Scottish Court of Session Decisions

"An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:-

"An application which does not meet the criteria set out in paragraph 334 will be refused."

"30(1) This paragraph shall have effect in relation to applications under section 103A(1) or for permission under section 103A(4)(b) made -

(a) during the period beginning with commencement and ending with such date as may be appointed by order of the Lord Chancellor, and

(b) during any such later period as may be appointed by order of the Lord Chancellor.

(2) An application in relation to which this paragraph has effect shall be considered by a member of the Asylum and Immigration Tribunal (in accordance with arrangements under paragraph 8(1) of Schedule 4 to the Nationality, Immigration and Asylum Act 2002 (inserted by Schedule 1 above)).
(3) For the purposes of sub-paragraph (2) -

(a) references in section 103A to the appropriate court shall be taken as references to the member of the Tribunal who is considering the application or who is to consider the application,

(b) rules of court made for the purpose of section 103A(4)(a) in relation to the court to which an application is made shall have effect in relation to the application despite the fact that it is considered outside the appropriate court, and

(c) section 103A(6) shall be subject to sub-paragraph (5) below.

(4) Where a member of the Tribunal considers an application under section 103A(1) or 103A(4)(b) by virtue of this paragraph -

(a) he may make an order under section 103A(1) or grant permission under section 103A(4)(b), and

(b) if he does not propose to make an order or grant permission, he shall notify the appropriate court and the applicant."

the village of Keklikouk in the district of Gursun in central Anatolia. He attended school until he was 11 and then helped with the family farm. He is the youngest of seven children. He states he is an Alevi and a Kurd. It appears he was married in 1999 and his daughter was born at the end of that same year. He did his military service in 1993-4.

5. In his last, Supplemental Statement, the Appellant states that in 1994 he and his older brother, Abbas and his sister-in-law were out grazing their sheep when they were awoken in their tent by someone shouting and gunshots. The Appellant reports that he and his sister-in-law fled but his brother 'was captured'. He recounts that after an hour they went back and found his brother on the ground 'with a wound to his forehead'. His brother then went to the city of Adama and three years later, in 1998, left Turkey for the United Kingdom where, evidently, they have claimed and been granted refugee status.

6. The Appellant states that in 1997, perhaps in May or June, he and other young men in his Kurdish village were asked to become village guards. All of them, some 20 or so, refused to do so, and the Appellant reports they were taken to the gendarme station, presumably in Gursun, where he was kicked, slapped and punched and abused for refusing to become a village guard. The Appellant states his village was not forcibly evacuated as a result of his general refusal, but that a number of people voluntarily fled the area.

7. The Appellant states his next detention occurred on 21 March 1998 when he, along with many others, was celebrating Newroz and shouting pro-Kurdish slogans. He states he and some dozen others were arrested out of the 600 or 700 people celebrating and taken again to the gendarme station. He states he was detained for three days during which he suffered the worst abuse.

8. He says he was blindfolded and his hands and legs bound then brought in for questioning, still blindfolded. He was again confronted as to his reasons for refusing to be a village guard and when he did not reply, he reports he had his hands tied behind his back, he was pushed to the ground and beaten into unconsciousness. The Appellant reports he was then sprayed with high pressure water, his hands untied and taken into another room where there was an electric chair. He states he and the others were threatened that they would be put in the chair if they did not answer the questions and were told that they would either become village guards or be electrocuted. The Appellant stated he could not do this because he was Kurdish and they could not 'treat people this way'. He reports that when they attempted to force him into the chair he panicked. In oral evidence the interpreter stated the word the Appellant was using literally meant 'I am losing control of myself' and could be translated as either that he had 'passed out' or suffered a fit or seizure. He states he started to choke, and his tormentors took him and put him into another room where he was held overnight and released the following evening. Although he did not go to see a doctor, because, he states, he feared the doctors would report incidents of torture to the police he was treated at home for his injuries over four days. The police, when they released him 'told me that they would be watching me'.

9. The next incident the Appellant recounts occurred on 18 April 1999, the day of the general election in Turkey. The Appellant reports that although not a member, he had supported and done promotional work for HADEP. He states he had been putting up posters. The village had a population of 250-260 people, and, the Appellant reports, HADEP got 130 votes. The Appellant reports, however, the antiterrorist team had been threatening the villagers that they should not vote for HADEP or there would be problems. When the villagers went to vote they were collected in the school and the authorities took some dozen of the villagers, including the Appellant, back to Gursun gendarme station. The Appellant states he was again beaten and obliged to return every two weeks to report to the gendarme station. In the additional witness statement of 29 August 2002 the Appellant states that on this occasion, after having been beaten: 'I was forced to become a village guard'. He recounts that when he went in to report he was insulted regularly. He states he reported every two weeks for eight or nine months 'until 2000'. If this occurred in April 1999 this must have been through the end of the year or just into January 2000.

10. The next event the Appellant recounts occurred on 1 August 2000 when he and his older brother, Yuksel, were in the countryside doing farming activities. He reports the antiterrorist team detained them, tied them up and blindfolded them and took them to the Gursun gendarme station. There they were untied and told to take their clothes off. They were sworn at by the gendarmes and perhaps beaten and released at the end of the day. In his additional statement the appellant states at this time the gendarmes were coming to his village regularly on patrol because the next village to theirs was Turkish, all of whom had become village guards 'After a boy joined the PKK', which resulted in increased pressure on them.

11. The Appellant reports that in April 2001 he was at a HADEP meeting in Kayseri. On the way back he was stopped by police. ID cards were checked, and posters for HADEP seen in the car. The police then took them to Gursun gendarme station where, the Appellant reports, three police officers in plain clothes came to the station, questioned the Appellant and warned him that before they began to torture him he should tell them about his dealings with HADEP. He reports he told them he did nothing, and he was repeatedly punched in the chest. One of the men left and the two others kicked and beat him. He states the next day two other plain clothes police came to the room and threatened him about telling anyone of the beatings and warned him, as they released him, 'that I would be put into the prison sooner or later'.

12. The Appellant reports a week later the village headman went to the Gursun gendarme station and saw the appellant's file there with a number of others. He asked about it and was told by the police, who began to swear, 'that the file belonged to dishonest people'. The Muhktar returned and told the Appellant's father about this and warned that the Appellant would be in danger if he were to stay.

13. The Appellant states he took his wife and child to Kayseri for a short period. He called home and was told by his mother the army was looking for him. He then went to Istanbul for one day and, with the aid of an agent, on from there to the United Kingdom. He states he paid 10,000 deutschmarks for his passage. The Appellant reports, again in his additional statement, that his brother, Yuksel, has advised him there is an outstanding arrest warrant for him. He also reports that his brother had been arrested for two days and that the gendarmes 'were asking about me'."

"15. The first determination which falls to me to make is whether I find the Appellant credible and his evidence reliable. Other than the background bundle, the Appellant has produced no evidence to directly support his allegations, and his claim rests, therefore, entirely upon his fundamental credibility. In assessing that, I have read and reread the various statements he has given and considered them for consistency and inconsistency. I have also carefully considered them in terms of the accounts he has given at various times. I have viewed his evidence as a whole, 'in the round', and also broken it down into constituent elements, asking for each whether he has proved them or not. I have also evaluated his evidence in light of common sense and common experience for fundamental plausibility. I have, finally, carefully considered his evidence in light of the background information. I have the CIPU Report, the US State Department Report and the Amnesty International Report 'Turkey: An end to torture and impunity is overdue'. Importantly in this case, I have also sought for a credible core of reliable evidence shorn of exaggeration and fabrication.

16. I am obliged to conclude that I accept and reject the Appellant's evidence in almost equal measure. By this, I mean that I am prepared to accept the Appellant is who he states he is, a young Alevi Kurd from central Anatolia who has had a history of minor confrontations with the Turkish authorities. I am not, however, prepared to accept that he has proved it reasonably likely he has suffered the extensive mistreatment - and its consequences - which he has recounted. I have been unable to accept the appellant's account in its entirety because of a number of serious concerns which his evidence raises.

17. First of all, he did not take the opportunity to affirmatively make his case to the Home Office at the initial stage. Next, he has given a lengthy three and a half page, very well prepared, narrative account of his claim dated 1 May 2002, approximately a year after he arrived there. As noted above, that was reissued with additional material taken from him on 29 August 2002, and, finally, a Supplemental Statement was tendered at the hearing running to about one page. There are very troubling omissions from the first witness statement. Specifically, in the additional one of August, the Appellant reported, for the first time, that in April 1999 he was forced to become a village guard. Given the fact that he had been allegedly beaten and held for two days in 1997 for refusal to do that, threatened with electrocution for refusing to do that in 1998, and had stated that many of the village fled because of the refusal to become village guards, it seems fundamentally implausible to me such a fact would have escaped his recollection when giving his initial statement. Next, in that August edition, the Appellant now states he has been calling his family every ten days and has learnt there is an outstanding arrest warrant for him and that his brother has been arrested as well. This statement is made a matter of three months after the first one and I do not find it plausible the Appellant had only begun telephoning his family in the intervening three months and did not have this information available to him when the first statement was prepared a year after his arrival. Viewed in context, this leaves one with the clear indication the Appellant has sought to expand his case to lend it more credibility and urgency. Equally troubling is the Supplemental Statement in which the Appellant, for the first time, mentions he was involved in a striking event in 1995 in which he and his sister-in-law were chased away and his brother evidently seriously wounded. It will be remembered the Appellant's brother left Turkey in 1998 and has claimed asylum in the United Kingdom. I simply do not find it credible the Appellant could have forgotten such a memorable event in his life and that of his family, only recalling it immediately prior to the hearing. I note, too, there is no supporting witness statement from that brother or any confirmation of the allegation he has been granted Indefinite Leave to Remain, nor of the timing of that.

18. I have also looked at the Appellant's account overall. He has effectively recounted six years of problems, but problems which occur a little less than once a year. They all involved the same personnel at the Gursun gendarme station, except the 1995 incident with his brother, and all follow a similar pattern. One might well have thought the appellant could properly have fled in March 1998 after being threatened with electrocution, but, of course, he stayed on for over three years, marrying and starting his family. A year later he says he was detained for putting up posters and voting for HADEP. I note in paragraph 4.11 of the CIPU Report that HADEP did very well in municipal elections at that time. It seems to me fundamentally unlikely that the Turkish authorities would have rounded up the entire village electorate into a school after the election and then taken a dozen of them to the station as the Appellant recounts, to be beaten and released after five or six hours. It is all the more incredible that the Appellant should, on this occasion, suddenly agree to become a village guard while there. Nor do I find it fundamentally plausible the Appellant was required to report back to the Gursun gendarme station every two weeks, especially if he were now a village guard. He states he was reviled there for being a Kurd, but he does not remember for how long this went on, nor is there any reason given for why it should have stopped. Viewed as a whole, the entire incident simply lacks fundamental credibility. While it is clear from the background information, the Turkish authorities have targeted HADEP officials and certainly been relentlessly hostile to it and its policies, I find no support for the premise that an entire village would be punished in this manner for voting in favour of HADEP.

19. The Appellant reports in August 2000 he and his older brother were detained in the countryside and brought, again, to Gursun. It must be remembered he is, or may be, a village guard now. Again they were harassed and reviled and released. Obviously the Appellant did not suffer unduly from this event as eight months later he was, again, actively involved supporting HADEP when he was stopped by the police returning from a meeting. With reference to the background information, I think it is very possible the police would have been suspicious, might have harassed the Appellant and seized the posters, but I do not find it reasonably likely the Appellant would have been 'worked over' by two sets of special plain clothes police for no apparent reason, to no apparent end, and then simply be released once again. It must be remembered too, the Appellant does not decide to flee at this time but only when the village headman comes back with a report that he has seen the file of the Appellant along with others on a police desk and that these were identified as 'dishonest people'. Viewed in context, the Muhktar's opinion is nothing more than an obvious assessment of the Appellant's situation since he at first refused to be a village guard in 1997. It is certainly not a 'watershed event' which, if I were to accept the Appellant's past history, would suddenly have precipitated his flight with his wife and young daughter.

20. I am also concerned by the report of continued interest in him. In his first witness statement he said that he called home and his mother said not to continue the call because the army was looking for him. The Appellant has made it clear there was nothing in his immediate past history which would warrant the army to come searching for him. If I were to accept his evidence at its highest, he had already been held, interrogated, beaten, and released less than two weeks before. There is certainly no indication from his evidence that he was engaged in any activities which would warrant the interest of the army in him at all. This, coupled with the doubtful evidence of the Appellant's additional statement that there is an outstanding warrant and that his brother has been arrested, as well, has led me to conclude the appellant is exaggerating or all together fabricating this aspect of his evidence.

21. Bearing in mind the low standard of proof applicable in such cases, I am prepared to accept the Appellant has been involved in confrontations with the Turkish authorities, possibly on a number of occasions between 1997 and 2001. It must be remembered the Appellant does not live in the south-eastern provinces. He has never indicated he has actively or passively supported the PKK or other serious separatist activities. What the Appellant has actually stated is that he was a young man in a Kurdish village and therefore subject to persistent but probably low grade interest by the local gendarmerie. I am prepared to accept he was approached in 1997, along with other young men in the village, and asked to be village guards. I am of the considered opinion that had he actually been detained and beaten as he stated, he would be able to provide a date with something like the same degree of specificity which he has with the other incidents. Especially as it would have been the first, I would expect the Appellant to remember it clearly. He does not. I therefore conclude it is reasonably likely that he was requested to join the guards and refused, and that was an end of it. Certainly the village was not evacuated as has often been the case. I am prepared to accept it is reasonably likely the Appellant was arrested in Newroz celebrations in March 1998 and detained with others for chanting separatist slogans. I am not prepared to accept the Appellant's account of his 'torture' in the station. It has been vague, conflicting, and fundamentally implausible. It is especially unlikely that he would refuse to seek medical treatment - for what is not entirely clear - because he feared the doctors would report him to the police. If this had actually happened it would have been, of course, the police who had just released him, so I cannot imagine they would have been terribly surprised at the shape he was in. I am likewise prepared to accept the Appellant may have been arrested at the elections in April 1999 for his support of HADEP, detained shortly and released. I do not accept the rest of his account as reasonably likely. I also accept he and his brother might have been stopped in August 2000 in the countryside and detained for questioning. Again, I do not believe it reasonably likely that, having identified the appellant as locals and not PKK terrorists, they would be subjected to the pointless humiliation and abuse the Appellant has suggested. Lastly, I am prepared to accept the Appellant, if stopped by the police, would have been harassed for his HADEP involvement and the posters seized. I do not accept, however, that he would have then spent two days being beaten by teams of plain clothed police. I am fully aware I have no 'crystal ball' in reaching these conclusions. I have deliberated over them carefully and over the course of a day, finally concluding as per Chiver, I could deduce from the Appellant's exaggerations a reliable core of evidence and could accept his detentions while rejecting the severity of his alleged mistreatment. In reaching that, again, I have carefully considered his reaction to these events and what it reasonably might have been had they occurred as he has alleged.

22. The next issue I must address is whether the Appellant faces a real risk of persecution should he be returned on the basis of the evidence which I have accepted as proved before me. It seems to me the principal issue must be whether the events which have been recounted, to the degree which they have been accepted, constitutes a pattern of sustained persecution such that one may conclude with a reasonable degree of likelihood it might continue in future.

23. I have reviewed the Appellant's accounts to determine if they display just such a pattern of persecution, a continuing malign pursuit with injurious intent. I note that with the exception of the 1997 event when the villagers were asked to form a village guard, all of the problems the Appellant has recounted have been in response to provocative behaviour on his part. In 1998 it was chanting clearly provocative and separatist slogans at a Newroz celebration when, it must be accepted, the authorities would have been looking out for just such an excuse. In 1999 it turned on the election and his vocal and public support of HADEP - the rest of the villagers were not taken to the station. In 2000 the Appellant and his brother were two young men out alone in the countryside and thus, potentially, terrorist suspects. In 2001, though the Appellant does not say why his car should have been stopped, it was found to contain HADEP posters, and he and his friends were taken once again to the Gursun gendarme station. Viewed as a whole, there is no pattern whatsoever of the authorities actively pursuing the Appellant. In each case, they appear to be reacting to a specific situation. Had I been able to accept the Appellant's account of mistreatment at the hands of the police of the nature which he has described, I think it likely I would have felt their overreaction and inexcusable abuse could constitute persecution. I have not, for the reasons stated above, however, been able to accept the allegations as proved that the Appellant was mistreated as he has claimed. Given the political situation, indeed the armed insurrection, which was prevalent at the period from 1997 to 2000. I cannot say that the Turkish authorities were overreacting or persecuting the Appellant in detaining and questioning him.

24. I have reviewed the background materials closely about the current situation. It is far from resolved, though it is equally clear that matters are much better than they have been in the last decade. The PKK has disbanded and ceased its terrorist operations, though clashes do continue in the south-east. I accept the Turkish government has not managed to eradicate the culture of abuse of detainees, even torture, and the expectation of impunity displayed by the security forces. It is clear, however, the government is doing everything in its power to rectify this situation and to put an end to such abuse.

25. I have also reviewed the background information about the return to the Appellant. He does not have a passport, but it is clear he can apply for one and should reasonably be expected to receive it from the Turkish Embassy before he returns. In that case, the background information indicates he may reasonably be expected to be passed through without incident other than perfunctory enquiry on his return. Even if he were detained and his identity researched, by the Appellant's own account even taken at its highest, he has never been charged with any offence, nor is there any outstanding offence which has been satisfactorily established before this court. I have, of course, rejected the allegation that the is an arrest warrant pending. There is certainly no indication he has ever been linked with the PKK which might put him at particular risk. Accordingly, I find that there is no real risk of detention or mistreatment upon his return.

26. Although HADEP remains a suspect political organisation, it has survived and has maintained its political viability. Even accepting that the authorities have on occasion abused their position with regard to HADEP and its activities, I cannot construct from that a reasonable possibility the Appellant, who is not a member let alone an officer or significant figure in the organisation, is at any risk more than any other of the thousands and thousands of its supporters throughout the country. It is clear from the background information the Appellant's ethnicity, alone, cannot support a claim for refugee status within the Convention. I therefore conclude the Appellant is not a refugee within the terms of the 1951 UN Convention. Even if I had accepted the Appellant's evidence at its highest, and concluded from that that he was entitled to refugee status, I would have had no difficulty, again relying on the background information, in concluding that it would be perfectly possible for him to relocate in another part of Turkey where he is less likely to run foul of the same gendarmes and be subjected to the same suspicions, particularly in a new era of far better relationships between the Turkish government and its substantial Kurdish minority.

27. It has been urged in submissions the repatriation of the Appellant would result in the United Kingdom breaching its obligations to him under Articles 2, 3 and 4 of the European Convention on Human Rights. While the background information suggests problems remained with the 'disappeared', there is no evidence whatsoever in this Appellant's case which would lead me to suspect there is any risk at all of this in his particular case. Article 3 would certainly have been engaged had I been able to accept the Appellant's accounts of his mistreatment at the hands of the gendarmes. As noted above, I have considered his evidence in this regard very closely and deliberated on it at length. Collectively, I have come to the conclusion I do not believe there is a reasonable degree of likelihood he suffered the serious beatings, the threat of electrocution, the spraying with water, the humiliation of being stripped, and the systematic beating by plain clothes police which he has alleged. Although all of these abuses are reported to have occurred in Turkey, I have simply found it unlikely that the Appellant has directly and personally experienced them. Much of that conclusion is based, as noted above, on his reaction or rather non-reaction to it, the fact that it seems pointless, the police having no apparent intent actually to derive any information from the Appellant, and lastly the vague and disengaged manner in which the Appellant has recounted it. In this last regard, I have very carefully considered the possibility of the Appellant maybe unable or unwilling to recall particular trauma, but I have seen no indication this is the case. Rather, he has simply recounted these events with a casual detachment and a lack of specificity and clarity which have led me to doubt and to reject them.

28. As I am satisfied the Appellant would have no difficulty in returning through immigration controls in Turkey and does not face outstanding criminal charges, I can foresee no likelihood there is a real risk he will be taken again into custody as an act of continuing persecution. I cannot, of course, prevent the Appellant from provoking the authorities into taking note of him, but that must not be mistaken for a pattern of persecution. I therefore conclude there is no real risk of the Appellant being detained and subjected to inhuman or degrading treatment, let alone torture, should he simply be returned to Turkey.

29. Lastly, it was urged that service as a village guard constitutes involuntary servitude. I simply do not have enough information before me to evaluate this in any depth. On its face the Appellant has stated he refused to be a village guard and then, in his additional statement, suddenly remembered that he was a village guard. He has given no indication in his evidence at any point that this was an onerous or burdensome or hateful activity, indeed that it was any activity at all. If I were to accept his second account, it is doubtful it was voluntary, but the Appellant simply has not developed this line of evidence in such a way that I may find any basis to conclude he was actually subjected to involuntary servitude. I am of the clear opinion that had that been the case, he would have listed that as one of his pre-eminent reasons in fleeing Turkey. He did not. Indeed, I do not think it is reasonably likely he ever was a village guard. Accordingly, on the basis of the limited reliable evidence adduced, I conclude the United Kingdom will not be in violation of its obligations under Article 4 of the ECHR were it to return the Appellant to Turkey.

"The decision must, in short, leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it."