IK (Returnees - Records – IFA) Turkey CG  UKIAT 00312
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 6, 7, 8 & 19 October 2004
Date Determination notified: 2 December 2004
BeforeMr S L Batiste (Vice-President)
|Secretary of State for the Home Department||APPELLANT|
DETERMINATION AND REASONS
A summary of our conclusions appears at the end of the determination
History of this Appeal
1. HX/27475/2002 AO
2. AS/06367/2004 MA
Facts of this Appeal
"The relevant question is whether he would as of today be at risk of persecution were he to be returned. This [Respondent] has by his own account been released without charge and has not come to the attention of the authorities for many years since. I am satisfied that he has been detained and questioned on suspicion of assisting the PKK. The reports show that computerised records are kept by the authorities, and so this fact is likely to be discovered by the authorities at the airport, even though he has not been charged with any offences. Suspicion of sympathies with and assisting the PKK is enough to place him at risk on return to Turkey, and he is not one of those returnees who would simply be questioned and released. Paragraph 5.85 of the CIPU states that the Dutch Ministry of Foreign Affairs notes that PKK sympathisers "risk being insulted, threatened, maltreated or tortured during questioning"."
"The Adjudicator erred in reaching the conclusion that the Respondent has a well founded fear of persecution on return to Turkey, and that, for the same reasons, the Respondent's appeal under Article 3 ECHR should be allowed (see paragraphs 19-25 of her determination). The Adjudicator's reasoning is inadequate in this regard, most particularly in the following respects:
(i) having found, as she was entitled to do, that computerised records are kept by the authorities, the Adjudicator concluded that the fact that the Appellant had twice been detained and questioned would be discovered by the authorities at the airport. However, she identified no material capable of supporting the conclusion that brief detentions of the sort described by the Respondent would be recorded on computerised records and revealed by checks at the airport;
(ii) moreover, the Adjudicator failed to give adequate consideration to the question of whether there existed "reasonable grounds for believing" or "a real risk" that the Respondent would face persecution or treatment in breach of Article 3 ECHR if checks at the airport did reveal that he had twice been detained, some five years previously, in the circumstances he described. In this respect it was significant that the Respondent had stated (as to the first detention) "….TIM forces (special private security forces) attacked the village. They took all young people to the police station. I was one of them….". As to the second detention, the Respondent stated "on 18 December 1997 the military took all young males to the mountains". On both occasions the Respondent was amongst those released without charge."
The Country Guidance of the Tribunal - A (Turkey)
"7. The background evidence is that torture continues to be endemic in Turkey. Thus we find the following in the US State Department report for 2003 at pages 1-2:
"Security forces continued to commit unlawful killings, including deaths due to excessive use of force and torture. Torture, beatings and other abuses by security forces remained widespread, although the number of reported cases declined. There were reports that police and Jandarma often employed torture and abuse detainees during incommunicado detention and interrogation. The lack of universal and immediate access to an attorney, long detention periods for those held for political crimes, and the culture of impunity were major factors in the commission of torture by police and security forces. The rarity of convictions and the light sentences imposed on police and other security officials full killings and torture continued to foster a climate of impunity."
8. Again at paragraph 6.1 of the April 2003 CIPU report (this is the current report of the one to which we shall refer) the following is stated:
"There have been numerous reports by human rights organisations of systematic use of torture by security forces, deaths in police custody, disappearances and extrajudicial executions."
At paragraph 6.2 is recorded the view of the UN's Special Rapporteur following a visit to Turkey in 1998 that the practice of torture in numerous places around country might well deserve the categorisation of systematic in the sense of being a pervasive technique of law enforcement agencies for the purpose of investigation, securing confessions and intimidation."
"13. From this, we conclude that there have been steps in the right direction in improving human rights in Turkey, though we consider there is some force in the point made by Mr Grieves that there have been no significant signs of implementation of the reforms which have little benefit to individuals potentially at risk."
"23. With these background matters in mind we move on to consider the specific situation of risk on return to Turkey. Mr Grieves argued that this was the essential point at which if problems were going to occur they would occur. He based this upon the existence of the central information system usually abbreviated as GBTS, which is available to the Turkish state….. It is said that the system stores various personal data, including information on outstanding arrest warrants, previous arrests restrictions on travel abroad, possible draft evasion or refusal to perform military service and tax arrears. Sentences which have been served are in principle removed from the system and entered in the national accessible judicial records…… [Reference was then made to the relevant paragraphs in the then current CIPU report concerning the treatment of returned asylum seekers.]
25. In the light of this evidence, Mr Deller (for the Secretary of State) very helpfully made it clear that he accepted that the computer system exists as recorded and that interrogations at the border take place. He also accepted that if there was reason for a person to get into the hands of the Anti-Terror Branch then there was a risk of torture….
42. It will be clear from our assessment of the general issues above that we agree that there is a real risk that any history a person has of previous arrests, outstanding arrest warrants, criminal records or judicial preliminary enquiries or investigations by the police or Jandarma will be contained on the GBTS computer system. The typical returned Turkish asylum seeker will be travelling either on no documents or one-way emergency travel documents, which we accept may place the authorities on notice that they return as someone who has sought asylum and has been unsuccessful. If however the claimant holds a current valid Turkish passport it is significantly less likely that this perception will arise.
43. Assuming possession of only a temporary travel document, it is likely that the returnee will be detained for interrogation at the point of entry while enquiries are carried out by them because they are identified as being a failed asylum seeker who may therefore have a history, or if the GBTS computer records reveal information regarded as relevant.
"46. The following are the factors which inexhaustively we consider to be material in giving rise to potential suspicion in the minds of the authorities concerning a particular claimant.
a) The level if any of the appellant's known or suspected involvement with a separatist organisation. Together with this must be assessed the basis upon which it is contended that the authorities knew of or might suspect such involvement.
b) Whether the appellant has ever been arrested or detained and if so in what circumstances. In this context it may be relevant to note how long ago such arrests or detentions took place, if it is the case that there appears to be no causal connection between them and the claimant's departure from Turkey, but otherwise it may be a factor of no particular significance.
c) Whether the circumstances of the appellant's past arrest(s) and detention(s) (if any) indicate that the authorities did in fact view him or her as a suspected separatist.
d) Whether the appellant was charged or placed on reporting conditions or now faces charges.
e) The degree of ill treatment to which the appellant was subjected in the past.
f) Whether the appellant has family connections with a separatist organisation such as KADEK or HADEP or DEHAP.
g) How long a period elapsed between the appellant's last arrest and detention and his or her departure from Turkey. In this regard it may of course be relevant to consider the evidence if any concerning what the appellant was in fact doing between the time of the last arrest and detention and departure from Turkey. It is a factor that is only likely to be of any particular relevance if there is a reasonably lengthy period between the two events without any ongoing problems being experienced on the part of the appellant from the authorities.
h) Whether in the period after the appellant's last arrest there is any evidence that he or she was kept under surveillance or monitored by the authorities.
i) Kurdish ethnicity.
j) Alevi faith.
k) Lack of a current up-to-date Turkish passport.
l) Whether there is any evidence that the authorities have been pursuing or otherwise expressing an interest in the appellant since he or she left Turkey.
m) Whether the appellant became an informer or was asked to become one.
n) Actual perceived political activities abroad in connection with a separatist organisation.
o) If the returnee is a military draft evader there will be some logical impact on his profile to those assessing him on his immediate return. Following Sepet of course this alone is not a basis for a refugee or human rights claim.
47. We cannot emphasise too strongly the importance of avoiding treating these factors as some kind of checklist. Assessment of the claim must be in the round bearing in mind the matters set out above as a consequence of a careful scrutiny and assessment of the evidence. The central issue as always is the question of the real risk on return of ill treatment amounting to persecution or breach of a person's Article 3 rights. The existing political and human rights context overall is also a matter of significance as will be seen from our assessment of the particular appeals in our determinations of those below. The particular circumstances that prevail today may not be in existence in 6 months time for all we know."
Subsequent Developments in the Country Guidance of the Tribunal
1. HO (National records) Turkey CG  UKIAT 00038. On 4 February 2004, this was the first Tribunal case to consider in detail the new evidence of the distinction between arrests and detentions in the GBTS, and held it to be reliable. It also concluded that there could be other records or personal knowledge by individual security personnel in a returnee's home area that might expose him there to greater risk than at the airport or elsewhere in Turkey, and thus the issue of internal relocation might assume importance.
2. SA (GBTS records) Turkey CG  UKIAT 00229. On 31 March 2004, the Tribunal considered an opinion from Mr McDowall that either GBTS covered a much wider range of security interest or the security forces operated another computerised screening system including recourse to individual police and gendarmerie stations across Turkey. The Tribunal concluded that Mr McDowall, though knowledgeable on Turkish matters, acted not as an independent expert but as an advocate and his unsupported opinions should be seen in that light. This concern about Mr McDowell's objectivity has been expressed also for some time by several other Tribunals, for example in MO (McDowall Reviewed – Objectivity) Turkey CG  UKIAT 02583, promulgated on 12 July 2002. The Tribunal in SA (Turkey) accepted the evidence in the CIPU report at 5.71 that
"The Turkish Intelligence Agency, MIT, allegedly keeps close tabs on political activities against Turkey. With manpower constraints, routine surveillance by the MIT seems to concentrate on leading figures. Information on people of lower rank is apparently obtained by chance".
It did not accept however that this record, which essentially related to activities outside Turkey, meant that there would be computerised records available at Istanbul airport apart from GBTS of persons who had been detained and released without charge within Turkey. The Tribunal did not accept either Mr McDowall's opinion that a person registering with a Mukhtar in a new area, outside his home area, would be at real risk of material ill-treatment as a result of information available in his home area on such matters as detentions and releases without charge. Having said that, the Tribunal acknowledged that there was limited evidence before it on the subject of other records systems or on what happened in relation to records when a person registered with the Mukhtar in a new area.
3. LT (Internal flight – Registration system) Turkey CG  UKIAT 00175, which concluded on 10 May 2004 that if a person was able to pass safely through Istanbul Airport, but might be at real risk from other records in his home area, there could be a viable internal flight option elsewhere in Turkey. It also noted evidence that large numbers of Turkish citizens lived in Turkey without registering with the local Mukhtar and that it would not in the absence of specific factors be unduly harsh to expect a returning failed asylum seeker to do so.
4. AG (GBTS, "tab" and other records) Turkey CG  UKIAT 00168. On 12 May 2004, the Tribunal assessed written evidence from the Swiss Organisation for Refugees (SWOR), Ms Sheri Laizer and Mr Kanat concerning record files kept by the security forces known as "tab records". It concluded that the various security forces may each have their own information systems and accepted that if an individual is "sought" by the anti-terror police or by the state, there will be some information about it at the airport. It would also be likely to be in the GBTS. There were also lists of wanted people and photographs in the border police booths at the airport. There may also be information about "undesirables," which explained why Ms Laizer was refused entry into Turkey in 1998. However it concluded there was no evidence that records of mere detentions in south-east Turkey would be available at Istanbul Airport.
5. KK (GBTS – Other information systems – McDowall) Turkey CG  UKIAT 00177. On 14 June 2004, the Tribunal further reviewed the evidence of SWOR and of Mr McDowall, and considered an article from Zaman On-Line and concluded that this evidence did not undermine the conclusions in O (Turkey), which should be followed. It assessment of an internet article by Zaman On-Line was expressed in the following terms
"The Zaman On-Line article dated 1 February 2004 refers to a single computer system which will replace all records kept by the police and gendarmerie. This article gives the name of the system as "Information Collection System". This article states that under the single on-line system all records of police and gendarmerie in provinces would be abolished and the new on-line system will be used. The document entitled Project for Police Information Systems of April 2002 also makes reference to a police computer network but gives it a different name – "Police Computer Network and Information System". Those documents must be referring to one of the same computing system - since both articles referred to one system to cover the police departments. If this is the case, then the Zaman On-Line article makes it clear that only criminal records would be collected into the single system. The inference therefore is that mere detentions would not be collected into the single on-line system."
6. MS (GBTS information at borders) Turkey  UKIAT 00192. The Tribunal considered reports from Mr Kanat, a Turkish defence lawyer, Ms Sheri Laizer and Mr McDowall, and concluded that
"It seems to us to be clear….. that the computers that are at the airports are the GBTS computers and the information they contain is what is in the GBTS records. It is also plain that there are other less formal records that are maintained but that these will not be looked at unless somebody is placed into custody. There is no suggestion that people are being picked up at the airport because of these information files."
7. CE (KK confirmed – McDowall report) Turkey CG UKIAT  00233. The Tribunal reviewed and approved LT, KK and MS in light of further evidence, including a new report by Mr McDowall.
1. The Tribunal bundles in the 3 extant appeals before us.
2. The Home Office objective bundle from Ms Giovannetti.
3. Volumes I and II comprising objective evidence and case law from Mr Grieves.
4. Volumes III and IV comprising case specific material from Mr Grieves
5. Statement by Denise Graf and statement of truth relating to it by Cecile Porter.
6. Supplemental statement by Levent Kanat re registration.
7. Press articles relating to report of Ulya Ucpinar.
8. Communication from the EU Commission to the Council and the Parliament.
9. Regular Report of 2004 by the Commission on Turkey's progress towards accession.
10. Various written submissions by Mr Grieves on the generic and specific issues arising.
11. Various written submissions by Ms Giovannetti on the generic and specific issues arising
12. Written statements from Mr Y Karadogan and Mrs O Golovtchouk concerning Nufus records, produced after the 3rd day of hearing, in response to submissions by Ms Giovannetti.
13. A paper by Mr Norton on Nufus records.
"The tribunal is accustomed to being served with reports of experts. We have to say that many have their own points of view, which their reports seek to justify. The whole point of the country reports is to bring together all relevant material. From them, the tribunal will reach its own conclusions about the situation in the country and then will see whether the facts found in relation to the individual before it establish to the required standard a real risk of persecution or of treatment which breaches his or her human rights. Further, the tribunal builds up its own expertise in relation to the limited number of countries from which asylum seekers come. Naturally, an expert's report can assist, but we do not accept that heavy reliance is or should be placed upon such reports. All will depend on the nature of the report and the particular expert. Furthermore, it is rare for such experts to be called to give evidence or for their views to be tested. We were fortunate in S to have had called before us two experts who were truly knowledgeable and who had no particular axes to grind. We have reports from experts in the present case, which we shall of course take into account and we will decide what weight should be accorded to their views.
"48. An expert witness is in a privileged position because he is able to give evidence relying on hearsay and to give his opinion based on his area of expertise drawing on such hearsay evidence as well as his personal knowledge. But the weight to be accorded to such evidence depends upon demonstrable impartiality and objectivity in addition to the requisite expertise in his subject. If the witness is partial, so that he becomes an advocate for the person commissioning his report, or shows a lack of objectivity in his approach to the body of evidence on which he draws to form his opinions, then the weight to be given to his opinion as an expert witness will be substantially diminished if not altogether eroded. Nevertheless, such testimony may remain of value on a factual basis arising from the witness's expert knowledge even where the weight to be given to expressed opinions is so reduced or eroded.
The Generic Issues
1. What is the ambit and accessibility of the information system/s maintained by the authorities in Turkey?
2. In what circumstances is there a real risk that a returnee to Istanbul airport will be placed in the non-routine investigation stream and be subject to detailed questioning?
3. If a person faces non-routine investigation what should he be expected to say when questioned and what further information is reasonably likely to be accessed in this process?
4. Does the guidance of the Tribunal in A (Turkey) require review in the light of subsequent developments?
5. Should an individual (and his family) be expected to live in Turkey without registration with the local Mukhtar in order to avoid persecution.
6. Is there an internal relocation option for a person who is at real risk of persecution by the authorities in his or her home area?
What is the ambit and accessibility of the information system/s maintained by the authorities in Turkey?
1. Levent Kanat, a Turkish human rights lawyer of 13 years standing and a Board Member of the Human Rights Association in Turkey.
2. Dr Haruk Gerger, a Turkish academic, specialising in political science and international politics, who has written a number of books and has received a variety of awards for his human rights activities. He spoke out against the military after the 1980 military coup and has not taught in a university in Turkey since then.
3. Ulya Ucpinar, a human rights lawyer in Turkey with extensive experience.
4. Denise Graf, now a Swiss based employee of Amnesty International, who has researched on Turkey for some 20 years and is or was involved with the Swiss Organisation to the Aid of Refugees (SOAR).
5. Tahir Elci, a Turkish human rights lawyer who is on the Turkish Board of Amnesty International.
6. Kerim Yildiz, the founder and Executive Director of Kurdish Human Rights Project in London.
7. Orhan Dil, a Turkish asylum seeker, who was granted 4 years exceptional leave to remain in the UK and is awaiting the outcome of his application for indefinite leave to remain. Between 1990-1991, whilst undertaking his compulsory military service, he worked at a gendarme station in Erzurum province. He does not claim to be an expert, but rather describes what he then saw.
8. Sheri Laizer, a UK writer and journalist, specialising in Turkish/Kurdish human rights issues.
9. David McDowall, a UK writer on Middle East affairs with a particular interest in Kurds who has written many reports on behalf of asylum seekers.
"We accept that the intelligence services in Turkey will collect and collate information about certain individuals. We say there is no satisfactory evidence that demonstrates any reasonable likelihood what information is kept, about which individuals, who holds it, and who it is made accessible to. There is a big issue in Turkey at the moment about the very fact that such information is compiled and held. Mr Kanat's evidence made that clear and also that the state has no right to hold the information he described about individuals. He routinely referred to it as a tab. We do not accept there is any evidence to demonstrate any reasonable likelihood there is a system called the tab system, which is a single information source accessible by computer or otherwise to anyone outside the intelligence services. With regard to the list in Mr Grieves' skeleton argument paragraph 140, we accept that it is reasonably likely that the anti terror branch of the police and the MIT would have access to this information as a matter of common sense. Anything beyond that is speculation. There is no cogent evidence that the security information is available to the border police at passport control or to the police at the police station attached to the airport."
"1. In the GBT system, records of following are being kept as a general rule: records of people who committed crime but have not been caught: those who committed serious crimes like organised crime, smuggling crimes, drug-related crimes, terror related crimes, unlawful seizure, murder, fraudulent trade: people who have search warrants about or arrest warrants in their default: people who were barred from public services, missing persons: association management committee members who are found guilty according to article 4/4 of Associations Law 2908: records of motor vehicles which are stolen or missed or unlawfully seized: records related to firearms and records of documents which prove identity.
2. Records for people who are found guilty and sentenced of above crimes are kept until their death. Likewise, records of people who are acquitted or cases against them are being abated as a result of decisions made not to prosecute or time limitations, are erased as soon as the decision reaches the security forces. In other crimes, the records of criminals being kept, are erased after the person's capture and the records of stolen or missed goods are deleted after the items are being found.
3. Records of people who committed crimes mentioned in clause 1 are kept even if they spend their time.
4. In the GBT system, only the most recent arrest warrants are taken into board and the rest are voided.
5. Information about people who are convicted are kept by Judicial Record Directorate which is different than GBT system.
6. In our country detention is carried out by the security forces whereas arrest is a court decision. Nonetheless the police can detain a person on their initiative but has to inform the public prosecutor's office within 24 hours.
7. Only records of people who are under judicial proceedings or judicial examination by the judiciary are being kept in the GBT system. No records of people are being kept in the system, who are detained and released by the security forces."
"During my 20 years activity on Turkey, I have come across only one case of a person whose record has been found on the GBTS computer yet regarding who there was no arrest warrant and who has never been convicted of an offence in court. So in general I would agree with the view of the directorate that the GBTS computer focuses on individuals who are the subject of arrest warrants."
"The intelligence services are able to gather information in relation to the issue was such as individual's personalities, their financial status, their way of life, their past, social status, individuals they interact with and locations, and that information is kept as confidential records."
The report also states that the Turkish authorities are entitled at law to undertake the tapping of telephone, fax, computer messages and letters. We also have a report from the Evrensel newspaper of 10 June 2003 to the effect that when the Turkish Prime Minister, Mr Erdogan, was heckled at a conference by two students who were then detained, he disclosed soon afterwards to the media what was said to be their "GBT records" which showed that they had "a stain in their past records. However despite that they have neither been detained nor arrested." Next we have been given an article from the Radikal newspaper of 18 April 2003 to the effect that the police do not delete from their own records, judicial records which have been pardoned but keep them on the files of individuals to assist security investigations. The article suggests that some 1.5 million people have been registered by the police with a record since the military coup of 12 September 1989. The final article, also from the Radikal newspaper, is from 14 February 1999. It states that 90 percent of people detained by the police are released as a result of clean GBTS records. It also suggests that there is a record of individual detentions maintained in a detention book at the police station involved.
1. Much of what he said was common knowledge in Turkey.
2. He had acted as a human rights lawyer and activist for many years and relied upon his own observations, and those of his colleagues.
3. He had had a meeting with Mr Omer Aydin on the GBTS.
4. Mr Vahit Bicak, who was a lecturer on security law at the Police Academy, was an old friend from law school. He let him from time to time and discussed these issues with him.
5. There were reports in the media.
"12. We think that the police officers that conduct the detention procedure at the airport could have knowledge of the unofficial tab records about the individual, apart from the GBTS records".
We do not consider that this difference can be satisfactorily explained away, as Mr Kanat sought to do by saying that the joint report used the official language of the Association. For these reasons we do not give weight to the opinions expressed by Mr Kanat that are not reflected in other evidence or supported by specific sourcing.
"In fact, technically, it would not be correct to speak of a single GBT system as there are three different GBD [sic] systems, each layer of data storage scheme includes distinctive details about a person. The first level only contains a basic set of data. For example, a record of an evasion of military service (draft evasion) does not show up in this system. Officials in the ordinary police stations only have access to this level of data storage and records. For more detail they need to refer the case to central authorities, who have access to the higher levels which contain more information including previous detentions that have not been followed by legal action."
"Previous detentions where there has been no further action or criminal charges are the most worrying feature of the system. In that sense, it contains data which is profoundly political in nature and hence of an extrajudicial character."
Other Information Systems
Border Control Information
"2.2.5 The national police (Department for Foreigners, Borders and Asylum) are responsible for carrying out passport and other checks on all those entering and leaving Turkey. They are supported by a sophisticated computer system that records and links the arrival and departure of all nationals. On both arrival and departure the names of all passengers are automatically run for a computer to establish whether amongst other things the individual is on the list of people to be prohibited from entering the country or prevented from leaving the country for reasons of, for example, tax evasion or committing a crime.
In what circumstances is there a real risk that a Returnee to Istanbul Airport will be placed in the non-routine investigation stream and be subject to detailed questioning?
"At the anti-terrorist unit of the police, the suspect being subjected to torture or mistreatment cannot be excluded".
If a person faces non-routine investigation what should he be expected to say when questioned and what further information is reasonably likely to be accessed in this process?
"Establishment or checking personal details; reasons and period of exit from Turkey; reason for the asylum application; reasons for any refusal of the asylum application; any criminal record and past record at home and abroad including drug offences; possible contact with illegal organisations abroad. However, if there are no suspicions, as a rule after an average of 6 to 9 hours they are released."
"The Secretary of State accepts that an individual detained and transferred to the airport police station would be interrogated and that it is reasonably likely that further checks would be carried out. However, the nature and extent of such interrogation and checks is likely to be related to the reason that the individual was stopped. So, for example, a person who does not have valid documents is likely to be questioned in order to establish his identity. An individual who is thought to have left on false documents is likely to be questioned about how and from whom he obtained them.
The Secretary of State does not suggest (and never has suggested) that Adjudicators should simply proceed on the basis that individual can lie about his background and circumstances. The right approach is to assess what questions are likely to be asked of the individual and what his responses are likely to be. "
Does the Guidance of the Tribunal in A (Turkey) require review in the light of subsequent developments?
Ending of PKK Ceasefire
EU Reports for 2004
"… the policy of zero tolerance towards torture should be implemented through determined efforts on all levels of the Turkish state to eradicate remaining instances of torture. … the need to consolidate and broaden political reform also applies to the normalisation and development of the situation in the South East including … initiatives to facilitate the return of displaced people and to allow for full enjoyment of rights and freedoms by the Kurds".
a. since May 2004 the death penalty has been abolished
b. most of the legislative and administrative framework required to combat torture and ill treatment has been in place since 2002 when the government announced a zero tolerance policy against torture
c. pre trial detention procedures have been brought into line with European standards
d. the rights of detainees have been strengthened
e. the new Penal Code increases the sentences for perpetrators of torture
f. in April 04 a circular was issued for law enforcement officials to avoid methods that may engender allegations of ill treatment of detainees
g. in October 03 a circular was issued instructing public prosecutors to investigate personally allegations of torture and ill treatment.
Should an individual (and his family) be expected to live without registration with the local Mukhtar in order to avoid persecution?
"The Secretary of State does not suggest that, as in general proposition, individuals should be expected to relocate to a different area and simply fail to register with the local Mukhtar. They may be cases where an Adjudicator is entitled to find that there is no reasonable likelihood of an individual needing to register in the foreseeable future. However in the vast majority of cases the issue will be whether such registration would be reasonably likely to lead to persecution."
Is there an internal relocation option for a person who is at real risk of persecution by the authorities in his or her home area?
"Kurds and members of Christian minorities from the southeast Turkey do have an internal flight alternative outside the region……. unless the case in question is of a prominent nature or is perceived by the authorities to have real or alleged linked with the PKK or other main Kurdish parties. UNHCR considers that the group most likely to be exposed to harassment/prosecution/persecution are Kurds suspected of being connected with or sympathisers of the PKK….
In the context of internal flight "it is essential to find out if Turkish asylum seekers if returned would be suspected of connection to or sympathy with the PKK. In this case they should not be considered as having been able to avail themselves of an internal flight alternative"…
in the UNHCR's perspective, if persecution emanates from state authorities then there is no internal flight alternative or relocation. The situation may look different with regard to village guards or people persecuted by non-state agents."
Assessment of the specific appeal
"In every case the Appellant assumes the burden of showing that the judgment appealed from is wrong. The burden so assumed is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. An Appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and indeed may express itself in such terms. The true distinction is between the case where the court of appeal might prefer different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an Appellant assumes is to show that the case falls within this latter category."
1. He is an Alevi Kurd from Karamanmaris, within the area of conflict.
2. He and his immediate family did provide food for the PKK.
3. He experienced a detention, with others, in 1997, during which in a police station he suffered serious torture over several days and was questioned about involvement with the PKK.
4. He was again detained, with others, in December 1997 and questioned about his uncle and was told to give information about his whereabouts.
5. Two cousins from his village had received life sentences in 1995 as PKK fighters, which may have focused the authorities' adverse attention on the Respondent's family and village.
6. Other family members in the village also experienced difficulties with the authorities. The village was subject to an order to evacuate which some villagers, including a number of members of the Respondent's family, resisted.
7. His disappearance from the village without trace would raise questions about what he did thereafter, especially in the period between December 1997 and his coming to the UK in 2001, and enhance suspicions of a PKK connection.
8. He is a draft evader.
Summary of Generic Conclusions
1. The evidence of Mr Aydin (paragraph 32) accurately describes the defined and limited ambit of the computerised GBT system. It comprises only outstanding arrest warrants, previous arrests, restrictions on travel abroad, possible draft evasion, refusal to perform military service and tax arrears. "Arrests" as comprised in the GBTS require some court intervention, and must be distinguished from "detentions" by the security forces followed by release without charge. The GBTS is fairly widely accessible and is in particular available to the border police at booths in Istanbul airport, and elsewhere in Turkey to the security forces.
2. In addition, there is border control information collated by the national police (Department for Foreigners, Borders and Asylum) recording past legal arrivals and departures of Turkish citizens, and information about people prohibited from entering Turkey as a result of their activities abroad, collated by MIT.
3. The Judicial Record Directorate keeps judicial records on sentences served by convicted persons, separate from GBTS. The system is known as "Adli Sicil." It is unlikely that this system would be directly accessible at border control in addition to the information in the GBTS.
4. The Nufus registration system comprises details of age, residence, marriage, death, parents' and children's details, and religious status. It may also include arrest warrants and if any of the people listed have been stripped of nationality. There is no evidence that it is directly available at border control.
5. If a person is held for questioning either in the airport police station after arrival or subsequently elsewhere in Turkey and the situation justifies it, then some additional inquiry could be made of the authorities in his local area about him, where more extensive records may be kept either manually or on computer. Also, if the circumstances so justify, an enquiry could be made of the anti terror police or MIT to see if an individual is of material interest to them.
6. If there is a material entry in the GBTS or in the border control information, or if a returnee is travelling on a one-way emergency travel document, then there is a reasonable likelihood that he will be identifiable as a failed asylum seeker and could be sent to the airport police station for further investigation.
7. It will be for an Adjudicator in each case to assess what questions are likely to be asked during such investigation and how a returnee would respond without being required to lie. The ambit of the likely questioning depends upon the circumstances of each case.
8. The escalation of the violence following the ending of the PKK ceasefire reinforces our view that the risk to a Kurdish returnee of ill treatment by the authorities may be greater if his home area is in an area of conflict in Turkey than it would be elsewhere, for the reasons described in paragraphs 90 and 116.
9. The Turkish Government is taking action in legislative and structural terms to address the human rights problems that present a serious obstacle to its membership of the EU. It has made its zero tolerance policy towards torture clear. However the use of torture is long and deep-seated in the security forces and it will take time and continued and determined effort to bring it under control in practice. It is premature to conclude that the long established view of the Tribunal concerning the potential risk of torture in detention as per A (Turkey) requires material revision on the present evidence. However the situation will require review as further evidence becomes available. For the time being as in the past, each case must be assessed on its own merits from the individual's own history and the relevant risk factors as described in paragraph 46 of A (Turkey).
10. Many of the individual risk factors described in A (Turkey) comprise in themselves a broad spectrum of variable potential risk that requires careful evaluation on the specific facts of each appeal as a whole. The factors described in A (Turkey) were not intended as a simplistic checklist and should not be used as such.
11. A young, fit, unmarried person, leaving his home area and seeking unofficial employment in a big city, may not feel the need to register with the local Mukhtar, at least at the outset. Many do not. However, given the range of basic activities for which a certificate of residence is needed, and which depend upon such registration, we conclude that it would in most normal circumstances be unduly harsh to expect a person to live without appropriate registration for any material time, as a requirement for avoiding persecution. This does not necessarily preclude the viability of internal relocation for the reasons described in paragraph 133.13 below.
12. The proper course in assessing the risk for a returnee is normally to decide first whether he has a well founded fear of persecution in his home area based upon a case sensitive assessment of the facts in the context of an analysis of the risk factors described in A (Turkey). If he does not then he is unlikely to be at any real risk anywhere in Turkey.
13. The risk to a specific individual in most circumstances will be at its highest in his home area for a variety of reasons, and particularly if it is located in the areas of conflict in the south and east of Turkey. Conversely the differential nature of the risk outside that area may be sufficient to mean that the individual would not be at real risk of persecution by the state or its agencies elsewhere in Turkey, even if they were made aware of the thrust of the information maintained in his home area by telephone or fax enquiry from the airport police station or elsewhere, or by a transfer of at least some of the information to a new home area on registration with the local Mukhtar there. Internal relocation may well therefore be viable, notwithstanding the need for registration in the new area. The issue is whether any individual's material history would be reasonably likely to lead to persecution outside his home area.
14. This determination updates and replaces the 7 decisions listed below, in the light of further evidence and argument, and now comprises the Tribunal's current country guidance on the issues described.
1. HO (National Records) Turkey CG  UKIAT 00038.
2. SA (GBTS records) Turkey CG  UKIAT 00177.
3. LT (Internal flight – Registration system) Turkey CG  UKIAT 00175.
4. AG (GBTS, "tab" and other records) Turkey CG  UKIAT 00168.
5. KK (GBTS – Other information systems – McDowall) Turkey CG  UKIAT 00177
6. MS (GBTS information at borders) Turkey  UKIAT 00192.
7. CE (KK confirmed – McDowall report) Turkey CG  UKIAT 00233.
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