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 WC2A 2LL
		8th February 2008

1. MR JUSTICE HOLMAN: This is an application for judicial review pursuant to permission granted by Ouseley J on 31st August 2006. It is relevant to mention that he granted permission at a time when the Secretary of State for the Home Department had not filed an Acknowledgment of Service and Summary Grounds of Defence, so the stance of the Secretary of State was not known. Further, he granted permission on the basis of a decision letter dated 2nd May 2006 (now at bundle page 82).
2. After permission had been granted, the proceedings were adjourned by consent for a period in order to enable the Secretary of State to reconsider his position. He did so, and gave his decision and reasoning in a further letter dated 7th August 2007 (now at bundle pages 280-283).
3. At the hearing today the argument from both counsel has centred on that decision letter of 7th August 2007. Realistically, if I consider that that decision letter contains an error of law, or is Wednesbury unreasonable, then clearly this application for judicial review must succeed. If, on the other hand, I consider that the decision letter of August 2007 does not contain any error of law, and the final decision and reasoning of the Secretary of State is not Wednesbury unreasonable, then this application for judicial review must fail, whatever may or may not have been said in the earlier decision letter of May 2006 and various other earlier documents.
4. The claimant, Metin Erdogan, is an asylum seeker from Turkey. His claim for asylum was refused and his appeal to an adjudicator was dismissed in a decision promulgated on 19th November 2003. I specifically mention and record that, in the bundle prepared for this hearing, a section of the adjudicator's reasons has been inadvertently omitted. I have the reasons down to line 4 of paragraph 8 (now at bundle page 122). The next page of the bundle, page 123, starts with the last two lines of a paragraph, presumably numbered 19, and then continues with paragraph 20 and onwards. In other words, there is a page or pages missing between pages 122 and 123 of the present bundle. It seems that neither Mr de Mello nor Miss Olley themselves spotted that omission from their own papers, for neither of them, nor anyone else in the courtroom, has the missing pages. In those circumstances, and for the purposes of this judgment, I can only assume that there is nothing of particular significance to this hearing and my decision today within the missing page or pages.
5. The essential history and chronology is helpfully summarised in a first skeleton argument in this case on behalf of the claimant. He was born in December 1976 and is now aged 31. He became involved with HADEP in 1995. HADEP is the Halkin Demokrasi Partisi (or the People's Democratic Party) which has been banned in Turkey since March 2003. In May 1995 he was detained for three days at the local police station in Elbistan, which is the town, village or area in Turkey in which he lived. In May 1995, shortly after that detention, he left Elbistan. In August 1996 he returned to Elbistan and was promptly detained by the authorities there and forced to complete his compulsory military service, which he did. In July 1999 he and some friends were attacked by a pro-government group. His own father and brother were detained and questioned about the whereabouts of the claimant. As a result, he fled in July 1999 to Istanbul. In October 1999 he left Turkey and made his way to the United Kingdom, which he entered clandestinely on 14th October 1999, and promptly claimed asylum. That claim for asylum was refused by the Secretary of State in October 2001. The claimant then appealed to the Immigration Appellate Authority but his appeal was dismissed by an adjudicator, Miss DA Thomas, on 19th November 2003, as I have already said.
6. The adjudicator summarised the claimant's case at paragraph 20 of her reasons (now bundle page 123). She said:

"He has been a HADEP supporter since he was a student. He has been detained in 1996 on account of his political involvement. When he returned to his home town for the funeral of the HADEP leader [viz in August 1996], he was further detained and forced to complete military service. He was tortured during these detentions. All returnees are identified upon return. The appellant's previous arrests and detentions would become known, along with his political opinion. Fascist groups are 'agents of persecution' because they have no respect for the police. As a Kurd he is at risk of harassment and torture in Turkey. He has suffered persecution in the past on account of his ethnicity. Tensions still exist in his home town. The appellant is a supporter of HADEP. It matters not whether he is low level. He will be at risk upon return... A number of specific references to the objective materials are made. I have noted and considered them all."

7. Between paragraphs 30 and 34 of her reasons (now at bundle pages 124 and 125) the adjudicator then made further reference to the "objective evidence". She said:

"30. The objective evidence shows that Turkey has a continuing poor human rights record, with arbitrary arrests and detentions prevalent. Prison conditions remain poor. Torture is administered to attract confessions...

"31. There is no evidence that Turkish nationals are persecuted purely on the basis that they have applied for asylum elsewhere... Returnees found to have left Turkey illegally or with incorrect documents will often be interrogated. Persons suspected of membership of anti-government political groups, eg militant Islamic groups or any left-wing radical organisation, [are] handed over to the anti-terrorist branch and thereafter torture or ill-treatment cannot be ruled out.

"32. Being Kurdish in itself does not constitute a higher risk of inhumane treatment. The individual and his activities abroad would need to be considered. Kurds who publicly or politically assert their ethnicity run the risk of harassment, mistreatment or prosecution... Supporters [of HADEP] are often subjected to harassment, arbitrary arrests and detention. In March 2003, HADEP was banned on the basis that it is accused of supporting the PKK. However, relatives of HADEP members are not ill-treated purely because of their family connections...

"34. Alevi Kurds [as this claimant is] [have] been subjected to some bureaucratic discrimination. The Alevi faith is not seen as a separate religion, and the Alevis are not an officially recognised religious minority. However, there is no evidence that the Turkish state persecutes Alevis on account of their religious beliefs."

8. The adjudicator then turned to her findings specifically in relation to this claimant. In a passage from paragraphs 36-41 on pages 125 and 126 she said as follows:

"36. I accept that the appellant was a supporter, not a member, of HADEP and that he has been since 1995.

"37. I accept that he was arrested in 1995 and detained for three days on suspicion of being a PKK supporter. I accept his evidence that he did not distribute food to the PKK and I believe that he was detained on that basis. He was released without charge. He then moved to Istanbul to avoid being accused further of PKK involvement.

"38. I accept that in 1996 the appellant returned to his home town to attend the funeral of the local leader of HADEP. I accept that he was stopped at a checkpoint and when it was discovered that he had not completed his military service, he was detained. He was then conscripted to do his military service. I accept that he found this difficult but on the evidence before me I am not satisfied that he was subjected to any form of systematic abuse whilst serving, which would amount to either persecution or mistreatment contrary to human rights.

"39. The appellant left Turkey on 7th October 1999. In July of that year, the political group, the Grey Wolves, attacked him and his friends. The police were called. He believes that the police support the Grey Wolves and they took action against his friends and other HADEP supporters instead. Many of his friends were detained and beaten. His own family was affected in that his brother and father were taken for questioning. He has been told that the police have enquired about his whereabouts since. One of his friends has been sentenced to life imprisonment. It is not clear on what basis this was done. The appellant fled because he believed that the police still suspected him of both PKK and HADEP involvement. Having considered the appellant's evidence and the objective evidence, I am not satisfied that the appellant continues to be sought by the Turkish authorities. I accept that his relatives were questioned initially but were subsequently released and appear not to have experienced any further difficulties since 1999. They continue to live in their home town. No further demands beyond the original questioning have been made upon them. It is not clear from the appellant's evidence what his direct involvement was with the incident and I am not satisfied that he is being sought by the authorities for having played any particular role in the same.

"40. I have considered the appellant's claim to have a well-founded fear of persecution on account of his Alevi religion. However, there is no evidence of any particular incident or course of mistreatment that the appellant has suffered purely on the basis of his religion. It is recognised in the objective evidence that whilst Alevis do suffer some form of discrimination, they are not persecuted by the State purely on the basis of their religion. I am not satisfied that the appellant was persecuted on account of his being Alevi.

"41. In considering the cumulative effect of the appellant's experiences, I have come to the conclusion that they do not give rise to a well-founded fear of persecution in Turkey today. I accept that upon return the appellant will be questioned. I accept that his record of arrest on suspicion of PKK involvement in 1995 will become known. I am satisfied, however, that this occurred sufficiently long ago so as not to give rise to adverse interests on the authorities' behalf. The appellant had been arrested and detained for the relatively short period of three days. He was released without charge and without conditions. This reflects the low level of interest that he aroused at the time, which I consider to be even lower now. The appellant's detention in 1996 will be noted. I believe that this focused more on his failure to complete military service than on his support for HADEP. He was subsequently ordered to do military service, which he did. He was released again without charge or conditions. He left military service in early 1999 and did not feel the need then to seek international protection then. As to the events of July 1999, I do not accept that the appellant is currently being sought for his involvement. There are no arrest warrants in existence for him and no evidence that his home or family is under surveillance or frequent visits from the police. He was able to remain in Istanbul until October 1999, without difficulties. His involvement with HADEP is low level and I do not accept that he will be considered a political separatist."

9. In relation to paragraph 39 within the above quotation, it seems probable that the reference to "his relatives" in the sentence beginning "I accept that his relatives were questioned initially but were subsequently released..." is a reference back to his brother and father, who had been referred to a few sentences earlier in the same paragraph. The significance is that nowhere in the quoted passage, nor indeed in the reasons of the adjudicator altogether (unless within the missing paragraphs to which I have referred), did the adjudicator make any reference to any cousins or uncles of the claimant, to whom I will shortly refer.
10. The overall conclusion of the adjudicator on the asylum claim is at paragraph 43 (now at bundle page 127):

"43. On the facts as established, I am not satisfied that the appellant is of adverse interest to the Turkish authorities or at risk of future persecution by non-state agents. I am not satisfied that his detention for assisting the PKK as long ago as 1995 will now put him at risk. I am not satisfied that the July 1999 incident will have led to him being recorded as a wanted person. I am not satisfied that his low-level support for HADEP will even have been recorded. I am satisfied that his Alevi background does not give rise to a risk of persecution. In his case I therefore find that the appellant has failed to discharge the burden of proof of having a well-founded fear of persecution for a Convention reason in Turkey and I am satisfied that his return to Turkey would not cause the United Kingdom to be in breach of the 1951 Convention."

11. In August 2004, solicitors on behalf of the claimant made further representations to the Secretary of State, which, they submitted, and continue to submit, amount to a "fresh claim" for the purpose of Rule 353 of the Immigration Rules. Their letter is now at bundle page 117. Within that letter they said:

"... the adjudicator failed to accept that our client would be at risk on return to Turkey. We believe that in light of the new information presented here that this is not the case. In support of our position we make reference to the number of close family members that our client has who have been granted refugee status in the United Kingdom."

12. They then referred to material relating to six named relatives (all with the surname Erdogan) of this claimant, but they referred in particular to a cousin, Mutlu Erdogan, and to an uncle, Ibrahim Erdogan. During the course of his submissions today Mr de Mello has indeed focused upon these two relatives, Mutlu and Ibrahim Erdogan, in particular. A claim by the cousin Mutlu Erdogan for asylum here was successful in May 2002; and a claim by the uncle, Ibrahim Erdogan, was successful in October 2002. The solicitors' letter notes, and Miss Olley has not today suggested otherwise, that this claimant and his cousin Mutlu actually used to reside together, at any rate for some period of time, in Turkey and, I infer, in their home area of Elbistan.
13. After quoting some passages from the determinations of adjudicators in relation to Mutlu and Ibrahim, the solicitors for the claimant continue in their letter of August 2004 (now reading from page 118 of the bundle):

"Therefore as it is accepted by the Home Office that failed asylum seekers that are returned to Turkey are questioned on arrival at Istanbul or other airports by the security staff, it is [quite] clear when being questioned the security forces."

(That does not seem to make sense).

"During the questioning the security forces will become aware not only of our client's past activities with HADEP, including his detentions, but also those of his family members."

14. The letter then continues with the following sentence upon which Mr de Mello places great reliance, for it is at the core of his case today:

"As our client is clearly from a politically-orientated family, who have been of interest to the authorities for over 10 years, he will be detained and persecuted."

15. It is the representations and asserted "fresh claim" made in that letter which the Secretary of State ultimately addressed in his decision letter of 7th August 2007. The key paragraphs of that letter are paragraphs 6 and 7 (bundle page 281) and 11-13 (bundle page 282). It is convenient first to refer to paragraphs 11-13 for it is in those paragraphs that the Secretary of State addresses the test which he must apply when considering whether or not further submissions "amount to a fresh claim". In paragraph 11 of the letter he set out in summary, but almost verbatim, and accurately, paragraph 353 of the Immigration Rules itself. At paragraph 12 he said:

"Full and careful consideration has been given to the submissions you have made on behalf of your client together with all the evidence put forward previously. However, we are not prepared to reverse the decision of 19th November 2003 upheld by the independent adjudicator on 2nd November 2003."

16. Clearly that second sentence is somewhat wayward but the clear reference is to the decision of the adjudicator, Miss Thomas, which is actually dated 2nd November 2003 and was promulgated on 19th November 2003. In short, the Secretary of State was saying that, even after full and careful consideration of the submissions, taken together with all the evidence put forward previously, he (the Secretary of State) was not prepared to depart from the decision that the independent adjudicator had reached. The letter continued at paragraph 13 by saying:

"It has been considered that the points you have raised in your past submissions, when taken with the material previously considered, would not create a realistic prospect of success. Therefore, it is concluded that your representations do not amount to a fresh claim."

17. My attention has appropriately been drawn to the now celebrated and frequently cited passages in paragraphs 7 and 11 of the judgment of Buxton LJ in WM (DRC) v the Secretary of State for the Home Department, [2006] EWCA Civ 1495. Buxton LJ said:

"7. The rule [viz Rule 353] only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second... the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution."

18. At paragraph 11 Buxton LJ described the matters that a court must address when reviewing a decision of the Secretary of State as to whether a fresh claim exists. He said:

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: See paragraph 7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

19. In the present case it does seem to me, and Mr de Mello has not really contended otherwise, that paragraph 13 of the letter of the Secretary of State does address and answer the correct question. It is true that in that paragraph the Secretary of State does not pose the question, but he does provide an answer to it in the language of the correct test. He says that in his view:

"... the points you have raised in your past submissions [viz the points made in the letter of 6th August 2004 and in certain later correspondence], when taken with the material previously considered [viz in particular by the adjudicator], would not create a realistic prospect of success."

20. It follows that, in my view, there is no error of law in the approach of the Secretary of State in his final decision letter of August 2007 and I can only interfere with the decision of the Secretary of State if, despite asking the correct question, his answer to that question is Wednesbury unreasonable, as Buxton LJ makes plain in paragraphs 8 and 9 of his judgment in WM (DRC). So I turn to the core of the decision letter of August 2007; namely, paragraphs 6 and 7. At paragraph 6 (now bundle page 281) the Secretary of State quoted in full paragraph 43 of the adjudicator's reasons, which I have myself already quoted, in which the adjudicator summarised her overall conclusion on the asylum claim. In paragraph 6 the Secretary of State continued:

"Therefore, as your client had stated that he was involved with food and [assisting] the group, it is considered that your client's answers related to this group shows that your client was not in full support nor actively involved to the extent that this would create an interest from the authorities."

21. The next sentence is crucially relied upon by Mr de Mello:

"As your client has compared his case with his cousin Mutlu Erdogan and his uncle Ibrahim Erdogan their cases are of different circumstances as they were found to be fully involved working for HADEP. At this point I would like to remind you that each case is considered on its own merit."

22. Mr de Mello effectively submits that those two sentences at the end of paragraph 6 missed the point of the fresh submissions and indeed, despite what Ouseley J had observed when he granted permission, fell into exactly the same trap into which the Secretary of State had previously fallen. Mr de Mello submits that the exercise put forward by and on behalf of the claimant is not one of "comparing his case" with the cases of his cousin Mutlu and his uncle Ibrahim. Certainly, if their cases are merely "compared", then the degree of involvement of Mutlu and Ibrahim in HADEP was or may have been very considerably greater than the relatively low-level involvement (as found by the adjudicator) of this claimant. Rather, submits the claimant by his solicitors' letter of August 2004 and by Mr de Mello on his behalf today, it is the linkage by the relationship between this claimant and his cousin and uncle, when coupled with his own, albeit relatively lower level, involvement with HADEP, which raises the risk. The same point or distinction emerges from paragraph 2 of the observations of Ouseley J when he granted permission. He said then (referring to the earlier decision letter of May 2006):

"The claim is arguable on the basis that the decision letter of 2nd May 2006 does not deal with the assertion that the current information on Turkey and the position of the other family members would put the claimant at risk. This is a different point from the assertion that because some other family members with like claims have succeeded in their asylum or ECHR claims, this claimant has a fresh claim; indeed the other decisions appear to have been available at the time of this claimant's appeal but have not been referred to by the claimant in his appeal."

23. So the argument on this aspect of this case is not that, by his own activities, this claimant is as much at risk as his uncle and cousin. Rather, the argument is that it is a combination of his own, albeit lower level, activities and the relationship which the authorities would inevitably discover between himself and his cousin and uncle, which firmly identifies him as a member of "a politically-orientated family" and leads to the risk of detention and persecution.
24. I accept the submission and argument of Mr de Mello that in paragraph 6 of his letter the Secretary of State has indeed missed the point, despite the point having been flagged up by Ouseley J a year before. However, that is not the end of the matter. The question still arises whether the point that is made (namely, that the claimant is at risk of persecution because he would be identified as belonging to "a politically orientated family") is a valid one and of substance.
25. The assertion that he is at enhanced risk because of relationship with his cousin and uncle is based by Mr de Mello on certain objective material. Some of this objective material had indeed been referred to by the adjudicator in her reasons, and it will be recalled from paragraph 32 of her reasons quoted above that the adjudicator herself said:

"However, relatives of HADEP members are not ill-treated purely because of their family connections.

26. In paragraph 7 of his decision letter of August 2007 the Secretary of State also referred to some of the objective material. He quoted the Home Office Country Information Report on Turkey, and in particular a reference within that Country Information Report to a report in 2002 from the Netherlands Ministry of Foreign Affairs. The quote within paragraph 7 of the letter is as follows:

"The Netherlands Ministry of Foreign Affairs 2002 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.'"

27. Today Miss Olley has appropriately pointed out that the quotation in paragraph 7 of the decision letter is somewhat truncated. She says, I am sure correctly, that the full quote in paragraph 19.25 of the March 2007 COIR contains the sentence that I have just quoted but continues:

"In certain cases, however, it cannot be ruled out that, for example, first- or second-degree relatives of HADEP members who are active at local level are closely watched by the State because of their relatives' activities."

28. Miss Olley submits that even though some interest by the authorities, based on the activities of "first- or second-degree relatives", which the uncle and cousin plainly are, cannot be ruled out, being "closely watched" does not of itself amount to persecution. Further, she submits that on the facts of the particular case the relatives in question, Mutlu and Ibrahim, no longer engage in any activities in Turkey, nor have they done for several years, because they are in the United Kingdom and not in Turkey.
29. Based on his own quotation within paragraph 7 of his letter, the Secretary of State himself continued and concluded:

"Based on this information the Secretary of State is fully aware that if your client is returned to Turkey, he would not be at risk of persecution due to the status of other family members."

30. Miss Olley submits that, whether on the basis of the partial quotation within paragraph 7 of the letter or on the basis of the fuller passage to which she has drawn my attention, that conclusion by the Secretary of State is amply justified and certainly cannot be characterised as irrational.
31. For his part, Mr de Mello draws my attention also to the Operational Guidance Note on Turkey issued by the Home Office in January 2006 (now at bundle page 150 and onwards). Paragraph 3.6.16 of the OGN makes reference to the authority of IK, to which I will later refer, and summarises some of the conclusions of that authority and the authority of A (Turkey) in a number of bullet points. They include: Consideration of whether the appellant has family connections with a separatist organisation such as HADEP; how long a period elapsed between the appellant's last arrest and detention and his or her departure from Turkey (which in the present case was short); Kurdish ethnicity; Alevi faith; and the lack of a current, up-to-date Turkish passport (which this claimant now lacks). Mr de Mello then particularly emphasises and places reliance on paragraphs 3.7.3 and 3.7.5 of the OGN under a heading "Family connections with Kurdish, left-wing or Islamic terrorist groups or political parties". The OGN notes as follows:

"... relatives of members of illegal organisations sometimes faced harassment, such as repeated questioning by the police, intimidation, verbal assaults, beating, detention and arrest. The level of harassment would often depend on the degree of kinship and on the rank of the respective relative in the PKK... Any person having a relative within the PKK should expect some attention from the authorities without becoming automatically subject to harassment or persecution.

"3.7.4 Countless people in Turkey have one or more relatives in the PKK, left-wing or Islamic terrorist groups without having any significant problems with the authorities as a result. If the authorities are convinced that relatives of the suspected PKK members do not have any links to the PKK they are not persecuted."

32. Pausing there, Mr de Mello stresses that that requires somebody in the position of the claimant "to convince" the authorities that although related to a suspected PKK member he himself "does not have any links to the PKK". Mr de Mello submits that it would be difficult for this claimant to convince the authorities of that in view of his own, albeit low-level, involvement, as described by the adjudicator. The OGN continues:

"3.7.5 Relatives of members of Kurdish political parties need not fear persecution by the Turkish authorities solely because one or more of their relatives is a member of any party. However, in certain cases, relatives of HADEP... members who are active at local level are closely watched by the State because of their relatives' activities."

33. At paragraph 3.7.8, albeit in the context of internal relocation, the OGN comments that:

"Simply sharing the same surname as a relation who is a known or suspected member of a separatist group may give rise to adverse interest from the authorities in a localised nature where the claimant and family may be seen as troublemakers."

34. As well as relying on this objective material, Mr de Mello relies on the now well-known case of The Secretary of State for the Home Department re IK (Turkey CG) [2004] UKIAT 00312. That revised country guidance decision was notified and made public in December 2004, which was over a year after the decision of the adjudicator in the present case.
35. Mr de Mello has drawn my attention to a number of passages to do with record keeping and the degree of risk that this claimant would show up on some record at the airport of arrival in Turkey if he is removed back there, but it does not seem to me necessary to go into that part of IK in great detail in the present case. The adjudicator herself accepted in paragraph 41 of her reasons that upon return the claimant, as a returnee without an up-to-date passport, would be questioned. She continued:

"I accept that his record of arrest on suspicion of PKK involvement in 1995 will become known."

36. So the adjudicator herself proceeded on the basis that upon return to Turkey the record and history of this claimant would be known and might form the basis of questioning. Further, it seems to me clear that if his surname, Erdogan, was run through a computer record, then even if he himself does not currently appear within the computerised records the names of his cousin and uncle with the same surname would clearly do so. Any authorities questioning him would rapidly spot the possible connection between him and his cousin Mutlu and uncle Ibrahim and would be liable to ask him about it. As IK makes clear, one has to assume that when asked questions he would have to give honest answers, so I fully accept that in no time at all the connection and relationship between him and his cousin and uncle would become known to any questioners.
37. At the end of the decision in IK there is a summary of generic conclusions, and Mr de Mello in particular focused on the following numbered paragraphs:

"5. If a person is held for questioning either in the airport police station after arrival or subsequently elsewhere in Turkey and the situation justifies it, then some additional inquiry could be made of the authorities in his local area about him, where more extensive records may be kept either manually or on computer...

"6. If there is a material entry in the GBTS or in the border control information, or if a returnee is travelling on a one-way emergency travel document, then there is a reasonable likelihood that he will be identifiable as a failed asylum seeker and could be sent to the airport police station for further investigation...

"8. The escalation of the violence following the ending of the PKK ceasefire reinforces our view that the risk to a Kurdish returnee of ill-treatment by the authorities may be greater if his home area is in an area of conflict in Turkey than it would be elsewhere..."

38. In this regard Mr de Mello draws attention to paragraph 4 of the determination and reasons of the adjudicator in the asylum claim of Mutlu Erdogan (now at bundle page 130), where that adjudicator said:

"He comes from Elbistan in Karananmaras, a province notorious for conflict between Turks and Kurds."

So Mr de Mello says, and I accept, that there is evidence within the overall context of the present case that this claimant does come from a home area which "is in an area of conflict in Turkey".

39. Returning to the generic summary:

"12. The proper course in assessing the risk for a returnee is normally to decide first whether he has a well-founded fear of persecution in his home area based upon a case-sensitive assessment of the facts in the context of an analysis of the risk factors described in A (Turkey). If he does not then he is unlikely to be at any real risk anywhere in Turkey.

"13. The risk to a specific individual in most circumstances will be at its highest in his home area for a variety of reasons, and particularly if it is located in the areas of conflict in the south and east of Turkey."

40. Mr de Mello's central submission is that the guidance given in IK, and in particular in the passages that I have quoted, when combined with the objective evidence in the OGN, and in particular the passages I have quoted, justifies that there would be an inquiry about the activities of the claimant in his home town. The inquiry would rapidly identify him as being related to Mutlu and Ibrahim. The inquiry would seek to find out the current whereabouts of those relatives and whether they had themselves been granted asylum. In honest answer to questioning, this claimant would have to say that they had been. The authorities would be likely soon to learn that this claimant had indeed shared a house with Mutlu in their home town of Elbistan and it would not be long before the authorities did indeed come to the view that this claimant himself was somebody from a politically-orientated family who had himself engaged in activities on behalf of HADEP. Persecution might well follow.
41. Mr de Mello once again emphasised that the critical question in this case, and the one which the Secretary of State should have considered, is not the circumstances of the cousin and uncle (their level of involvement in HADEP was different). Rather it was how the authorities would view and treat this complainant once they made the connection between him and his relatives.
42. For her part, Miss Olley submits that "the argument is based on a supposition made in a vacuum". She submits that nothing in IK really changed anything of relevance to this particular case. IK refers to, but does not give any particular prominence to, risk arising from a connection with relatives. She submits that that is appropriately dealt with in passages in the OGN, which I have already cited, and that, at worst, there is a risk of the claimant being "watched" because of the relationship. Most specifically, she directs me to paragraph 78 of the decision in IK, which is summarised in paragraph 12 of their generic conclusions, but which more fully says as follows:

"On this basis, we consider that the starting point in any enquiry into risk on return should normally begin, not with the airport on return but with whether the claimant would be at any real risk of persecution or a breach of Article 3 in his home area as a consequence of his material history there. If the answer to that is 'no', then the claim cannot normally succeed, unless of course the risk arises from or is aggravated by other factors, such as his material activities abroad or in other parts of Turkey. Any real risk would arise only from a person's material history... and this history will in most normal circumstances be at its most extensive in the individual's home area."

43. She stresses that in the present case there have been no "material activities abroad or in other parts of Turkey". She returns to the findings of the adjudicator herself and submits that those show that even in his home area the claimant's activities were a very low level and he would not now be considered a political separatist. So she strongly submits that one should indeed take as the starting point risks in the claimant's home area and that, on the finding of the adjudicator, there is no real risk of persecution in his home area, and nothing has altered to change that. Even if he is detained and questioned at the airport of return, the questioners would make inquiries of his home area and soon learn that he himself is of no real interest to them. Mr de Mello meets that by saying that the "factors" set out in paragraph 78, as quoted above, are merely examples and that in the present case there is a factor that would "aggravate" the risk to him. That factor is that he would be identified as being connected to his cousin and uncle and as coming from a politically-orientated family.
44. As with all these cases, the court itself has to give very anxious consideration. Even on judicial review, with the circumscribed Wednesbury test, decision making is not at all easy. I do have to remind myself that once I am satisfied, as I am, that the Secretary of State has addressed the right question, the test for a successful challenge on judicial review must be the Wednesbury test. I am not sitting on appeal from the Secretary of State, still less making my own judgment as to whether or not, considering the matter afresh myself, I would conclude that there was or was not "a realistic prospect of success". The question for me is whether the decision of the Secretary of State that the new submissions do not create a realistic prospect of success is a decision that was and is reasonably open to him. It is only if I am satisfied that he could not have concluded that the new representations do not create a realistic prospect of success that I am entitled to interfere.
45. It seems to me, judged by that test and approach, that I cannot interfere with the decision of the Secretary of State in this case. It seems to me that in his August decision letter, although at paragraph 6 he missed the point, he has, overall, considered, by reference to the objective material, whether there is a realistic prospect of an adjudicator thinking that the fact of relationship to his cousin and uncle, coupled with the claimant's own previous history, does put him at risk of persecution. It seems to me, viewing all the objective evidence in the round, together with the approach described in IK, and in particular in paragraph 78, that it is an entirely tenable view for the Secretary of State that even the new points do not create a realistic prospect of success of a fresh claim. All in all, it seems to me that the position of this claimant really remains as described by the adjudicator in her decision of November 2003. He is not somebody who is at risk of persecution if he is now returned to Turkey. For those reasons, despite the sustained argument of Mr de Mello this morning, for which I was truly grateful, this application for judicial review will be dismissed.
46. Is there anything else I need say or do, Miss Olley?
47. MISS OLLEY: My Lord, I do not have any instructions to seek costs on behalf of the Secretary of State, so I do not have any consequential applications.
48. MR JUSTICE HOLMAN: So it is a one-liner, is it, for the associate, that the application is dismissed?
49. MISS OLLEY: Yes, my Lord. I am grateful for the judgment.
50. MR DE MELLO: My Lord, the claimant is legally aided. May I have the normal --
51. MR JUSTICE HOLMAN: You most certainly may, and I imagine the associate will know the appropriate normal form of words.
52. MR DE MELLO: I am grateful.
53. MR JUSTICE HOLMAN: Is there anything else that you wish to raise with me, Mr de Mello?
54. MR DE MELLO: My Lord, as a matter of course I ought to ask for permission to appeal.
55. MR JUSTICE HOLMAN: I do not know that I am very receptive to applications made as a matter of course. You would have to identify where you say that I have myself made an error of law or in some way made an error that makes my decision --
56. MR DE MELLO: Certainly. My Lord, the best I could say is this, that in light of the adjudicators' findings in the cases of Mutlu and Ibrahim -- that they would be questioned and they would be mistreated -- there is sufficient to infer that that same level of treatment awaits this claimant. And the assertion is not made in a vacuum, as suggested by my learned friend. My Lord, I cannot improve on that. It is a submission I make half-heartedly, but those are my instructions.
57. MR JUSTICE HOLMAN: Well, I am afraid it is a submission which I am going to refuse wholeheartly. I do not myself have one of the forms present. I do not know if you do.
58. MR DE MELLO: My Lord, just one other thing as a matter of formality. Whilst your Lordship was giving judgment, those instructing me faxed to the court the missing pages, which I will hand over to my learned friend. It does not alter anything but I will hand over one to be inserted into your bundle if I may.
59. MR JUSTICE HOLMAN: Well, all I am going to do with my bundle is hand it to the shorthand writer.
60. MR DE MELLO: Certainly.
61. MR JUSTICE HOLMAN: I am not now going to read it in. I have dealt with it. They were missing when I dealt with it. If either of you, on a glance at them, think that they fundamentally affect anything I have said or done, you should have an opportunity to raise it, but subject to that I am not interested in them.
62. MR DE MELLO: No, that is absolutely correct. (Handed).
63. MR JUSTICE HOLMAN: Well, this may be a hostage of fortune, Mr de Mello, but my reasons for refusing you permission to appeal are: Counsel for the claimant has not identified any error of law in the judgment, and it seems to me that the proposed appeal has no prospect of success. That is my view. I may or may not live to rue those words.
64. MR DE MELLO: My Lord, I am grateful.
65. MR JUSTICE HOLMAN: I am extremely grateful. I truly greatly appreciated your argument this morning, Mr de Mello, and of course that of Miss Olley. Thank you both very much.

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