England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		18 February 2003

1. MR JUSTICE COLLINS: The claimant in this case challenges a refusal of leave to appeal to the Immigration Appeal Tribunal, which was made as long ago as 7 February last year. The application for judicial review was lodged on 2 May, just within time, but unfortunately, for some reason, the claim was not put before a judge until very much later. It was not until 16 October that permission was granted by Maurice Kay J. It now comes before me a year or so after the refusal of leave which is under attack.
2. The claimant is a Kurdish citizen, originally from Turkey. She comes from what is described as a highly political family. I am told that three of her brothers and her sister have been granted indefinite leave to remain in this country, and that another brother has been granted refugee status in Austria. She has a cousin who was the PKK area Commander in the area in which she lived and who has been sentenced to a very substantial term of imprisonment.
3. She said that she became active herself in the sense that she was involved with the PKK in 1992 when she was still at school. She said she was first arrested in 1995 and was interrogated and held overnight and ill treated. She said she was beaten.
4. After leaving school, she assisted the PKK by providing support in kind, and was also involved in speeches in her village and this surrounding the area. She said she was next detained in the summer of 1996. She and her father were both then detained. She was held for two nights, and again was ill treated and beaten. In the summer of 1997 she was interrogated again about having assisted the PKK, and, after being beaten, was released.
5. The final detention was on 18 March 1999 when she was carrying a parcel for the PKK in a bus. The parcel contained leaflets and posters and so she was detained and interrogated about the source of the parcel, and was again severely beaten. She was released pending a hearing. It would seem that what she was saying was that she was released on bail. She decided that she would not attend. She made her way to the United Kingdom concealed in the back of a lorry, and arrived on 3 July 1999 and made a claim for asylum.
6. The claim was not determined until 16 May 2001, when it was refused. The claimant appealed to an adjudicator. Her appeal was heard by Mrs Murray on 25 September 2001. The adjudicator in a lengthy determination sets out the account which was given by the claimant. She said that she did not leave Turkey on an earlier date because she wanted to graduate first. That she did in 1995. She did not leave until 1999. It is not entirely clear from the adjudicator's determination precisely why she was saying that she had not left earlier, despite being the subject of at least one further detention in 1997. It is not irrelevant to note that her father was still there and had reached the age of 70. Although he was an old man, pressure was still put upon him by the authorities. Effectively what she seems to have been saying was that she was the only member of his close family who remained to help to look after him and, effectively, that she had stayed as long as she felt she could, but the detention in 1999 followed by the likelihood of court proceedings against her was the final straw. The adjudicator directed herself that an assessment of credibility was indispensable in asylum cases. That is a self direction that I have frequently seen. In many cases it is indeed indispensable, but not in all. However, this was a case in which credibility was of great importance. In paragraph 49, she continued thus:

"I have a problem with credibility in this case. The appellant says that she has suffered persecution for four years from 1995 until 1999. She said in court that she did not want to leave Turkey because she wished to graduate. This is not the kind of statement that a genuine asylum seeker would make. The appellant then graduated in 1995 and still did not leave Turkey until 1999. If the appellant was suffering the harassment that she states she was suffering, then surely she would have let Turkey before that time. I therefore do not believe the appellant's story of her arrests and detentions."

7. Mr Waite has submitted that the adjudicator was entitled to reach that conclusion. She saw the claimant give evidence. She considered the account that was given and she rejected it. But she must have some reason for rejecting the claim. She does not herself rely on having seen and heard the claimant, or anything in the manner in which she gave evidence. She merely appears to believe that the statement that she did not wish to leave Turkey because she wanted to graduate was not the kind of statement that a genuine asylum seeker would make. I confess, I totally fail to see the logic behind that particular conclusion.
8. She then goes on to reject her credibility on the basis that if she was being harassed and detained on at least one occasion, she would not have remained. In certain cases that may be a good point, but it is equally likely to be a thoroughly bad one where, as here, she had, as she said, a reason to remain, namely to look after her father. Even without that sort of reason, it is no real surprise that someone, particularly someone who was politically involved, would want to remain and try to do as much as she could for as long as seemed to be tolerable. There came a time with her when she decided that enough was enough.
9. The adjudicator continued that she found credibility to be in issue in that her father, an elderly man, was going to be tortured if he did not give information about the appellant, but the appellant still fled and left him to face the authorities. Of course, that was, one supposes, a possible risk. On the other hand, the claimant's siblings had left, and it is not suggested that the father was tortured as a result of that. It seems to me that she may well have perfectly reasonably formed the view that the authorities, however unpleasant they were, would not be likely to do anything to her father.
10. Finally, in her determination the adjudicator in paragraph  58 stated:

"Because of the problems that I have with credibility in this case, I also wish to mention that the appellant travelled through many countries on her way to Turkey and did not claim asylum in any of these countries. These are not the actions of a genuine asylum seeker."

11. That, with respect, seems to me to be quite wrong. In a case where someone wants to get to the United Kingdom, understandably because members of the family are here already, and arranges to do that in the back of a lorry travelling across Europe, the fact that she does not claim in one of the countries through which the lorry travels en route cannot conceivably by itself throw doubt on whether she is indeed a genuine asylum seeker. That is a thoroughly bad point. Thus, as it seems to me, the adjudicator's reasons for her findings on credibility simply cannot stand.
12. The refusal of leave to appeal by the Vice President of the tribunal reads, so far as material is as follows:

"The adjudicator sets out reasons for her adverse credibility findings and she makes it plain that her findings were arrived at in the light of the objective material. Despite all the points that could be and have been made, the adjudicator found against the appellant."

13. I do not find that the reasons she gave were arguably flawed or in any way unfair. She was perfectly entitled to find as she did for the reasons she gave.
14. It seems to me, for the reasons that will now be obvious from what I have said about the adjudicator's conclusions, that simply cannot be so. It may be when the matter is reconsidered that it will be decided that there is now no well-founded fear of persecution. Considerable time has passed and the situation in Turkey has, to an extent, changed for the better. It may even be that if the matter is reheard, it will be decided that the claimant's account is not to be accepted in its entirety. That will be a matter for consideration when the case comes to be reconsidered. That it must be reconsidered I have no doubt.
15. Accordingly, I allow this claim and quash the decision of the Immigration Appeal Tribunal and remit for consideration as to whether permission to appeal should be granted in the light of the judgment I have given. That should be as soon as possible and the matter can then be considered on its merits by the Immigration Appeal Tribunal.
16. MR JUSTICE COLLINS: There are a number of tribunal decisions which are put in the bundle. I know that you are not responsible for that, so this is not a criticism of you, but the reality is that none of them are of any assistance. Cases decided by the tribunal which are fact specific really not any add anything, with respect. Mr Grieve seems to have put in cases which he has won before the tribunal. In one of mine that is in there I said in terms at the end that it was not to be regarded as an authority.
17. MR O'CONNOR: Yes.
18. MR JUSTICE COLLINS: The only case, in fact, on Turkey which perhaps can be regarded to some extent as helpful is the one cited by Mr Waite, because that is regarded as one which is being and has been followed. Can you put the word around?
19. MR O'CONNOR: I will pass your comments on.
20. MR JUSTICE COLLINS: To put in these sorts of cases as if they were authorities does not really help. There are a considerable number of Turkish cases where a dismissal of the appeal is upheld.
21. MR O'CONNOR: I understand and I will pass on the message. In terms of the transcript clearly, my Lord, we would all wish the Immigration Appeal Tribunal to consider this matter as soon as possible. It may be useful if we had an expedited transcript.
22. MR JUSTICE COLLINS: They will not need the transcript.
23. MR O'CONNOR: The only other application in this matter is for costs.
24. MR JUSTICE COLLINS: I take it you are legally aided.
25. MR O'CONNOR: We are, yes.
26. MR JUSTICE COLLINS: Costs and the necessary order. It used to be so much easier when you said taxation.
27. MR O'CONNOR: I think it is detailed assessment.
28. MR JUSTICE COLLINS: Thank you both.