United Kingdom Asylum and Immigration Tribunal

HT Turkey [2002] UKIAT 03722

CC/25010/2001

IMMIGRATION AND ASYLUM TRIBUNAL

Date of hearing: 25 July 2002

Date Determination notified: 14 August 2002

Before

DR H H STOREY (CHAIRMAN)

MISS S S RAMSUMAIR JP

MRS J HARRIS

Between

HT	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

DETERMINATION AND REASONS

1. The appellant, a national of Turkey, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr A P Higgins, dismissing the appeal against the decision of the Secretary of State giving directions for his removal following refusal to grant asylum. Mr M Soorjoo of Counsel instructed by Wilson & Co Solicitors appeared for the appellant. Mrs M Banwait appeared for the respondent.
2. The Tribunal has decided to dismiss this appeal.
3. The adjudicator accepted that the appellant was a Kurd and that in 1994 he and his father had been arrested and detained and ill-treated for providing food and succour to the PKK. Although further accepting that as a consequence the appellant`s name may have been recorded and so his involvement in this incident would come to light when he returned, the adjudicator concluded that any risk would be "too speculative" for him to come to the conclusion that there was a real risk of persecution. He pointed out that the detention had been short, that the appellant and his father had been released without charge and that in the intervening period he had been out of the country as a draft evader. As regards the appellant's claimed objections to performing military service, he considered these were based not on any deeply held convictions but rather on his concerns about the unpleasant atmosphere in which his military service would have been performed. Even however if he had accepted the appellant as an absolute conscientious objector he would have rejected any clam based on this, in view of the judgment of the Court of Appeal in Sepet and Bulbul [2001] Imm AR 452.
4. As regards the appellant`s human rights grounds of appeal, the adjudicator accepted that since the appellant had married someone from Turkey who had been in this country since 1993 and was now a British citizen, he had established a family life within the meaning of Article 8(1). He further accepted that the decision to remove him constituted an interference with that right. However he did not accept that the interference was disproportionate, in view of the fact that both parties knew at the time of their marriage that the appellant`s immigration position was precarious. He saw no insurmountable obstacles to the couple living together in Turkey. In this regard he did not consider that the appellant's wife having to live for a period as a single parent whilst he served a period of imprisonment as a draft evader altered that conclusion.
5. The grounds raised several objections to the adjudicator's reasoning. Three we may dispose of briefly. It was argued he had adopted the wrong standard of proof. That objection centered on his reference at paragraph 19 where he referred to the balance of probabilities. However, read as a whole it is clear the adjudicator was indeed applying a lower standard, seeking in the way he analysed the evidence to adhere closely to the approach enjoined by the Court of Appeal in Karanakaran [2000] Imm AR 271. Indeed, it is very hard to see how he could have accepted that the 1994 arrest happened if he had applied the civil standard of balance of probabiliities.
6. It was further argued the adjudicator failed to evaluate the claim in the light of the country background material. However, apart from making reference to the Home Office bundle (which included, we note, CIPU material), the adjudicator made detailed reference to the Court of Appeal judgment in Turgut [2000] Imm AR 306, in which background materials, including most of those mentioned in a further ground of appeal requesting that the Tribunal accept further background evidence, were analysed by their lordships in great depth. This ground has no merit. In relation to that further request, however, we should mention for the sake of clarity that we have accepted into evidence and taken account of all the materials properly filed by both parties. We are grateful to Mr Soorjoo for drawing our attention to various passages in the bundle including those dealing with events since 2000.
7. Another argument raised was that the adjudicator failed to consider the risks facing this appellant cumulatively, considering in the round his ethnicity, the fact of his having evaded the draft, his past detention and ill-treatment and the fact he would have a record arising out of the 1994 events. Whilst we would agree that the adjudicator should have made clearer that he considered these factors cumulatively, we see insufficient evidence to support the allegation that the adjudicator only considered these factors serially and in isolation. We note that at paragraph 17, when dealing with the issue of ethnicity, he carefully related his assessment of this factor to his earlier treatment of the 1994 events. Furthermore, even if we thought his approach was not holistic enough, this would not necessarily help the appellant`s case, since in at least one respect there appear to us to have been more factors than those identified by the adjudicator counting against the appellant`s claim to face identification as a suspected separatist. We shall come back to these.
8. The principal objection raised by the grounds was that. having effectively accepted that a record would have been kept on the circumstances of the 1994 arrest, the adjudicator should have recognised that the appellant came within a continuing risk category as a suspected separatist. We agree with Mr Soorjoo that the adjudicator's reasons for rejecting this view lacked clarity. However, it is clear enough in our view that in describing the risk as "too speculative" what the adjudicator meant was that in the circumstances of this case it was not reasonably likely that the authorities would regard an arrest as long ago as 1994 as bringing the appellant within the "suspected separatist" category.
9. Certainly the adjudicator made clear what some of these circumstances were: the fact that at the time of the arrest the appellant was only 18, that he and his father had been released without charge, that he had remained in Turkey for a further 14 months or so, that he had then returned to Turkey in January 2000 from Germany, albeit entering clandestinely and that he would be returned now as a draft evader liable to punishment by way of up to 3 years imprisonment. In our view he should have made clearer that they also included the fact that the 1994 arrest was for no more than giving food and succour to the PKK; the fact that on the appellant's own account, in the period between release from detention and departure from Turkey, he had voluntarily attended a military service medical examination and indeed gone on to make a complaint to the prosecutor. We see this as relevant because, if he had seriously believed at that stage that he would face adverse treatment as a suspected separatist because of the 1994 arrest, we do not consider he would have so readily made contact with the authorities in compliance with the order that he report for military service, nor would he have complained in the way he said he did. On his own account he had left Turkey, not because of anything to do with the 1994 incident, but because of his objections to military service.
10. As regards his objections to military service we consider the adjudicator's findings were entirely sustainable and we note that the grounds do not effectively seek to maintain that he had, as he said in his original statement, an absolute objection to military service.
11. Two further circumstances the adjudicator should also have taken into account were firstly that there was no credible evidence that since 1994 the authorities had shown any interest in him except possibly in relation to his draft evasion; and secondly there was no credible evidence to show that any member of his family, including his father who had been arrested with him in 1994, had been subsequently targeted by the authorities.
12. Given these circumstances, we think the adjudicator was right to conclude that the authorities would not in fact view the appellant as a suspected separatist. It is true that because they would have a record on him in relation to the 1994 incident they would know he was once a suspected separatist. However, we do not read any of the objective country materials as establishing that the Turkish authorities operate the approach of "once a suspected separatist, always a suspected separatist".
13. Mr Soorjoo has sought to argue that if anything the fact that the arrest was so long ago might make the authorities more interested because then PKK were then more dangerous. However, he was not able to point to any evidence in support of that suggestion. It seems to us more sensible to assume that the Turkish authorities would approach the question of whether he should be regarded as a suspected separatist by reference to a number of obvious features about the appellant`s case. In particular they would note that the arrest was a long time ago, that he was young at the time, that in any event his only involvement with the PKK was the extremely passive one of providing them with food and succour and that there was nothing to show that he or his family had subsequently been of any concern to them, except in relation to his draft evasion.
14. For the above reasons, we would reject the asylum grounds of appeal.
15. As regards the human rights grounds of appeal, which Mr Soorjoo rightly observed only really engaged Article 8, we are not persuaded they demonstrate that the decision to remove the appellant was a disproportionate interference with his right to respect for private and family life. The adjudicator plainly approached the relevant issues in the light of the guidelines set out by the Court of Appeal in Mahmood [2001] INLR 1 and the Tribunal in Nhundhu and Chiwera (01/TH/0613). In concluding there were no insurmountable obstacles, he correctly treated as factors counting heavily against the appellant: that he and his wife both knew when they married that his immigration status was precarious; that the appellant had not been in the UK for very long, having arrived in February 2000; that although the appellant`s wife was a British citizen who was pregnant, she had lived in Turkey as a child and her own family was Turkish; and that there were no satisfactory evidence she would herself face any adverse attention from the Turkish authorities or that medical and other facilities there would be so inferior as to subject her to any serious harm. In conducting the balancing exercise under Article 8 he did accept that because the appellant would have to serve a period of imprisonment for draft evasion she would have to live in Turkey as a single parent deprived of the company of her family. But he did not think this hardship made her return together with her husband insurmountable.
16. Mr Soorjoo has urged us to reach a different conclusion primarily because of the particular fact in this case that the couple would be separated for up to 3 years whilst he served his term of imprisonment for evading military service. As the Tribunal said in Hariri [2202] UKIAT 03557(in which Mr Soorjoo was also Counsel), we do not rule out in principle that compulsory military service, if too prolonged or repeated, could give rise to an Article 8 issue. However, the appellant in this case must have been fully aware when he entered upon this marriage that he might have to serve such a period of imprisonment upon return to Turkey. And the is no reason to think that whilst the appellant is in prison the couple cannot maintain some degree of contact through prison visits and correspondence. Although prison conditions in Turkey are plainly not the same as in the United Kingdom, it is noteworthy that the Court in Strasbourg has never seen, save in very exceptional circumstances, any disproportionate interference with the right to respect for private and family life to arise from the separation of a family caused by service of a lawfully imposed punishment.
17. These reasons were more than sufficient in our view to justify the adjudicator's decision to dismiss the Article 8 ground of appeal. Indeed we consider there was an additional reason for concluding that in this case the interests of the UK government in the maintenance of effective immigration control outweighed the appellant`s right to respect for private and family life. The imprisonment of up to 3 years was in punishment for failure to perform a duty which is considered part of the obligations a state can legitimately require its citizens to fulfil. The interests of the UK government in maintaining effective immigration control plainly extend to acting in a way that does not undermine the proper jurisdiction of other states over the lives of its own citizens. It is only in exceptional circumstances, such as those mentioned in Sepet and Bulbul and Foughali (00/TH/01514) (save for that of conscientious objection), that a claim based on risk arising from a refusal to perform military service is recognised as justifying the UK government in taking a decision whose effect is to prevent a draft evader being required to perform his legal obligations under the law of his country of origin.
18. For completeness we would note that, even had we been minded to accept that there were insurmountable obstacles to the couple continuing their family life in Turkey, it is clear from the judgment of the Court of Appeal in Mahmood [2001] INLR 1 and the decisions of the Tribunal in a number of cases beginning with Baljit Singh [2002] UKIAT 00660, that an Article 8 claim can still not succeed unless an appellant can show that there were exceptional circumstances justifying the appellant in not availing himself of the option of going back to Turkey on his own and applying for entry clearance as a spouse from there. Plainly in this case, the appellant would not be able to do that until he had completed his sentence of imprisonment for military service. However, for similar reasons to those we have already given when explaining why we do not think that this period of disruption of family life would cause disproportionality if the couple chose to resume their family life together in Turkey, we do not think that there would be any exceptional circumstances excusing the appellant from trying this alternative option. Indeed, if his wife was concerned about separation from other family members or inadequate medical and other facilities or scarcely seeing her husband apart from prison visits, that option might well cause less interference. However, whichever option the couple chose, the decision to remove this appellant was not a disproportionate one.
19. For the above reasons, this appeal is dismissed.

DR H H STOREY

VICE-PRESIDENT