United Kingdom Asylum and Immigration Tribunal

SA (GBTS Records) Turkey [2004] UKIAT 00229

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 31 March 2004

Date Determination notified: 28 April 2004

Before
Mr P R Lane, Vice President Mr P Rogers JP Mrs J Holt
Between

 

SA	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr A Zaidi, Counsel, instructed by Messrs Ahmed & Co Solicitors For the Respondent: Mr A Hutton, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant, a citizen of Turkey, appeals with permission against the Determination of an Adjudicator, Mr M Cullum, sitting at Taylor House, in which he dismissed on asylum and human rights grounds the Appellant's appeal against the decision of the Respondent on
   9 May 2001 to give directions for the Appellant's removal from the United Kingdom.
2. The Appellant, born in 1978, is a Turkish national of Armenian ethnicity. He worked as a hairdresser from 1991 to 1998 and then completed his military service. He arrived in the United Kingdom clandestinely with his wife in February 2000. The couple now have a child, born in the United Kingdom, who is (like the wife) a dependant on the Appellant's claim.
3. The Appellant told the Adjudicator that he had been detained on three occasions:-

(a) in May 1996, for five days, following his attendance of a May Day celebration in Istanbul. He was questioned about his links with the DHKP-C and beaten by the police. He was released without charge;

(b) on 5 March 1998, for three days, after attending a march to protest against extrajudicial killings in Turkey. Again, he was beaten and then released without charge;

(c) in November 1998, for five days, following his participation in a march to protest against the Turkish government's failure to provide adequate aid after an earthquake. On this occasion the Appellant said that he was "told by the police that he would spend the rest of his life in prison and once more he was brutalised and released without charge" (determination ,paragraphs 16-18).

4. The Adjudicator, at paragraph 19, records that "the Appellant remained undeterred as to his low-level activities in support of DHKP-C". However, the Appellant said that what caused him to leave Turkey was a raid on his home on 24 January 2000, when he was not present. His wife, he said, was detained for one night by the police who appeared "to use her in order to entice the Appellant to the police station". When that did not work, the police released her. However, during her time in detention the Appellant's wife was said to have been "sexually assaulted and harassed" (paragraph 20).
5. Following this, the Appellant paid an agent to bring him to the United Kingdom.
6. Whilst here, the Appellant told the Adjudicator that he had had telephone contact with his family in Turkey who "have revealed that the police have enquired three times about him at his house at the beginning of 2003" (paragraph 23).
7. At paragraph 33 of the determination, the Adjudicator begins his findings of fact and credibility. He found first that it was not credible that the Appellant, as a sympathiser of the DHKP-C, would have been unaware of least of allegations that the organisation he purported to have sympathised with had been involved in various atrocities. The Adjudicator had noted at paragraph 24 how the Appellant had told him that the DHKP-C "is a non-violent organisation". It was submitted on his behalf that the Appellant could have been forgiven for not knowing this "because of his mistrust of the Turkish media".
8. The Tribunal finds that the Adjudicator was entitled to discount the explanation put forward on behalf of the Appellant. At Annex C of the October 2003 CIPU Report on Turkey, there is a section on the DHKP-C. It is a Marxist-Leninist organisation which has the avowed aim of seeking to overthrow the existing Turkish system of government by armed revolution.
9. At paragraph 35, the Adjudicator concluded that the Appellant's lack of knowledge of the DHKP-C "either reflects a lack of interest in that organisation or an especially low level involvement with it". A reading of the paragraphs of the determination that follow makes it plain that the Adjudicator came down in favour of the second possibility. In essence, the Adjudicator concluded that there was a reasonable likelihood that the Appellant had been detained at, or in the immediate aftermath of, various marches and demonstrations. That the Turkish authorities may have observed some linkage between the Appellant's presence at these various gatherings and a sympathetic attitude on his part toward the DHKP-C is acknowledged by the Adjudicator at paragraphs 46 and 47. At paragraph 46, the Adjudicator accepts that the Appellant "may have previously been detained by the police" and that as a result "it must be a possibility that he was at the same time beaten by the police having been detained as a political opponent". The following paragraph reads as follows:-

"47. However, I do not accept that the Appellant was and indeed is of ongoing interest to the authorities. He was possibly interested in DHKP-C but certainly was not a member and displays insufficient knowledge of that organisation's activities to be considered a real active supporter".

10. The Tribunal is in no doubt that the Adjudicator was entitled on the evidence to that finding. What flows from it, in terms of risk on return to Turkey, we shall consider in due course.
11. These three detentions were, in fact, the only parts of the Appellant's account of his experiences in Turkey that the Adjudicator was prepared to believe. The Adjudicator specifically disbelieved both the account of the raid on the house in January 2000, and the consequent ill-treatment of the Appellant's wife.
12. At paragraph 37, the Adjudicator gives two reasons why he did not believe the account of that raid. First, if the purpose was, as the Appellant suggested, to hold the wife in order to entice the Appellant himself to the police station, the Adjudicator considered it incredible that the authorities would release the wife after as short a period as 24 hours. In this regard, the Adjudicator noted that the Appellant himself had been held for between three and five days, during his three detentions. Secondly, the Adjudicator found there to be "no suggestion that the wife of the Appellant deserved detention" in her own right. Finally, "there is no suggestion of any specific activity by the Appellant that would cause there to be a raid on his house. Each time previously that he had been detained the Appellant had been identified as being involved in a demonstration and had been detained specifically for that involvement".
13. For the Appellant, Mr Zaidi submitted that, according to the Appellant's statement, he had been continuing his admittedly "low level" (page A24) DHKP-C activities and "DHKP-C members conducted their meetings at my house but I never participated in these meetings" (A25/26). Thus, Mr Zaidi submitted that the police could well have had a reason to raid the house in January 2000.
14. The Tribunal does not consider that there is anything in the Appellant's statement, from which we have just quoted, that prevented the Adjudicator, as a matter of law, from finding at paragraph 37 that "there is no suggestion of any specific activity by the Appellant that would cause there to be a raid on his house" (our emphasis). In any event, it was plainly not irrational of the Adjudicator to conclude that, if the police had been serious about trying to "entice" the Appellant to the police station, they would not have released his wife after so short a period of time as 24 hours. In conclusion, the Adjudicator at paragraph 37 of the Determination has, we find, given legally sustainable reasons for his finding that the alleged events of 24/25 January 2000 never occurred.
15. The Tribunal also consider that the Adjudicator was fully entitled to disbelieve the assertion that, in early 2003, the police in Turkey went to the family home on three occasions, to enquire about the appellant's whereabouts. Given the Adjudicator's quite justified findings as to only very low level involvement with DHKP-C demonstrations, and his rejection of the account of the raid on the house in 2000, it is simply not credible that, some three years later, the police would start to enquire about him.
16. On the basis of his findings of fact, which we have concluded the Adjudicator was permitted to make, would the Appellant today be at risk on return to Turkey?
17. The Adjudicator concluded that he would not. Having considered the factors regarded by the Tribunal in Hayser [2002] UKIAT 07083, as potentially relevant to risk on return, the Adjudicator noted that, in addition, the Appellant "does not have a valid Turkish passport":-

"50. This clearly means that the Appellant will be detained at the airport but by my finding would not be at any real risk of being transferred to the Anti-Terror Branch of the authorities. Were this to be the case then it appears that there would be a real risk of the Appellant being tortured or at least receiving treatment in breach of his human rights.

51. The Appellant by my finding falls into the category of returned failed asylum seeker that would undergo the unpleasant and no doubt distressing initial investigation and assessment by the Turkish authorities but who would be released without difficulty thereafter".

18. As the Tribunal has recently observed at paragraph 28 of the determination in O (Turkey) [2004] UKIAT 00038 , an enquiry in relation to risk on return in Turkish cases has in recent years focussed on what is reasonably likely to happen to a Turkish citizen removed from the United Kingdom, upon his or her arrival at Istanbul airport. The Tribunal in that paragraph made reference to the case of Acdog [2003] UKIAT 00034 , where it was generally accepted that immigration officials at Istanbul airport have access to the Central Information System, known as the GBTS, upon which personal data is stored.
19. At the time of the hearings in Acdog, the general assumption was that the GBTS held records of individuals who had at any time been detained by the Turkish authorities, whether or not as a result of an arrest warrant, and whether or not the individual concerned had ever been charged with an offence.
20. As a result of information made available to the United Kingdom government by the Turkish government in September 2003, the October 2003 CIPU Report on Turkey provides, at paragraphs 5.39 to 5.43, detailed information as to the extent of the material recorded on the GBTS. According to the Turkish government, the GBTS does not contain data regarding detentions of the kind we have just described. An analysis of the relevant provisions of the CIPU Report is to be found at paragraphs 30 to 38 of the determination in O (Turkey).
21. In the present case, Mr Zaidi quite properly acknowledged that the three detentions suffered by the Appellant were also of this kind. Accordingly, if the GBTS was the only information system available to the immigration authorities at Istanbul airport, those detentions would not cause the Appellant to be recorded on it.
22. On behalf of the Appellant, a "Note on GBTS (Turkey's General Information Gathering System)" by David McDowall has been submitted to the Tribunal.
23. As footnote 1 to this Note states, Mr McDowall is a specialist in Middle East Affairs with a particular interest in the Kurds. He is the author of numerous publications on the Kurdish question as well as the author of a report published by Asylum Aid entitled "Asylum Seekers from Turkey: The Dangers They Flee". In addition he "has prepared reports regarding the background of at least 300 asylum Appellants over the past four or five years". As the Tribunal in Kaya (HX/47165/2001) observed in 2002, Mr McDowall has "a distinct anti-government viewpoint". Clearly, there is nothing wrong in that. It does, however, mean that Mr McDowall is not (and no doubt would not seek to categorise himself as) an expert witness in the sense in which that term is understood in other civil proceedings. His Note does not contain any "expert witness statement" acknowledging a duty to the Tribunal. In essence
    Mr McDowall's Note is a piece of written advocacy on behalf of the Appellant, albeit of a generalised nature, whose purpose (as stated on page 1) is "to express doubt" regarding the inference in the October 2003 CIPU Report that the GBTS forms "the basis for screening returned asylum seekers on re-entry to Turkey… or that it is likely to be the principal means of screening these returnees". Again, there is nothing wrong in this. It is, however, important to be aware that, whilst Mr McDowall may be a well-informed observer on Turkish (and especially Kurdish) matters, he is also a partisan one.
24. At page 3 of the Note, Mr McDowall poses the question of "whether the filter as applied by GBTS (as described here) is in itself sufficient to serve Turkey's security needs. My own view is that it is not. Either GBTS covers a much wider range of security interest or the security forces operate another computerised screening system including recourse to individual police and gendarmerie stations across Turkey".
25. The passage which immediately follows is worth quoting in full:-

"We are informed, for example, by the Human Rights Foundation of Turkey (THIV), noted for its scrupulous handling of data, that those who enrolled in the supposedly voluntary village guard system, and those villagers and villages that refused to enrol were duly listed by JITEM (gendarmerie intelligence). This means that all those who desert or refuse service in the village guards are supposedly on record, even though service in the village guard system is voluntary and even though it is completely apart from compulsory military service. We also know, to consider another example, that Turkish security keeps a very close eye on Kurdish ex-patriot communities in the European Union. It would be extraordinary if it did not. After all, ever since the foundation of the first Kurdish newspaper, Kurdistan in Cairo in 1895, Kurdish ex-patriots have provided vital intellectual and ideological stimulus for the Kurdish nationalist movement. Moreover, there seems to be a universal conviction, and possibly evidence, that the PKK operated an effective money raising operation that may have amounted to blackmail among Kurdish ex-patriots. Turkish security can obtain information by penetrating ex-patriot community organisations and also by interrogating returned asylum seekers believed to have frequented such organisations. It strikes me as very unrealistic to suppose that Turkish security does not use both these methods. The evidence of case studies of returnees in ASFT2 Appendix A6 does indeed suggest that interrogation of returnees with this purpose in mind does happen, although we do not know how consistent it is.

It is for such reasons that I believe some wider "lens" than GBTS (as described) must be used. It is possible that the third category [of cases said to be registered in the GBTS: see paragraph 35 of O ([Turkey)] covers this much wider latitude. There must be a very substantial number of suspected Kurds and Leftists against whom there may be nothing specific, beyond being reckoned to be sympathetic to Kurdish or Leftist groups, but who are strongly suspected of knowing information that is wanted by the security forces. Can one really assume they will not be on a list easily accessible while filtering incomers to Turkey? One would certainly not expect the Turkish security system to be candid publicly regarding the filter it applies to the movement of persons across boundaries".

26. It is important to keep in mind the central question in this case and, indeed, many other similar cases involving Turkish citizens that come before Adjudicators and the Tribunal. Is it reasonably likely (or, to adopt Mr McDowall's own central question, does it serve Turkey's security needs) for computerised records to be kept available for use at Istanbul airport regarding the detention, without arrest or charge, of a person with a low-level political profile?
27. At paragraph 5.38 of the October 2003 CIPU Report reference is made to material contained in Mr McDowall's "Asylum Seekers from Turkey II" (2002):-

"5.38 In its report for 1998, the Turkish Human Rights Organisation Mazlim-Der reported that out of 35,914 people whom it knew who had been taken into detention the number of people actually arrested was only 1,279, approximately 3.5% of those detained. A large proportion of detentions at police stations appear to go unrecorded in a formal sense. Statistics, which are not comprehensive and which merely record cases which would come to the notice of various human rights organisations, indicate that over 95% of people detained by the police in 1998 and 1999 were released without charge. It is only once a defendant has been formally charged/arrested that he is able to get access to documents relating to his case. Anyone who has been detained and released without charge will be unable to prove it without any form of documentary evidence".

28. At paragraph 6.20 of the October 2003 Report reference is made to certain Turkish human rights groups reporting that Turkish law enforcement officials do not register suspects when they are initially taken into detention, "the allegation being that if a suspect should die during questioning then there will be no record of them having been detained". Although the Turkish government in 1998 instituted a system of detention registers "Turkish NGOs have complained that the provisions are frequently ignored".
29. At least one of the reasons set out above for the police not keeping records of detainees hardly puts those authorities in a good light. The inescapable conclusion is, however, that in a case such of that with which we are concerned, it is highly unlikely that any record of the Appellant's detention will have been kept in any form at all, let alone that it is kept on the centralised computer system available to immigration officials (see also paragraph 62 of O (Turkey)).
30. What Mr McDowall has to say about information regarding the village guard being listed on JITEM is both somewhat beside the point and vague. Mr McDowall refers to information on those who refuse to perform such service being "supposedly" on record. Even if it is on record, we are told nothing as to what the nature of that record might be.
31. Likewise, in the context of the precise question to be answered in the present case, what Mr McDowall has to say about Turkish security keeping "a very close eye on Kurdish ex-patriot communities in the European Union" is, again, beside the point. Like any other government, the Turkish authorities no doubt do their best to monitor the activities abroad of those who pose a real threat to the security of Turkey. As Mr McDowall himself says, it would be extraordinary if they did not. Having said this, there appear to be significant limits in practice on the extent of any such monitoring. The CIPU Report has this to say on the matter:-

"5.71 The Turkish Intelligence Agency, MIT (Milli Istihbarat Teskilati, National Intelligence Organisation) allegedly keeps close tabs on political activities against Turkey. Given manpower constraints, routine surveillance by the MIT seems to concentrate on leading figures. Information on people of lower rank is apparently obtained by 'chance'".

32. But none of this in any way leads to the conclusion that it is reasonably likely that computerised records are available at Istanbul airport in respect of persons detained and released in the circumstances of the present Appellant. There is no evidence whatsoever that he has done anything whilst in the United Kingdom that might attract the adverse attention of the Turkish Intelligence Agency. Using Mr McDowall's own words, there is nothing in his background to suggest that the Appellant is "strongly suspected of knowing information that is wanted by the security forces". In short, this Appellant is simply not going to feature on a list of persons wanted by the security forces.
33. A good deal of the remainder of Mr McDowall's Note is given over to describing alleged inefficiencies in the GBTS, as a result of which people whose cases featured on it tend to remain on it. Again, that has no bearing upon somebody who, like the Appellant, would not be on the system in the first place.
34. Likewise, it is impossible to put any significant weight on Mr McDowall's statement at page 5 of the Note that "I have also consulted Amnesty International and my impression is that it believes that the GBT system is highly arbitrary. While genuine suspects might be on the list, others might be omitted". The reference to genuine suspects in the passage is imprecise but in any event would not appear to contradict what is recorded in the October 2003 CIPU Report regarding the data held on the GBTS (which includes those who are subject to "in absentia" warrants).
35. The following passage of the report supports what the Tribunal say at paragraphs 61 to 63 of O (Turkey):-

"Furthermore, I understood it also to be AI's distinct impression that one might pass through immigration control and a computer check, only to be harassed and possibly detained and tortured somewhere else in Turkey, usually one's neighbourhood of former residence. I also understood from AI that it is possible to live for years without any problems and then for no apparent reason to hit problems, for example after moving elsewhere".

36. The only place in Mr McDowall's Note which comes close to directly contradicting the information in the CIPU Report, derived from the Turkish government, is at page 8, where a Hayri Zarer Korknaz, described as "ex-para-legal Baker & Co" is quoted as asserting that "Where the person detained is alleged to have been politically active or is otherwise perceived as an opponent of the State, it is practice for their detentions to be recorded on the GBT."
37. No information regarding the background and qualifications of Hayri Zarer Korknaz is given, save that he appears to be associated with the Kurdish Human Rights Project.
38. As the Tribunal observed in O (Turkey) (paragraph 54), it is difficult to see what motivation there might be in the Turkish government deliberately misleading the United Kingdom government as to the question of whether detainees who are not arrested or charged feature on the GBTS system. In any event the category of persons "alleged to have been politically active or… otherwise perceived as an opponent of the state" is vague in the extreme. In particular, it leaves open the criteria by which the Turkish authorities decide how a person met the necessary requirements It does not by any means follow that a person who is briefly detained and then released without charge will, as such, fall within that category.
39. In short, the passage at the top of page 8 of the Note casts no significant doubt on the information in the October 2003 CIPU Report regarding the nature of the GBTS system. Nor does anything under the heading "Anecdotal evidence" towards the end of the Note.
40. Accordingly, on the facts as found by the Adjudicator in the present case, the Adjudicator was, we find, right to conclude that there was no reasonable likelihood of the Appellant, upon arrival in Istanbul, being transferred to the Anti-Terror Branch where there would be a real risk of torture.
41. That, however, is not the end of the matter. We must determine whether there is a real risk that the Appellant would face persecution, were he to return to his home area and, if so, whether it would be unduly harsh to expect him to relocate to some other part of Turkey.
42. Given that the Adjudicator found the Appellant's three detentions to be directly related to his participation in marches and gatherings, and given his rejection of the Appellant's assertion that the police have recently been looking for him, we do not consider that there is a real risk of his coming to the adverse attention of the Turkish authorities in his home area, should he return there. The position might, of course, be different if the Appellant could show that he would be reasonably likely to re-kindle any interest he may have had in the DHKP-C and attend gatherings which it had organised or at which it was in some way represented. There is, however, an absence of evidence to show that such a course of action on the part of the Appellant is likely. He has, after all chosen to end all association with the DHKP-C, however tangential that may have been, by leaving Turkey. There is no evidence that, whilst in the United Kingdom, he has taken part in any ex-patriate DHKP-C activities or even kept in touch with DHKP-C people in Turkey.
43. Even if we are wrong about that matter, however, the Appellant has available the option of internal relocation.
44. In this regard, it is important to remind ourselves that the Appellant is an ethnic Armenian. Paragraph 6.161 of the CIPU Report observes that "there are about 50,000 Armenians in Turkey, including Gregorians, Protestants and Catholics, most of whom live in Istanbul". There is no indication in the CIPU Report that Armenians are subject to discrimination. Indeed, the Appellant himself (at page 10 of the Tribunal bundle) accepts that Armenian rights are respected in Istanbul.
45. Mr Zaidi acknowledged that large numbers of persons (in particular Kurds) currently live within Turkey, without having formally registered their presence. He submitted, however, that the Appellant, as a married man with a young child, would not be able to exist elsewhere in Turkey, on an unregistered basis, since failure to register would mean that the family would have no access to health or education services. In this regard, he referred to a passage (page 72 of the Appellant's Adjudicator bundle) from
    Mr McDowall's "Asylum Seekers from Turkey II" report.
46. Mr McDowall states that not carrying an ID card renders the offender liable to three days' detention. However, obtaining such a card involves registering with the neighbourhood muhtar or headman. According to one muhtar "the ID office has a list of 'wanted' persons, supplied by the police. If a name comes up as 'wanted' the police are informed. Notification is also passed to the police or gendarmerie at the place of birth. It is not only the officially 'wanted' category that is liable to detention. Many others are detained on suspicion. Not being on the 'wanted' list in no way implies one is safe".
47. A close reading of this part of Mr McDowall's report, however, fails to disclose a real risk or reasonable likelihood that a person in the position of this Appellant, were he to register with a muhtar in, say, Istanbul, would find himself subjected to serious ill-treatment by the authorities.
48. There is scant evidence as to what a muhtar is required to do, when faced with an application for registration. In particular, there is only some slight anecdotal evidence that the muhtar would notify the police or gendarmerie at the place of birth that an application has been made. Even if that happens, however, we are back to the point mentioned earlier: namely, it is unlikely that any actual record will exist of the Appellant's having been detained by the police. Accordingly, any risk would seem to depend upon those local police who might be consulted remembering having detained the Appellant several years previously, and upon those police transmitting that information to the muhtar. What the muhtar then does with that information is itself speculative.
49. In conclusion, the Tribunal finds that the Appellant could register himself and his family in Istanbul, without real risk of persecution or Article 3 ill-treatment.
50. The appeal is dismissed.

P R LANE

VICE PRESIDENT