United Kingdom Asylum and Immigration Tribunal

YD (Risk-Fazilet) Turkey [2002] UKIAT 04154

HX02089-2002

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 1 August 2002

Date Determination notified: 04 September 2002

Before
Mr M W Rapinet (Chairman) Mrs J Harris
Between

 

YD	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: Mr E Raw, Counsel, instructed by Chamberlain. For the respondent: Mr A Sheikh.
DETERMINATION AND REASONS
1. The appellant is a citizen of Turkey, who appeals, by leave of the Tribunal, against a determination of an Adjudicator (Mr Keith W Brown) dismissing his appeal against the respondent's decision to refuse asylum and to give removal directions to Turkey as an illegal entrant.

2. The appellant arrived in this country clandestinely in June last year and claimed asylum when he was arrested as an illegal entrant. The basis of his claim, is that he was a member of the Fazilet Party, which was a legal Party at the time that he was a member, but, in June 2001, was declared by the Constitutional Court of Turkey, to be banned for undermining Turkey's secular order.

3. The appellant was a farmer, though employed as an energy salesman selling wood and coal, and was Director of the Farmer Association in Nurdagi Town, from where his family comes. He was a member of the management committee of the Fazilet Party in that town. That committee used to meet at regular intervals of between two and three weeks with the aim of increasing membership of the committee and the number of persons in the Party entitled to vote.

4. On 1 May 2001, when one such meeting was taking place, the police raided the meeting and the appellant and four other people were taken into custody. They were detained for five days and maltreated. He was taken before the prosecutor who, after taking statements, released him on the condition that he signed on every week at the local police station. His home was raided on two further occasions, on 9 May and 15 May 2001 and on both occasions he was taken to the police station and detained for about five hours and he alleged that he was maltreated. He then decided to come to this country.

5. The Adjudicator has found the appellant to be credible, though he considers that he has exaggerated the degree of maltreatment he endured. He found that the appellant was released after the first arrest, because the authorities had no further interest in him, he having been questioned by the prosecutor and released, presumably on the orders of the prosecutor. He does not find that the three arrests and periods of detention give rise to a Convention ground.

6. He accepts that the Fazilet Party is now a banned political organisation and that on return, the appellant could be arrested and detained, because he has failed to carry out the reporting restrictions. He finds that the appellant would probably be released. In the alternative, he finds also that internal flight is available to the appellant, if he fears for his safety in Nurdagi.

7. Mr Raw put before us a helpful skeleton argument upon which he enlarged. He emphasised the fact that the appellant had been taken into custody on three occasions in a period of two weeks, and that he had been maltreated on each occasion. He emphasised the fact that the Fazilet Party was a legal party at this time. The appellant had only reported to the police on one occasion. He submitted that internal flight was not a viable proposition, because the appellant belongs to a prescribed party. He considered that the Adjudicator's findings, that the appellant would be arrested, but would subsequently be released erroneous. The appellant's previous arrest would be discovered, as would the fact that he has failed to report.

8. Mr Sheikh, in his submissions, pointed out that the appellant had been on the management committee of a small party in a provincial town. No evidence had been adduced against him and so he had been released. He referred us to annex E of the CIPU Report, which sets out various criminal offences arising out of anti-state activities, and points out that the appellant comes within none of the categories which carry any weighty sentence. There was nothing in the evidence to suggest the appellant would come to the attention of the authorities, were he to return, other than the question of his failure to report. The appellant has not committed a criminal offence, there is no evidence that he is wanted by the authorities. He drew our attention to the fact that Fazilet members of Parliament continue to operate as members of Parliament in Turkey, but are now treated as independents, their party being banned. No action has been taken against them by reason of their activities. He has not been active on behalf of any political party whilst in this country. The Fazilet Party have now splintered into a number of groups, which support the existing government, it is not a consequential party, save in provincial terms.

9. Mr Raw, in his final submission, reiterated the points he had made in his earlier submission.

10. The appellant's activities were perfectly legal at the time that he was detained. The Fazilet Party is not dedicated to the overthrow of the government. It is a party which is opposed to the secular order in Turkey. It would not appear that its aims are pursued by violent or illegal means, and it is successful in having a number of members elected to the Turkish Parliament. The appellant himself, was not involved in any material political activity. His functions on the management committee appeared to be limited to discussing with his colleagues on a regular basis, the means by which the party could expand, its membership and secure more votes at elections. It would not appear that he attended demonstrations or embarked upon any anti-government activities. It is hardly surprising therefore, that the prosecutor directed that the appellant should be released after his first arrest. Had any case been brought against him, it would have seemed more likely than not, that charges would have been dismissed. The appellant was doing nothing illegal. It is accepted that he was required to report to the police on a regular basis and he did so on only one occasion. It was accepted that the police took him into detention on two further occasions within a very short space of time, and on each occasion, he was detained for a matter of hours. It is apparent that the appellant was no more than a minor cog in the Fazilet Party Organisation. On the two occasions that the appellant was taken into custody following his release at the directions of the prosecutor, the police were no doubt acting over zealously and for no apparent, or legal, reason.

11. The report on the position of the party, as disclosed in CIPU (3.32) is interesting. It reads:

    "In June 2001 the Constitutional Court reached a decision in a case launched in May 1999, and banned the Virtue Party (Fazilet) for undermining Turkey's secular order. The decision fell short of the expected mass-expulsion of party members from Parliament. The Judges voted to expel only two Virtue Deputies, and most of the hundred remaining Deputies joined two new Successor Parties – the Felicity Party (Saadet Partisi) and the Justice and Development Party (Adalet Ve Kalkinma Partisi). The banning of Virtue was opposed by most legislators, including Prime Minister Ecevit, who contended that this exclusion of Virtue, would contribute to greater political instability at a time of financial crises. Recia Kutan said that the Felicity Party would seek to protect religious rights, but would not challenge the secular basis of the Turkish state."

12. It is not insignificant that the Constitutional Court's decision, was opposed by the majority of the legislature including the Prime Minsiter; it is not insignificant that a substantial number of members of Parliament continue in that capacity, without any problems with the authorities. It is apparent to us, that there is no policy by the authorities, and certainly the government, to pursue this Party and its membership. The Legislature and the Constitutional Court appear to be at odds, as to the value of this party within the Turkish political spectrum. Within the context of a small provincial town, when proceedings were already pending before the Constitutional Court as to the legitimacy of the Fazilet Party, it is not surprising that, on the basis of a tip off, police acted as they did. It is equally not surprising that the prosecutor took no action against the appellant and his colleagues. He gave, no doubt as a gesture towards the police, or the complainers, directions for a regular reporting to the police station.

13. It is important to place the position of this appellant within the context of the political spectrum of which he claims to be a part.

14. What would be the risks to the appellant upon return now? No warrant for his arrest has been issued, no charges were brought against him at the time that he was arrested. On the contrary, he was released with reporting restrictions. If he were to be returned, there would, no doubt, be a record of the detention on 1 May 2001. There would also be a record of the fact that he was brought before a prosecutor who directed that he be released and that no charges be brought against him. There would be a record of the reporting restrictions. We have considerable doubt as to whether or not there would be any record as to the subsequent two detentions. They were of short duration and probably improper, bearing in mind the prosecutors original release directions. He was not taken into custody for failing to report. Upon return, therefore, he could be questioned as the CIPU Report indicates a number of returned asylum seekers are. Disclosure would emerge of his previous detention, release, lack of charge and lack of any further action against him by the authorities. The offence which he has committed, namely that of failing to report, is comparatively minor and, bearing in mind the quotation from the CIPU Report given above, as to the view of the legislature with regard to the Constitutional Court's ruling on the state of this Party, we would have thought there was less than a reasonable likelihood that the appellant would be taken into custody by reason of his failure to report.

15. Mr Raw has argued that the appellant would not be able to continue his activities on behalf of the Fazilet Party. As we read the objective evidence before us, the philosophy of one of the two other parties that have now been formed, i.e. the Felicity Party, is to protect religious rights, but not challenge the secular basis of the Turkish state. This would appear to be very much in line with what the appellant was doing at the time he left the country. The Fazilet Party was based on a religious philosophy, namely it disapproved of a secular state. The Felicity Party is devoted to protecting religious rights, but not challenging the secular basis of the Turkish state. We would have thought that within the new political spectrum that has been formed following the Constitutional Court ruling, the appellant would find an organisation embracing the principles in which he believes which are perfectly legitimate, and he can continue to express any political or religious beliefs which he may retain. He certainly has not been active on behalf of the Fazilet Party, or any other political organisation whilst in this country; it would appear that there are alternative organisations sharing his philosophy which he can join when he returns. He is not wanted by the authorities, and was not politically active in any real sense of that phrase at the time he left. We cannot see therefore, that there is any reasonable likelihood of the appellant being persecuted upon his return.

16. The appeal is dismissed.

    M W Rapinet

    Vice President