United Kingdom Asylum and Immigration Tribunal

ar [2003] UKIAT 00039 O (Turkey)

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing : 5 March 2003

Date Determination notified:

15^th AUGUST 2003

Before:
Professor D B Casson (Chairman) Mrs S I Hewitt, JP Secretary of State for the Home Department

APPELLANT

and

RESPONDENT

Representation

For the appellant : Mr A. Sheikh, Home Office Presenting Officer

For the respondent : Mr P. Morris, counsel, instructed by Winstanley-Burgess

DETERMINATION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department against the determination of an Adjudicator (Mr P. Conway) allowing an appeal on asylum and human rights grounds by Mr Deniz Ozdemir, a Kurdish citizen of Turkey ('the claimant') against the decision by the Secretary of State of 2 May 2002 to give directions for removal to Turkey as an illegal entrant.
2. There is no record of the claimant's lawful entry to the United Kingdom. He claimed asylum by post on 8 March 2002 and said he had entered hidden in a lorry on 18 February 2002, having left Turkey with the help of an agent. He was undocumented and said he had never obtained a passport. He gave his date of birth as 20 March 1974 and said he was single. An asylum interview was held on 18 April 2002, and further representations and a nufus card were submitted, but the asylum application was refused for reasons given in a letter dated 29 April 2002.
3. The claimant said he was Kurd who had been accused by the army of helping PKK. He said he and his father used a van to deliver supplies to PKK; that in July 2001 the van was involved in an accident causing the death of his father and serious injury to him as a result of which he suffered memory loss. He said he was arrested on three occasions because of suspected involvement with PKK, first in 1999, second in 2000 and third in 2001. He said he was tortured on all three occasions and then released after two or three days without charge. Because of these events and his belief that he was under surveillance, he decided to leave the country.
4. In the refusal letter the Secretary of State attacked the claimant's credibility. The memory loss asserted was described as very selective. He said he was unable to remember the dates on which he had been detained and tortured, but he was able to remember the length of detention, the reason for it and exactly what torture he had faced on each occasion. He was also able to remember the exact date of the accident and the dates on which he joined and left the army.
5. At the hearing of his appeal before the Adjudicator the claimant and his aunt both gave what is described as brief evidence. Another witness said he had known the claimant's family in Turkey and that his father had been a PKK supporter. The claimant told the Adjudicator he was still suffering from the effects of the road accident. He could not remember giving a statement to his representative; nor could he really remember his interview and how many times he had been detained or when. He did recall that he had been detained for helping PKK. His activities had included taking provisions to them.
6. The Adjudicator considered a report by Craig McNulty, a consultant criminal psychologist, and a statement by Zafer Yoruk, a bi-lingual legal clerk with Winstanley Burgess, describing how the claimant's statement was taken.
7. The Adjudicator saw no reason to doubt the truthfulness of the account on core matters, and accepted that the claimant had left Turkey because he was in fear. On the issue of return, the Adjudicator considered background documentation and noted a document submitted for the claimant which showed that 'wherever a person moves in Turkey they are required to register with the local mukhtar or the local authority who will conduct security checks on that person with the local security forces.' The Adjudicator found at paragraph 28:

'It seems to me likely that as a Kurd, known for his family's political activity and because of his own detentions by the Turkish authorities, any report by the local security forces would be likely to be unfavourable.'

8. The Adjudicator found that checks which had been made on arrival in Turkey would inevitably reveal the claimant's record of detention and those of his family, which led to a reasonable likelihood of ill-treatment amounting to persecution at the airport or later.
9. Before us, Mr Morris for the claimant confirmed that no medical report had ever been adduced in this case. Mr McNulty is a clinical psychologist, and not a psychiatrist. Mr Morris also confirmed that a bi-lingual clerk at Winstanley-Burgess had helped to compile the claimant's statement and that, as recorded at paragraph 6 of the determination, the claimant said he could not remember giving a statement to his representative.
10. In his submissions, Mr Sheikh for the Secretary of State said that the Adjudicator had failed to give an adequate explanation for his finding that the claimant was in fear of the authorities when he left Turkey; he had failed to consider the fact that on his own evidence the claimant had remained in Istanbul without difficulty for at least five months before his departure and he had failed to consider all the evidence as to risk on return. The claimant had no criminal record but was released without charge on each of the occasions of his brief detentions; the Adjudicator appeared to accept Mr McNulty's evidence that the claimant had a cognitive ability consistent with performance of a person with a mental handicap, but failed to explain why the Turkish authorities would have an adverse interest in such a person. The Secretary of State maintained his submission that the claimant's memory loss remained selective. Mr Sheikh invited us to consider how the claimant could produce a very detailed witness statement in view of what he had said to the Adjudicator, as recorded at paragraph 6 of the determination, and in light of the psychologist's opinion. The Adjudicator had failed to consider why the Turkish authorities would have an adverse interest in a person who appeared to have a mental handicap, or why such a person would be perceived to pose a threat.
11. In his submissions Mr Morris referred to a detailed skeleton, and said the Adjudicator had properly taken into account all the evidence before him. He had accepted the appellant's evidence, and made 'what he chose' of the witness statement before him. Mr Morris submitted that torture was still widespread in Turkey, and that it would be unduly harsh for the appellant to relocate.
12. This is a case with unusual features. It is the claimant's story that he was severely injured in a road accident in July 2001 and suffered memory loss as a result. Although no medical evidence has been produced, Mr McNulty prepared a report dated 14 June 2002, the contents of which have not been challenged. Mr McNulty said that the appellant's score on a test designed to provide a general estimate of cognitive ability (IQ) the appellant's score was consistent with that for a person with mental handicap. The Adjudicator said:

'Mr McNulty notes that at interview with him the appellant appeared to have difficulty answering very basic questions: he did not know his correct age and could not calculate it from his date of birth; he did not know the correct date and month, although he knew the year was 2002; he was able to count up to ten, but was unable to count upwards in threes …'

13. At paragraph 6 of his determination, which Mr Morris accepted as a correct record, the Adjudicator said:

'In brief evidence the appellant said he was still suffering from the effects of the road accident. He could not remember giving a statement to his representative nor could he really remember his interview and how many times he had been detained or when. He did recall that he had been detained for helping the PKK. His activities had included taking provisions to them.'

14. That evidence was given at the hearing on 13 August 2002. It must be considered in the light of a written statement consisting of fourteen paragraphs giving a detailed account of his circumstances and alleged experiences in Turkey. The statement is undated but another statement in the name of Zafer Yoruk, a bi-lingual legal clerk with Winstanley-Burgess, says that he took the claimant's statement 'in February 2002', some six months before the hearing. Mr Yoruk says:

'He told me that his memory had been severely affected by his father's death and his subsequent detention and ill-treatment by the gendarmes. He had particular difficulty in remembering dates. I therefore had to work out with him the date he started school and the date he left school by asking him the age he started school and if he completed the primary education. Children in Turkey normally start school when they are seven years old and the primary school education is compulsory for five years. This way I worked out with the help of Deniz the year he began school and the year he completed. The same applies to the military service. I asked him if he went to the military service when he was twenty which is the normal age for military service in Turkey and Deniz confirmed this. I also asked him if he served the normal time which is eighteen months and he confirmed this. I therefore worked out that he began military service in 1994 and completed his service in 1996. He also told me that he went to visit his grandfather a year after his military service (par. 4) and I wrote down the date of this visit in his statement as 1997.'

15. As we have said, the claimant's statement gives a very detailed account of his alleged experiences. There must be some uncertainty as to the date it was made, since, at paragraph 5, it corrects what is said to be an error in the interview at the Home Office. The date recorded for that interview is 18 April 2002. We have no reason to disagree with the Secretary of State's comment that the memory loss appeared to be very selective. The claimant told the Adjudicator that he could not remember giving a statement to his representative and could not really remember his interview or when and how many times he had been detained. In our judgment, the Adjudicator was not entitled to find that the evidence given in the circumstances we have described was of sufficient reliability to be accepted within the Karanakaran criteria. We regard the Adjudicator's decision that he had 'no reason to doubt the truthfulness of the account on core matters' as unsustainable. The Adjudicator should have found that the claimant had failed to establish his account on the established standard of proof. Even, however, if he was entitled to make a positive credibility finding, we accept Mr Sheikh's submission that there is nothing in the background documentation to sustain a finding that a person having a cognitive ability consistent with performance for a person with a mental handicap would be of adverse interest to the Turkish authorities on return, or that the authorities would perceive such a person to be a threat.
16. We consider the position further on the basis that the Adjudicator was, contrary to our view, entitled to accept the claimant's account. Mr Sheikh submitted, relying on the grounds of appeal, that the Adjudicator failed to give an adequate explanation for his finding that the claimant was in fear of the authorities when he left Turkey; he said he had been last detained in July 2001 and was released after three days being, he said, under surveillance for about a month. He then moved to Istanbul, where he remained undisturbed for at least five months. The Adjudicator failed to consider whether this was consistent with a subjective or objective fear. We accept Mr Sheikh's submission that, given that the claimant had no criminal record and was released without charge after each of his detentions, there is no basis for the view that he would be at risk on return. Paragraph 6.88 of CIPU November 2002 states that there are no indications that Turkish nationals are persecuted in Turkey purely because they applied for asylum abroad. The Turkish authorities are aware that many citizens leave the country for economic reasons and apply for asylum elsewhere. Paragraph 6.97 states that Turks who are without passports are returned on one way emergency travel documents which are issued by the Turkish consul general in London. Paragraph 6.100 states that being of Kurdish origin does not in itself constitute a higher risk of inhuman treatment. Everything depends on the individual and his activities in Turkey and abroad. We do not accept that this claimant's declared experiences indicate that he left Turkey in fear of persecution or breach of protected human rights, or that his return to Turkey would expose him to such a risk.
17. The appeal by the Secretary of State is allowed.
D.B. CASSON ACTING VICE PRESIDENT