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APPEAL BY YUCEL GUVENC FOR JUDICIAL REVIEW OF A DECISION OF THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) REFUSING PERMISSION TO APPEAL TO ITSELF [2022] ScotCS CSIH_3 (19 January 2022)
URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSIH_3.html
Cite as:
2022 SLT 494,
[2022] ScotCS CSIH_3,
2022 SLT 396,
[2022] CSIH 3,
2022 GWD 2-16,
2022 GWD 7-112
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 3
P841/20
Lady Paton
Lord Turnbull
Lord Doherty
OPINION OF LADY PATON
in the Appeal
by
YUCEL GUVENC
Petitioner and Appellant
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber)
dated 6 June 2020 refusing permission to appeal to itself
Petitioner and Appellant: Caskie; Drummond Miller LLP (for Maguire, Solicitors, Glasgow)
Respondent: Massaro; Office of the Solicitor for the Advocate General
19 January 2022
[1]
I am grateful to Lord Turnbull for outlining the background to this appeal and the
arguments in favour of granting it, and also to Lord Doherty for providing counter-
arguments advocating refusal.
[2]
When weighing the arguments for and against granting the appeal, I have found it
difficult to exclude the possibility that the FtT's assessment of the appellant's credibility may
have been adversely affected by the omissions referred to by Lord Turnbull and
2
Lord Doherty. In particular, in paragraph 44 of the FtT decision, there is no mention of the
appellant's explicit statement in answer 4.1 of the screening interview that his "life was
under threat", nor is there any mention of an amendment to answer 2.1 which referred to
"physical and psychological torture". Where an asylum-seeker does not mention significant
matters such as threat to life or torture, any subsequent claims may seem less credible, even
paragraph 19. The omission in paragraph 44 of the fact that the appellant explicitly stated at
the screening interview that his "life was under threat", and the fact that an amendment to
answer 2.1 of the screening interview explicitly referred to both "physical and psychological
torture", seems prima facie to result in an incomplete or inaccurate narration of fact which
could have the effect of disadvantaging the appellant by casting doubt on any subsequent
such claims. As a result I have a concern about the FtT's assessment of credibility in this
particular case.
[3]
Whether or not the point can be regarded as "Robinson obvious" (see R v Secretary of
State for the Home Department, ex parte Robinson [1998] QB 929), the difficulty I have in
dismissing the possible prejudice to the appellant is such that I have concluded that there is
an "extremely sound reason for ... compelling the parties to [this] appeal to engage with a
matter that neither of them has identified" (Lane J in The Secretary of State for the Home
arguable error of law (namely possible reliance upon a materially inaccurate or incomplete
factual premise as a basis for a credibility assessment). I have also concluded that the error
is strongly arguable and that there is a strong prospect of success. These conclusions,
coupled with potentially dire consequences were the appellant to be returned to Turkey, are
3
sufficient in my view to satisfy the "second appeals test" (paragraph 22 of JD (Congo) v
[4]
In the result therefore, for the reasons given by Lord Turnbull, I agree that the
Lord Ordinary's interlocutor of 22 January 2021 should be recalled; permission to proceed
should be granted on the limited basis outlined by Lord Turnbull; and the case should be
remitted to the Outer House to proceed as accords.
4
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 3
P841/20
Lady Paton
Lord Turnbull
Lord Doherty
OPINION OF
LORD TURNBULL
in the Appeal
by
YUCEL GUVENC
Petitioner and Appellant
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber)
dated 6 June 2020 refusing permission to appeal to itself
Petitioner and Appellant: Caskie; Drummond Miller LLP (for Maguire, Solicitors, Glasgow)
Respondent: Massaro; Office of the Solicitor for the Advocate General
19 January 2022
[5]
The appellant is a 41 year-old Turkish national of Kurdish ethnicity who sought
asylum based upon his political opinion, race and religion. The Secretary of State refused
his application and he was unsuccessful in his appeal against that decision before the
First-tier Tribunal (the "FtT"). The Upper Tribunal (the "UT") refused to grant leave to
appeal to it in its decision dated 6 June 2020 and the appellant seeks to challenge that
5
decision by judicial review. On 22 January 2021 the Lord Ordinary refused permission for
the petition to proceed. The appellant challenges his decision in the present appeal brought
under section 27D(2) of the Court of Session Act 1988.
[6]
The proposed judicial review argues that the UT erred in law in failing to recognise
an arguable error of law on the part of the FtT and that the UT gave inadequate reasons for
its decision. It is appropriate for this court to examine the decisions of both tribunals. The
appellant maintains that in this case the "some other compelling reason" limb of section
27B(3)(c) of the 1988 Act is satisfied.
The First-tier Tribunal
[7]
The FtT accepted the appellant's evidence that he was Kurdish but held that he had
not established that he was of the Alevi faith. His evidence that he was taken into custody
by the Turkish authorities and tortured by them was rejected, as was his evidence that he
been asked to become an informant for the Turkish security forces. The FtT concluded that
the appellant did not have a high profile in the People's Democratic Party ("HDP") but was
a supporter of it. Having arrived at these conclusions, the FtT held the appellant had not
established that he was at risk of being persecuted because of his ethnicity or because of his
political or religious beliefs and dismissed his appeal.
[8]
The FtT made a number of adverse credibility findings against the appellant. It
rejected the evidence that he was of the Alevi faith for the reasons which are given at
paragraph 42 of the decision, in short that the appellant appeared to know very little about
that faith.
[9]
In assessing the appellant's account of having been taken into custody and tortured
by the Turkish authorities, the FtT noted that when asked at his screening interview briefly
6
to explain all the reasons why he could not return to his home country the appellant only
replied "because of being Kurdish and Alevi". It noted that when asked whether he had
ever been detained for any reason he replied that he had not.
[10]
At paragraph 46 of the decision the FtT noted that five days after the screening
interview the appellant's solicitors submitted an amendment to the record of that interview.
It noted that the appellant did not expand upon his reasons for not being able t o return
home by, for example, mentioning fearing persecution because of his political opinion. It
also noted, as being particularly significant, that the appellant said nothing about his alleged
detention and arrest by the Turkish authorities.
[11]
At paragraph 47 the FtT referred to the statement prepared by the appellant in
advance of his substantive asylum interview. It noted that in this statement he gave details
about being arrested on several occasions, including providing information as to
mistreatment and torture whilst in police custody. It noted that in this statement he referred
to an offer to act as an informant as a condition of being released.
[12]
The reasons given by the FtT for rejecting the appellant's evidence on these matters
can be found in paragraphs 45, 47, 48 and 50 of the decision. These were, first, there was no
suggestion in the screening interview transcript that the appellant was having difficulty
with the interpreter and he signed the record confirming that he had understood all the
questions asked. Second, the appellant's "silence" about his detention and torture during
the screening interview could not be excused by his diagnosis of PTSD, which included a
coping mechanism of disassociation, since the appellant clearly had a significant ability to
recall these events when he prepared his statement. Third, he gave inconsistent answers
concerning the chronology of the times when he was detained during the course of his
statement. Taking these matters in combination the FtT concluded, at paragraph 50, that:
7
"... the Appellant has seriously damaged his credibility by failing to tell the
Respondent at the time of the screening interview all of the reasons why he feared
returning to Turkey. His failure to mention his arrest and detention was a material
omission and it cannot be excused for the reasons that he claims. Furthermore, he
subsequently amended his screening interview record but said nothing about his
encounters with the security forces. ... If one looks at these matters collectively, the
obvious conclusion that I must draw is that he was not arrested and/or detained or
tortured/mistreated by the Turkish security forces as he claims."
The FtT considered the issue of whether the appellant was politically active with the HDP in
Turkey. It noted his own evidence that he was a supporter but not a member of that party.
Taking account of the evidence led, including the appellant's witness Mr Ucer, the FtT
concluded that the appellant was not a prominent person or someone who had a high
profile in the HDP.
The Upper Tribunal
[13]
The UT noted that the FtT had taken account of the relevant considerations in
arriving at its decision as to the appellant's credibility. Appropriate consideration was given
to the evidence relied on by the appellant and proper account was taken of the relevant
country guidance. The UT accordingly concluded that no error of law was identified in the
decision sought to be challenged.
The proposed grounds of challenge
[14]
The grounds of appeal relied upon before the UT were described as "14 detailed
Grounds of Appeal". In large part they comprised a narrative account rehearsing the import
of the submissions made to the FtT and contending that the decision arrived at was wrong.
Ground 1 contains only narrative and makes no claim to identify an error of any description.
[15]
In summary, the propositions advanced in the grounds of appeal were:
8
Ground 2 the FtT erred in law by leaving out of account the context in which the
appellant's screening interview was conducted.
Ground 3 the FtT erred in law by failing to take account of the distinction between
detention and arrest in giving weight to the appellant's answer that he had never
been arrested (sic).
Ground 4 in assessing the appellant's credibility the FtT erred in law by leaving out
of account the evidence given by the psychologist of disassociation as a consequence
of past traumatic events.
Grounds 5 and 6 the FtT erred in law by taking account of the fact that the
appellant had signed his screening interview to confirm that he had understood all of
the questions asked.
Grounds 7, 8 and 9 the FtT erred in law in its treatment of the evidence given by the
witness Mr Ucer.
Grounds 10, 11, 12 and 13 the FtT erred in law by failing to assess the evidence in
line with the relevant country guidance.
Ground 14 the FtT erred in law by reaching its conclusion that it was not plausible
that the appellant was able to leave Turkey if he was of interest to the police in the
absence of any evidence concerning exit controls which would have entitled that
view to be reached.
Appellant's submissions
[16]
The note of argument, which set out submissions in support of all the grounds of
challenge with the exception of ground 14, was adopted. In oral submissions the focus of
9
the appeal was narrowed by addressing only the FtT's treatment of the appellant's screening
interview and the evidence of Mr Ucer.
[17]
An introduction to the screening interview was read to the appellant which
explained that he would be asked for a brief outline of why he was claiming asylum and that
he would be asked for full details of his experiences and fears at a later interview. Against
that background, at Question 4.1, he was asked to explain briefly why he could not return to
his home country. The appellant explained that he attempted to give more information but
was told that was to be provided at a later substantive interview. He gave an appropriate
summary. Account should have been taken of the purpose of the interview, as it had been
explained, and of the diagnosis of PTSD with the associated coping mechanism of
dissociation in assessing the answer given. The FtT failed to do so, or failed to provide
adequate reasons as to what effect was given to that evidence and why.
[18]
The appellant was not in a position to agree the accuracy of the transcript of his
interview as it had been taken through translation. The transcript was written in English
and was not read back to him in his own language. The FtT was not entitled to take account
of the fact that the appellant had signed the interview form.
[19]
There was a distinction between arrest and detention which was recognised in the
country guidance case of IA and Ors (Risk Guidelines-Separatist) Turkey CG [2003] UKIAT 00034.
The FtT failed to take account of that in assessing the appellant's reason for
answering as he did when asked whether he had ever been detained.
[20]
In assessing what weight to give to inconsistencies between what was said at a
screening interview and later evidence the FtT required to approach the issue with the
done so.
10
[21]
The FtT accepted the evidence of the appellant's witness Mr Ucer but failed to give
effect to it. The witness gave an account of what the appellant had told him about his
treatment at the hands of the Turkish authorities, which was correctly characterised as
hearsay. The judge ought still to have had regard to the truthfulness of that account in the
absence of any reason to suggest that the appellant had been lying to Mr Ucer.
[22]
The FtT ought to have taken these factors into account cumulatively in assessing the
appellant's credibility. It did not do so and failed to lawfully assess the appellant's
evidence.
[23]
The errors of law identified were strongly arguable and the consequences for the
appellant of being returned were dire. Accordingly the proposed grounds for review met
the compelling reasons test.
Respondent's submissions
[24]
The proposed grounds of review do no more than re-argue the submissions
advanced to the FtT and complain about the weight attached to various parts of the
evidence. The weight to be given to evidence properly analysed was entirely for the FtT.
The FtT was entitled to conclude that if the appellant had indeed been taken into custody
and tortured then his failure to mention those events at his screening interview was
astonishing. The FtT took account of the psychological evidence led and gave appropriate
weight to it. The FtT correctly noted that no complaint was made about the interpretation or
accuracy of the transcripts of interview. It was entitled to take that fact into account and did
not err in law in doing so.
[25]
The FtT properly understood and took account of the country guidance information
before it.
11
[26]
The reasons given by the Upper Tribunal were adequate. They were addressed to,
and intended to be understood by, someone well versed in the facts of the case and familiar
with the arguments Waqar Ahmed and Others v SSHD 2020 CSIH 59. In these circumstances
refusal of permission may be made in short form.
[27]
The appellant had failed to show that any of the proposed grounds of review had a
real prospect of success and the second appeals test was not met.
Decision and reasons
[28]
Grounds 2, 3, 4, 5 and 6 all concern the decision arrived at in light of an assessment of
the appellant's screening interview. Grounds 7, 8 and 9 concern the evidence of Mr Ucer. It
may be convenient first to address the grounds which were not the focus of oral
submissions.
[29]
In grounds 10, 11, 12 and 13, propositions are advanced concerning the relevant
country guidance material which was before the FtT. Submissions in support of these
propositions are set out at paragraphs 19 to 22 of the appellant's note of argument. The
contention that the FtT failed properly to take account of the risk factors identified in the
country guidance case of IA and Ors, or failed to take account of the Country Policy and
Information Note ("CPIN") relied on, has no substance. The FtT specifically addressed itself
to the question of what risk the appellant would face as a low-profile supporter of the HDP
on return to Turkey. At paragraph 56 of the decision it referred to the case of IA and
correctly identified the various factors which require to be considered. It recognised that
these factors required to be assessed in the round. At paragraph 57 of the decision the FtT
explained that it took account of the CPIN. The specific paragraphs of that Note referred to
by the FtT are to be found in the section setting out the Secretary of State's analysis. The
12
suggestions that the FtT has failed to take account of the information section of the Note,
and has simply accepted the Secretary of State's analysis without applying its own
assessment, are without foundation and do not identify an arguable error of law. No
submissions in relation to ground 14 are to be found in the appellant's note of argument. In
those circumstances I need say no more about it.
The witness Ucer
[30]
Mr Ucer is a former member of the Turkish Parliament. He lives in Belgium where
he was granted asylum. In his statement he explained that he had known the appellant and
his family for a very long time. He spoke about the appellant's activity in the HDP. At
paragraph 49 of its decision the FtT refers to the passage in Mr Ucer's statement in which he
mentions the appellant's detention. It notes:
"The evidential value of this is very limited for the simple reason that it is hearsay. It
is based on the Appellant's self-reporting. Mr Ucer was not present when the alleged
torture and mistreatment took place and he can do no more than take the Appellant's
account at face value."
This is a generous interpretation of the witness's statement. The relevant passage reads:
"I heard about Yucel being detained and interrogated by the authorities. I knew that
he was under detention and was being badly treated by the authorities."
[31]
Mr Ucer's statement does not explain from whom he learned of the appellant's
detention, when he heard of this or in what circumstances. It does not explain how he knew
that the appellant was being mistreated. The FtT was plainly entitled to give whatever
weight it thought appropriate to this piece of evidence. The criticisms advanced under the
grounds of appeal directed at the evidence of Mr Ucer do not identify an arguable error of
law. Proposed grounds 7, 8 and 9 are not arguable.
13
The screening interview
[32]
The remaining grounds of review all address the adverse view as to the appellant's
credibility which the FtT came to as a consequence of what it saw as information provided
later which was not mentioned at the appellant's screening interview.
[33]
The proposition advanced in grounds 5 and 6 to the effect that the FtT was not
entitled to take account of the fact that the appellant had signed the record of his interview,
acknowledging that he had understood all the questions asked, is without substance. The
FtT refers to this at paragraph 45 of its decision in the context of explaining that the
transcript had been read over and disclosed no suggestion that the appellant was having
difficulty with the interpreter. This was an entirely fair and appropriate exercise for the FtT
to have undertaken. As an addendum to that statement, the observation is made that the
appellant confirmed that he had understood all of the questions. The part of the form
containing this confirmation requires to be read to the appellant and it is factually correct
that he so confirmed. Nothing more was taken by the FtT than that.
[34]
It should also be noted that the appellant made no complaint about having any
difficulty in understanding what he was being asked. He had the benefit of an interpreter
assisting by telephone. No arguable point of law is identified in these grounds.
[35]
The proposition identified in ground 3 and the submissions in support of it are
confused and misconceived. The ground proceeds upon the basis that the appellant was
asked in his screening interview whether he had ever been arrested and that some form of
distinction between arrest and detention was available such as would explain why the
appellant answered that he had not. Contrary to what is stated in the ground and in the
note of argument, the question asked of the appellant at screening interview was:
14
"5.4 Have you ever been detained, either in the UK or any other country for any
reason?"
The answer recorded is:
"No"
The appellant attempts to provide an explanation for this at paragraph 27 of his statement
by claiming that he told the interviewing officer that he had been detained on several
occasions between 2011 and 2014. He asserts that the interpreter must have made a mistake
confusing detention and arrest. As can be seen, when the question asked is properly
understood, this explanation makes no sense. The FtT was entitled to reject the appellant's
account. No arguable error of law is identified.
[36]
The proposition identified in ground 4 relates to the accepted evidence that the
appellant suffered from PTSD and had an associated coping mechanism of disassociation.
At paragraph 39 of the decision it is noted that:
" ... some leeway can be given to the Appellant concerning his ability to recall past
events. This is because in his professional opinion, Dr Morrison believes that the
Appellant had to develop coping mechanisms within the area of disassociation to
prevent him from being exposed to traumatic memories of a particular period in his
life and, as such, it is reasonable to assume that there may be inconsistencies in terms
of the account of that time period."
[37]
Having reached this view, it was a matter for the Tribunal to determine what weight
it was appropriate to give to the evidence of the appellant's condition and how much
"leeway" his condition might afford him by way of explaining inconsistent accounts.
Having reviewed and assessed the content of the screening interview, the subsequent
information provided by the appellant and the explanations provided in his statement, all as
set out in paragraphs 43 to 47 of the decision, the FtT concluded that the appellant's failure
to provide any information about his repeated detention and torture in his screening
15
interview could not be excused by his PTSD. It is therefore wrong to state that the FtT failed
to take account of the medical evidence in assessing the appellant's credibility. No arguable
error of law is identified in this ground.
[38]
The sole remaining basis of challenge is to be found in ground 2. The argument is in
two parts. First, in making an adverse credibility finding against the appellant on the basis
of what was said, and not said, the FtT left out of account the advice given to the appellant
by way of introduction, namely that he was only to give a brief outline of his reason for
claiming asylum. Second, the FtT failed to adopt the cautious approach described in the
case of JA (Afghanistan) before relying on apparent inconsistencies between what was said at
a screening interview and in later statements.
[39]
significance of discrepancies between a screening interview and further evidence. It did so
by explaining the purpose and limitations of a screening interview and drawing attention to
the circumstances in which such an interview can come to be conducted. In the present case
the FtT specifically referred to this guidance and correctly identified the relevant
considerations. It cannot be argued that the decision then arrived at ignored the context in
which the answers to the questions asked were given. It ought also to be kept in mind that
in the petitioner's case the interview was not conducted when he was tired after a long
journey. He left Turkey on 5 May and flew to Rotterdam where he stayed in a hotel until
12 May when he then took a short flight to London. The appropriate level of caution was
applied. No arguable error of law is identified in this ground.
[40]
Despite this analysis of the proposed grounds of review, the court is left with a
concern. In statement 7 of the petition the appellant outlines his contentions about the way
in which the FtT treated the screening interview. He states:
16
"Whilst the weight to be given to particular adminicles of evidence is (in general) a
matter for the FtT Judge that does not apply where the FtT Judge failed to have
regard to relevant matters."
This is an uncontroversial proposition. The answer on behalf of the respondent includes the
statement that:
"The credibility of the Petitioner is at the heart of the FtT decision. The FtT's rejection
of his account of his treatment in Turkey was fatal to his claim."
It is plain that the appellant's credibility was at the heart of the decision arrived at by the
FtT. At paragraph 43 of the decision, having outlined the relevant considerations specified
in the case of YL, the judge stated:
"Notwithstanding this, I have very serious concerns about what he said and what he
did not say at that interview."
At paragraph 50 the assessment of the appellant's credibility was drawn together in the
statement:
"I believe that the Appellant has seriously damaged his credibility by failing to tell
the Respondent at the time of the screening interview all of the reasons why he
feared returning to Turkey. His failure to mention his arrest and detention was a
material omission and it cannot be excused for the reasons that he claims."
Such an assessment would be beyond challenge if the discrepancies relied upon were truly
present and had been properly assessed. As set out at paragraph [5] above, the FtT
proceeded upon the understanding that when asked briefly to explain all the reasons why
he could not return to his home country the appellant only replied "because of being
Kurdish and Alevi".
[41]
Examination of the record of the interview discloses the additional words - "my life
was under threat". Secondly, as noted at paragraph [6] above, the FtT considered that it was
particularly significant, that the appellant said nothing about his alleged detention by the
Turkish authorities in the amendment to the record prepared by his solicitor. That
17
observation is correct insofar as it goes but it is to be noted that an amendment to the answer
to Question 2.1, enquiring about medical conditions, was set out. That amendment reads:
"I have mental issues due to physical and psychological torture ..."
Neither of these statements is mentioned by the FtT in the summary of the appellant's
position which is set out at paragraph 44 of the decision.
[42]
If the appellant is to be seen as having made claims of being tortured and of his life
being under threat at the time of the screening interview that would run contrar y to much of
the thrust of the FtT decision. There is however, no ground of review to the effect that the
FtT failed to take account of either of these two pieces of information when assessing the
credibility of the appellant's claim.
[43]
This raises the question of whether the court can, or should, grant permission to
proceed with the judicial review upon a point not raised in the petition. In the case of The
paragraph 70:
"there must be an extremely sound reason for ... compelling the parties to an appeal
to engage with a matter that neither of them has identified"
At paragraph 69 he explained that a judge must not grant permission to appeal on a ground
not mentioned in the application unless satisfied that the ground identified is one which has
a strong prospect of success.
[44]
The Tribunal's failure to consider the import of the amendment to the answer to
Question 2.1, as noted above, cannot be dismissed as minor or immaterial as it may be said
that it goes to the heart of the reason why he was seeking asylum. It can be argued that the
FtT's inaccurate summary of facts in paragraph 44 provided a basis for, and strongly
influenced, its ultimate decision on credibility. A "threat to life" and "torture" are important
18
matters where someone is claiming to be unable to return to a country, and a failure to
mention those important matters at the screening interview might well give rise to doubts
about subsequent statements detailing threat to life and torture. Such a misrepresentation of
core facts may arguably comprise an error of law, giving an inaccurate premise for
subsequent reasoning. The omission may also arguably be an error of law which can be
categorised as a failure to take into account relevant and material considerations which
ought to have been taken into account. It may be argued that the UT in turn erred in law by
failing to identify the FtT's error in law.
[45]
In these circumstances, I am persuaded that the arguable errors of law identified
meet the test described by Lane J. They give rise to strongly arguable errors of law. That
conclusion, coupled with potentially dire consequences if the appellant were to be returned
to Turkey, is sufficient to satisfy the requirements of section 27B(3)(c)(ii) of the Court of
Session Act 1988. I would grant permission to proceed with the Judicial Review, but limited
to the grounds identified in paragraph [44] above. Quoad ultra I would refuse permission to
proceed. The pleadings will require to be amended to reflect the basis upon permission has
been granted.
19
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2022] CSIH 3
P841/20
Lady Paton
Lord Turnbull
Lord Doherty
OPINION
delivered by LORD DOHERTY
in the Appeal
by
YUCEL GUVENC
Petitioner and Appellant
against
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber)
dated 6 June 2020 refusing permission to appeal to itself
Petitioner and Appellant: Caskie; Drummond Miller LLP (for Maguire, Solicitors, Glasgow)
Respondent: Massaro; Office of the Solicitor for the Advocate General
19 January 2022
Introduction
[46]
I am grateful to Lord Turnbull for setting out the circumstances of this appeal. I
regret that I disagree with your Ladyship and your Lordship as to the appropriate disposal.
[47]
In my opinion none of the grounds of challenge which are set out in the petition pass
the test in section 27B(3)(c) of the Court of Session Act 1988. It was not suggested that any of
20
those grounds raises an important point of principle or practice (section 27B(3)(c)(i)). The
contention was that there is some other compelling reason for allowing the application to
proceed (section 27B(3)(c)(i)). The compelling reason here was said to be that the grounds
disclosed one or more strongly arguable errors of law on the part of the FtT and the UT,
coupled with truly drastic consequences for the appellant were he to be returned to Turkey
(JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273, judgment of the
court delivered by Sullivan LJ at para 22). I am not satisfied that any of the grounds relied
upon in the petition provide a good basis for saying that it is strongly arguable that the FtT
(or in its turn the UT) erred in law in a material respect. Indeed, none of them even
persuade me that it is arguable that the tribunals erred in law in a material respect.
[48]
I turn then to the two other matters which were not raised in the petition or in the
petitioner's written or oral submissions, but in respect of which your Ladyship and your
Lordship consider that permission to proceed should be granted.
Life under threat
[49]
The first matter is that in paragraph 44 of its decision the FtT does not mention that
the petitioner stated in his screening interview that he could not return to Turkey because
his life was under threat. Question 4.1 asked:
"Part 4 Basis of asylum claim
4.1
Please BRIEFLY explain ALL of the reasons why you cannot return to your
home country?"
The appellant's answer was: "Because my religion is Alevi and Kurdish my life was under
threat." At paragraph 17 of its decision the FtT noted the respondent's consideration of this
part of the interview:
21
"During his screening interview he said that he was claiming asylum because his life
was at threat because of his religion and ethnicity but he did not mention his political
opinion or his support of the HDP and he did not amend this at a later stage."
At paragraph 44 the FtT stated:
"When he was asked at question 4.1 briefly to explain all of the reasons why he could
not return to his home country he is recorded as saying because of being Kurdish
and Alevi."
The appellant's position was that it was because he was a Kurdish Alevi that he would face
persecution if he returned - his life would be at threat for that reason. In my view the FtT
fully understood that that was what was said at the screening interview. It had narrated it at
paragraph 17. It is not something which it overlooked or left out of account.
[50]
Even if, contrary to my view, the FtT ought to be understood not to have had regard
to the fact that the appellant had said that his life was under threat, in my opinion it is not a
point which the court should take ex proprio motu. It is not Robinson obvious (R v Secretary of
state for the Home Department, ex parte Robinson [1998] QB 929). Standing the FtT's findings
(in particular, that the appellant was not an Alevi (because he demonstrated no real
knowledge of Alevi beliefs); that he said he had never been detained at the screening
interview and that he made no mention at that time of torture or ill-treatment by the police;
that his later accounts of detention and arrest were inconsistent and contradictory; and that
he failed to claim asylum in the Netherlands, a safe country, (and had no adequate
explanation for not doing so), it cannot be said that it is a point which has strong prospects
of success. On the contrary, the prospects of success on this point seem to me to be
negligible.
The amendment to the answer to Question 2.1
[51]
Question 2.1 at the screening interview was:
22
"Do you have any
- medical conditions
- disabilities
- infectious diseases
- medication which you are or should be taking?"
The appellant's answer was: "Blood pressure tablets, Anti-acid for stomach"
[52]
Question 2.3 was: "Is there anything else you would like to tell us about your
physical or mental health?". The Appellant's answer was: "No."
[53]
Question 5.4 was: "Have you ever been detained, either in the UK or any other
country for any reason?" The appellant answered: "No."
[54]
The screening interview took place on 12 May 2019. After the interview the
appellant instructed solicitors to act on his behalf. On 20 May 2019 those solicitors prepared
a "Statement of Amendments to Screening Interview Record" which the appellant signed.
That Statement was sent by the solicitors to the respondent on 28 May 2019. Among the
proposed amendments within it was the following amendment to the answer to
Question 2.1:
"I have mental issues due to physical and psychological torture and had an operation
and treatment for bladder cancer. I also have blood pressure."
No amendment to the appellant's answer to Question 5.4 was proposed.
[55]
In my view it would be wrong to proceed on the basis that the FtT was unaware of
the amendment to the answer to Question 2.1 and left it out of account. The FtT stated at
paragraph 30 of its decision that it had taken account of all relevant material and had given
it anxious scrutiny. It made clear that it was setting out the core evidence relied upon by the
appellant. There is no indication that the amendment to the answer to Question 2.1 featured
at all in the submissions advanced for the appellant to the FtT.
23
[56]
Moreover, it did not feature in the application to the UT or in the grounds advanced
to this court. Indeed, when I raised the matter with counsel for the appellant he did not seek
to make anything of it.
[57]
Once again, even if, contrary to my view, the FtT ought to be treated as having left
this matter out of account, in my opinion it is not a point which the court should take ex
proprio motu. It is not Robinson obvious. It cannot be said to give rise to a ground of
challenge which has strong prospects of success. The plain fact of the matter is that at his
screening interview the appellant indicated clearly in his answer to Question 5.4 that he had
never been detained. He did not seek to correct that answer even after he had had more
than a week to reflect upon it and had had the benefit of consulting solicitors. Moreover, at
no point in the interview or the amendments did he state that he had been tortured or ill-
treated by the police. Once those facts are considered along with the FtT's findings that the
appellant was not an Alevi; that his later accounts of detention and arrest were inconsistent
and contradictory; and that he failed to claim asylum in the Netherlands, a safe country, and
had no adequate explanation for not doing so, the prospects of a successful appeal appear to
me to be very poor indeed.
Conclusion
[58]
For the foregoing reasons I would refuse the appeal.
