application made with the permission of Munby J granted on the 6th February 2002 for judicial review of the decision of the Immigration Appeal Tribunal (“the IAT”) dated the 24th July 2001 refusing permission to appeal from a decision (“the Decision”) of the Special Adjudicator dated the 22nd June 2001. By the Decision the Special Adjudicator dismissed appeals from refusal by the Secretary of State of asylum and human rights claims by the claimant Mr Tutus (“the Claimant”). The grant of permission by Munby J is limited to the issue of the availability of “internal flight” within Turkey to the Claimant.

FACTS

2. The critical facts in this case may be taken from the Decision. The Claimant is a Kurdish citizen of Turkey born on the 1st May 1978. He is an Alevi Kurd from Besni in East Central Turkey. He became an active supporter of HADEP, a registered and lawful political party in Turkey, whose objectives enjoy general support amongst the Kurdish community in Turkey. Though the party is lawful, the Turkish Government has at various times put pressure on HADEP: it has arrested (but subsequently released) members and has challenged its legality in proceedings in the Constitutional Court. But it has remained a lawful party, and in this regard is totally distinct from the PKK and the DHKP-C which are unlawful parties.
3. In 1996 the Claimant took part in the (lawful) celebration of the Kurdish festival of Nevroz in Besni. The police in Besni however decided to stamp down on the celebration and detained, roughed up and severely ill-treated the Claimant before releasing him without charge. The Claimant alleged that the police accused him of being involved with the PKK, but clearly the Adjudicator rejected this allegation as he was fully entitled to do on the evidence before him. The Claimant was ill-treated because the police did not favour the celebration and because harassment is often the lot of Kurds in Turkey.
4. In August 1999, the Claimant was charged with distributing pro-Kurdish leaflets, but he was released shortly thereafter because there was no evidence linking him with the distribution. The Claimant alleged that on this occasion the police accused him of being a “separatist” i.e. a person seeking a separate Kurdish state, but again (as he was fully entitled to do) the Adjudicator rejected this claim.
5. In October 2000 according to the Claimant he was detained once more and charged with being a separatist. The Adjudicator rejected his this allegation and no reliance is placed on this episode.
6. The Claimant thereafter left Turkey and arrived in the United Kingdom on the 12th November 2000. He claimed asylum, basing his claim on the fear of ill-treatment from the Turkish authorities on account of actual or imputed political opinion as a supporter of PKK and/or HADEP.

THE DECISION

7. The Adjudicator determined that, whilst the Claimant might be at risk of persecution if he returned to Besni, there was no such risk if he returned to live elsewhere in Turkey. The relevant passages in the Decision read as follows:

“FINDINGS ON CREDIBILITY AND ON FACT

...26. My overall conclusion is that the appellant, like so many other Kurds in the south-east, has been subjected to a degree of harassment by the police and that he was probably arrested on two occasions in 1996 and 1999. I am not, however, persuaded to the required standard of proof that he was of serious adverse interest to the police in his own area or that he left home when he did because his life was at risk. It has to be remembered that he had just been released by the police and that he had never been charged with any offence....

RETURNABILITY

27. On the basis of my findings of fact, I have now to assess whether there is today a serious possibility that the appellant would face persecution on account of his previous record and his political support for the Kurdish cause if he had to return to Turkey. In doing this I need first to consider how he might be treated on his arrival at Istanbul airport as a failed asylum-seeker. Next I must look at whether or not it would be safe for him to return to his own part of Turkey and, if I consider that there is a reasonable likelihood of his facing persecution there, I must consider whether he could safely live in some other part of the country, in particular the large western cities which are today inhabited by very large numbers of Kurds who have decided to move there because they are less subject to harassment or there are more employment opportunities.

28. On the basis that the appellant is an active supporter, even if not a formal member, of HADEP who has been arrested probably twice but just possibly on three occasions between 1996 and October 2000, I have looked at the references required by Mr Jackson on behalf of the appellant and also at the relevant sections of the recent Home Office Paper. From these it is clear that the security situation in the south-east of Turkey is today somewhat calmer that it has been in previous years. Indeed since the PKK cease-fire took effect in August 1999 there was - as of October 2000 - a 90% reduction in violence in the south-east (para 4.27). This appears to have coincided with at least a partial reduction of PKK fighters within Turkey. Inevitably this must have helped to reduce the pressure exerted by the Turkish security forces and police on Kurds at all levels. That said, it is clear that those suspected of being seriously involved with separatist activities, usually with the PKK, remain a target for the army and the other law enforcement agencies. As to HADEP, the UN Economic and Social Council Report of January 1999 (p. S149 in appellant’s bundle) records raids on their offices throughout the country during 1998. A large number of leaders and members were then arrested for interviewing. The great majority were, however, released quite soon. It seems clear from this and from other reports that the authorities are mainly interested in leading lights within the party and certainly not low-level activists undertaking the kind of minor jobs such as those that the appellant carried out. On no occasion has he been charged with any offence, has no outstanding charges and I strongly doubt that there would be any adverse record against him, at least at the national level. I can not accept this as reasonably likely. At the very most he might be known as a potential trouble-maker amongst the police in his own home town.

29. My assessment as to the risk which the appellant would fact on return to Turkey today depends very little, if at all, on whether he was detained on two or on three different occasions. Although I have very serious doubts that the last arrest ever occurred, if it did then it appears that the police were prepared to give him another chance telling him that they hoped he would become more reconciled to the authority of the Turkish state. This would, of course, tie in to some extent with the cease-fire announced by the PKK at the behest of Adbullah Ocalan in August 1000. My overall conclusion is that there is effectively no risk that the appellant would be subjected on return to Turkey to extended interrogation of the kind normally reserved for those known to have a separatist record. The Home Office Paper at para 7.34-42 indicates that returnees without documents are questioned. I am not quite sure whether the issue to the appellant of a travel document by the Turkish Embassy in London will obviate this particular questioning or not but I note that in the case of those returning from Germ any the Turkish authorities do tend to be suspicious of those known to be asylum-seekers. It is, however, clear that being of Kurdish origin does not in itself constitute a higher risk of inhumane treatment and that everything depends on the circumstances of the particular individual, especially his previous record in Turkey and/or abroad. My firm view is that this appellant would not be exposed to the serious possibility of being subjected to severe ill-treatment on his arrival in Istanbul.

30. Giving the appellant the benefit of all the doubt to which he is entitled under the lower standard of proof, I am prepared to accept that he is reasonably likely to be known to police and the jandarma in Besni and that therefore he might again fall foul of them, particularly if they felt that he might have been engaged in separatist activities during his long absence. Accordingly on the basis of all the evidence available to me, I find that the appellant cannot be safely returned to his home town.

31. This conclusion means that I must now consider whether there are other parts of Turkey where it would be safe for the appellant to re-locate and where it would not be unduly harsh to expect him to live. The first point to make is that very large numbers of Kurds have either moved away from the rural areas into the cities of the south-east or they have migrated to the majority population centres in the west of the country. According to para 7.27 of the Home Office Paper as many as 3.5 million Kurds have left south-east Turkey since 1984. In the following sub-paragraph it is stated that UNHCR have advised that Kurds generally have a possibility to re-locate within Turkey. Those internally displaced to not face serious security problems. UNHCR goes on to suggest that those suspected of having a connection to or sympathy with the PKK, or otherwise having a political profile would not be able to avail themselves of the option of moving to a region outside the south-east. I have no reason at all to believe that the appellant would fall into the category of being today seriously suspected of having any connection with the PKK or having a political profile in the normal sense of that term. The appellant himself complained that it would not be safe for him to move to one of the cities because on his arrival he would have to report to the local Mukhtar of the area or suburb and that this would reveal his Kurdish origins. The objective evidence does not suggest that today this is still a major obstacle. Indeed the fact that such huge numbers of Kurds have been able to re-locate safely shows that this is not a serious problem. Accordingly I find that the appellant is not in need of international protection in the sense that there are many placed within Turkey where he could not re-locate and live without being at risk of a serious possibility of being persecuted....

33. Having carefully considered all the evidence before the appellant has not satisfied me to the required standard of proof that he would not safely be able to return to Turkey and then to live in some other part of the country other than his own area. He does not today have a well-founded fear of persecution throughout the country. It would not be unduly harsh for him to re-locate to a safe part of the country away from his own home area.

Decision

34. For these reasons that I have given, I dismiss this appeal.”

ISSUES

8. The issue before me on this application is whether the Decision on the issue of “internal flight” is one which the Adjudicator was entitled to reach. It is common ground that: (1) on his return to Turkey, since he does not have a travel document, the Claimant may be subject to interrogation; and (2) ill-treatment of him cannot be ruled out if he is suspected of being connected with or being a sympathiser with the PKK. It is for this reason that the UNHCR advised that it is essential to find out in a case such as the present whether the Claimant as a returned asylum seeker, if returned, would be at risk of being suspected of connection to or sympathising with the PKK or having otherwise a political profile. If he would be at risk, he should not be considered as having available to him the option to re-locate in a region outside the south-east of the country. The critical issue before the Adjudicator was accordingly whether the Claimant was at such a risk.
9. The Adjudicator correctly addressed this question, evaluating any risk at three distinct stages in respect of any return to Turkey. The first stage was arrival at Istanbul airport. The second stage was a return to Besni. The third stage was on relocation elsewhere in Turkey.
10. Turning first to arrival in Istanbul. The Adjudicator first pointed out (as is made clear in paragraph 7.37 of the Turkey Country Assessment of April 2001) that being Kurdish does not of itself constitute a higher risk of inhumane treatment (and that everything depends on the individual and his activities in Turkey and abroad). He then went on to say that there are no grounds for considering that there have been any activities on the Claimant’s part which could expose him to any such risk. There would be no interest in low-level activists in HADEP such as the Claimant: no charges have been made against him and he has no criminal or separatist record. There is no reality in any risk that the authorities in Istanbul will have any details of, or have any interest in, the two (or possibly three) earlier detentions. Accordingly whilst the Claimant because he has no papers may be subject to an extended interrogation, there can be no risk that he will be subjected to the “extended” interrogation and ill-treatment reserved for those with separatists records.
11. The Claimant submitted that a contrary conclusion should be reached for two distinct reasons. The first was a passage in the Home Office Fact Finding Mission to Turkey which the Claimant relied on as establishing that there was a risk that information regarding these detentions in Besni would be passed to Istanbul. Leaving aside the objection that this Report was not referred to before the Adjudicator or the IAT and the fact that its contents can only afford one of many sources of information regarding conditions in Turkey, the Report goes no further than suggest that, if a person comes under suspicion in one part of Turkey, the police may pass it on to another part to which the individual moves. It does not advance the Claimant’s case where (as here) the question is whether the Claimant has already come under suspicion. There is, as I have said, no basis here inferring that the Claimant has ever come under suspicion of sympathy for or connections with the PKK or of being a separatist. (I say more on this in paragraph 12 below). Secondly the Claimant also sought to rely on a number of reported decisions where the existence of evidence establishing the risk of suspicion of PKK or DHKP-C sympathies was held to entitle persons to asylum. That evidence is lacking in this case and those authorities are of no assistance.
12. The Adjudicator then turned to the Claimant’s future life in Besni. The Adjudicator was prepared to accept that, having regard to the endemic harassment of Kurds in Turkey, with the Claimant’s previous unhappy experiences in Besni, he might fall foul of the police again if they felt that he might have engaged in separatist activities during his long absence abroad. There is no question of the Claimant having so engaged himself, but the Adjudicator was willing to infer a risk of the recurrence of his previous harassment at the hands of the same police of whom he had fallen foul of previously. It is important to note that it formed no part of his reasoning that the Claimant was at any risk of being suspected of any connection or sympathy with PKK by reason of his activities in Turkey prior to his leaving Turkey for the United Kingdom. Out of an abundance of caution however the Adjudicator was willing to proceed on the basis that, by reason of their view of him as a trouble maker as well as a Kurd, the police in Besni might falsely allege activities in the United Kingdom after he left Turkey as a pretext for further harassment, and the Claimant should be protected from such harassment.
13. The Adjudicator then turned to consider relocation in areas to which large numbers of Kurds had already moved. The starting point was the recognition by the UNHCR of the possibility of such relocation in Turkey by those not suspected of having a connection to or sympathy with the PKK or otherwise having a political profile. He stated that he had no reason to believe that the Claimant fell within the category of persons suspected of having any connection with the PKK or having a political profile in the normal sense of the term: he could now relocate and live without being at any serious risk of a serious possibility of being persecuted.
14. The Claimant attacks this reasoning on two scores and I must consider each in turn. (a) The first is the contention that the statement of the absence of a reason to believe that the Claimant might be suspected is inconsistent with the view expressed in paragraph 30 of the Decision that the Claimant is at risk at Besni. There is no such inconsistency. The decision reached in respect of a return to Besni was in nowise premised on the existence of a present risk of any existing suspicion in Besni or elsewhere in Turkey of a connection with the PKK or of the Claimant having a political profile. The risk was that in the future there might be an unfounded suspicion given impetus by the previous episodes when the Claimant fell foul of the local police. The situation is to be contrasted with that in Bulent Kabe v. SSHD (IAT 12th March 2002) where there was a present risk of an existing suspicion in the applicant’s home town which might percolate to wherever he moved. (b) The second is a contention that significance should be attached to the absence of an express holding that there was no ground for suspecting sympathy (as opposed to a connection) with the PKK. In my view reading paragraph 31 (together if necessary with paragraph 34) makes plain that the omission has no significance. The omission is plainly one in reducing the Adjudicator’s reasoning to writing. It is plainly implicit that the Adjudicator found as a fact that there was no risk of suspicion of a connection or sympathy and that accordingly internal flight was available.

CONCLUSION

15. For these reasons, despite the full and persuasive submissions of Mr Grieves, I conclude (in agreement with the IAT) that the Adjudicator was fully entitled to decide that, if the Claimant is returned to Turkey and avails himself of the opportunity to live in Turkey away from his home in Besni, he will be at no risk of persecution. I accordingly refuse this application.