Bozkurt, R (on the application of) v Immigration Appeal Tribunal

This is an appeal with the permission of the judge against a decision of Beatson J given on 16 January 2004. The judge quashed a decision of the Immigration Appeal Tribunal (“the Tribunal”) made on 9 April 2003 refusing Mr Cafer Bozkurt (the respondent) permission to appeal to the Tribunal from the determination of an immigration adjudicator promulgated on 6 February 2003. The respondent had exercised his statutory right to apply for permission to appeal to the Tribunal.

The adjudicator dismissed the respondent's appeal from the refusal of the Secretary of State for the Home Department (the appellant) to grant the respondent leave to enter after refusal of asylum. The respondent had claimed to be a refugee, whose removal from the United Kingdom in consequence of the refusal would be a breach of the United Kingdom's obligations under the Geneva Convention Relating to the Status of Refugees (1951) and under Article 3 of the European Convention for the Protection of Human Rights 1950.

The respondent is 40 years old and a citizen of Turkey. He is an Alevi Kurd from the province of Tunceli. He left Turkey by lorry on 1 November 2001 and applied for asylum on arrival in the United Kingdom.

The adjudicator summarised in considerable detail the evidence of the respondent. He had before him the interview record and a written statement, and he heard oral evidence from the respondent.

The general country information (described by the adjudicator as “background material”) was also considered in detail in 13 paragraphs, as were the events described by the respondent in his evidence. The respondent had been ill-treated during detention for a short period of time by the Turkish authorities in 1986 (paragraph 33 of the determination) and beaten by security forces in March 1997. In April 2001 the respondent attended the funeral of a cousin who had been a member of the Turkish Communist Party Marxist Leninist (“TKPML”). The events at and following the funeral were considered in detail. The adjudicator concluded at paragraph 37:

“There is nothing in the evidence that suggests that there was any particular reason why the [respondent] might have been singled out by the authorities for further investigation.”

The adjudicator continued:

“39.

Whilst I accept the [respondent's] evidence that as a Kurd living in the south east of the country during the state of emergency it is likely that he would have received some degree of harassment and discrimination on account of his ethnicity. However, there is nothing in the evidence to suggest that the [respondent] suffered persecution purely because of his Kurdish ethnicity. In any event the reforms in the process of being carried out by the new Government following the cessation of violence in the south east and which I have referred to in the background evidence demonstrate the Turkish Government's commitment to respect Kurdish rights.

40.

I find on the totality of the evidence that although the [respondent] attended the funeral of his cousin the Turkish authorities had no interest in him. I find that if the [respondent] had been in genuine fear of persecution he would not have remained in Turkey for six or seven months following the funeral but would have left the country immediately. During cross- examination the [respondent] was unable to account for all his movements during that six or seven month period and I am in no doubt that what he did was to stay at home in his home village whilst he made arrangements to raise the necessary monies to pay the agent to enable him to leave Turkey and come to the United Kingdom.

41.

I conclude therefore that the core of the [respondent's] account of persecution lacks credibility and is a fabrication designed to gain access to the United Kingdom. In reaching this conclusion I have taken into account the [respondent's] brief detentions in 1986 and 1997 and I am satisfied on the basis of the evidence before me that neither of these incidents influenced the [respondent's] decision to leave Turkey.”

At paragraph 44 the adjudicator conducted a further analysis of the facts. He stated his view that:

“.... the Turkish authorities have no interest in the [respondent] because of his attendance at his cousin's funeral.... There is no credible evidence that the [respondent] has ever been under surveillance or has been monitored by the authorities.”

The adjudicator concluded:

“45.

Taking all these factors into account I am not satisfied that they demonstrate that the [respondent] would face a real risk of persecution if he were to return to Turkey. I am not satisfied that the authorities would have a record of any involvement in or sympathy for any of the separatist organisations which are still operating in south east Turkey.

46.

Having considered these factors I am not satisfied that on return it would be reasonably likely that the authorities would have a record on this [respondent] or that they would wish to interrogate or detain him in order to make further enquiries. Even if they were to do so I am satisfied that the authorities would not conclude that the [respondent] is from the suspected separatist category. On the facts as I have established them I find that the [respondent] has not established that he has any subjectively genuine or objectively well-founded fear of persecution by the state or its agents.

47.

Given these conclusions, I find that the [respondent] has not discharged the burden of proof of having a well-founded fear of persecution for a Convention reason. I come to the conclusion that the [respondent's] removal would not cause the United Kingdom to be in breach of its obligations under the 1951 Convention.”

Refusing permission to appeal to the Tribunal, the Tribunal noted the findings and conclusions of the adjudicator. It was stated: “it was open to the adjudicator to reach his conclusion about what happened at the funeral” and that the adjudicator's “assessment of the risk was properly open to him”. He concluded that the respondent did not have a well-founded fear of persecution for a Convention reason. Moreover, removal would not cause the United Kingdom to be in breach of its obligation under article 3 of the 1950 Convention. There was no substance in the argument, the adjudicator held.

In his judgment quashing the Tribunal's decision, Beatson J noted the respondent's submission that the adjudicator, in paragraph 46, failed to give due weight to the facts he had accepted when assessing the likelihood of the authorities having a record on him, such that he might be detained, interrogated and tortured on suspicion of a separatist political opinion. The judge noted that the respondent relied on a decision of the Tribunal given on 6 March 2003, that is after the adjudicator's determination but before the refusal of permission to appeal by the Tribunal: Hayser v Secretary of State for the Home Department [2002] UKIAT 07083. In its determination in that case the Tribunal stated at paragraph 68 “general conclusions” about conditions in Turkey based on its assessment of the general country evidence. Reference was made to Turkey's computerised General Information Gathering System (“GBTS”), which stores a considerable amount of personal data about Turks. Failed asylum seekers, amongst others, are checked against GBTS computer records at the point of entry. If the records reveal information regarded as suspicious, the failed asylum seeker is likely to be detained for interrogation at the point of entry. If, as a result of interrogation and further enquiries, there is no continuing suspicion, the person is likely to be released after an average of 6 to 9 hours. If enquiries lead to a suspicion of membership or giving to the PKK (now KADEK), HADEP, left wing radical organisations such as DHKPC or TKPML, or militant Islamic groups, the person is likely to be regarded as an actual or potential separatist and is likely to be handed over to the Anti-Terror Branch. Once an individual has been transferred to the Anti-Terror Branch, there is a real risk of torture.

In dealing with that aspect of the general country information, the adjudicator, who, it is clear, was aware of the information about procedures on entry, put it this way at paragraph 29:

“Such a person may be interrogated in order to establish or check personal particulars and reasons for leaving Turkey. If however there is no definite suspicion as a rule the person is released after an average of six to nine hours detention. Persons suspected of membership of left wing radical organisations such as TKPML or anyone suspected of giving support or shelter to one of those organisations is handed over to the anti-terror branch. Torture or ill-treatment of suspects at the police anti-terror branch cannot be ruled out.”

In Hayser at paragraph 70 the Tribunal set out “material factors which may excite varying degrees of suspicion by the authorities in Turkey”. These are stated to include:

“a.

The level of the Appellant's known or suspected involvement with a separatist organisation.

b.

Whether the Appellant has ever been arrested or detained and if so how long.

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 which the Appellant was subjected to in the past.

f.

Whether he or she has family connections with a separatist organisation such as the PKK (now KADEK) or HADEP.

g.

How long a period elapsed between the Appellant's last arrest and detention and his or her departure from Turkey.

h.

Whether in the period after the Appellant's last arrest there is any evidence that he was kept under surveillance or monitored by the authorities.

i.

Whether the Appellant's home area is in one of the two remaining state of emergency provinces, Diarbakir and Sirnak. (The National Security Council has recommended the lifting of the state of emergency in these two provinces by the end of 2002. Up-to-date country information may, in due course, show that there are no longer any state of emergency provinces).

j.

Kurdish ethnicity.

k.

Alevi faith.

l.

Lack of a current up-to-date Turkish passport.

m.

Whether there is any evidence that the authorities have been pursuing the Appellant since he or she left Turkey.

n.

Whether the Appellant became an informer or was asked to become one.

o.

Actual or perceived political activities abroad in connection with a separatist organisation.”

In his judgment at paragraph 10, the judge included a citation of those parts of the general conclusions in Hayser recited in the respondent's skeleton argument. Having stated that he was very conscious of the limits on both the Tribunal and the court, at paragraph 15 the judge stated:

“I have concluded, with regard to paragraph 46 of the adjudicator's decision, that the conclusion concerning the record on this [respondent] is an error in the application of the general country conditions to the facts of this particular case. I do so because of the features of the country assessment highlighted in the [respondent's] skeleton argument, which are set out earlier in this judgment. Accordingly, I conclude that the tribunal erred in law in refusing the [respondent's] application for permission because of the condition and what is said in paragraph 46 of the adjudicator's decision.”

When asked to give permission to appeal to this court, the judge indicated the basis on which he had decided the case. He said at paragraph 29:

“I am going to give permission to appeal because the issue is not really about Hayser, but about the interrelationship between the application of the objective evidence to the facts of the particular case. I am minded to say on the form that the reason for my decision is that the case concerns the fourth category, the circumstances in which the tribunal should find that an error of law has been made in the application of general country conditions to the facts.”

It is common ground that what the judge had in mind when referring to the fourth category was a category considered by Hale LJ in Indrakumar v Secretary of State for the Home Department [2003] EWCA Civ 1677 as to how the Tribunal or a court should approach the findings of an adjudicator which are claimed to be wrong or unsustainable:

“There are findings as to the application of those general country conditions to the facts of the particular case. These will be an inference to be drawn by the adjudicator and then, if appropriate, by the tribunal. The tribunal will be entitled to draw its own inferences, just as is the appellate court under the CPR once it has detected an error in the adjudicator's approach.”

The test to be applied to detecting error was stated by Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 at paragraph 44:

“The true distinction is between the case where the appeal court might prefer a 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.”

The appellant in that context is the party attacking the adjudicator's decision.

The approach has recently been summarised by Sedley LJ in Vijayanath [2004] EWCA Civ 1161 as follows:

“In the interim, on 17 March 2003, this court gave its decision in Subesh [2004] EWCA Civ 56, establishing, or perhaps more precisely reasserting (see Indrakumar), that the Immigration Appeal Tribunal should not interfere with an adjudicator's decision unless it concludes that it is not merely able but it is required to adopt a different view.”

That applies at least as strongly when the court is invited to hold that an adjudicator's decision is in error. It is the adjudicator's conclusion and decision which in substance are under challenge in this case, although both were found acceptable by the Tribunal.

For the appellant, Miss Anderson submits that the adjudicator was entitled to reach the conclusions he did and that the Tribunal was entitled to find that he did so. The court could not substitute its own view of the merits for those of the fact-finding tribunal. There was nothing irrational about the adjudicator's consideration of the evidence -- either the general country evidence or the facts of the particular case. There was nothing irrational about the conclusion reached by the adjudicator when applying general country conditions to the facts of the particular case.

For the respondent, Mr Stanage submits that the error of the Tribunal was in failing to have regard to the general conclusions stated and material factors identified in Hayser. The adjudicator failed to carry out a reasoned analysis of risk in the light of the risk factors relevant to the facts found by him. The Hayser guidelines demonstrate that a risk does not arise only if the person is a suspected terrorist. A far broader range of factors will suffice to arouse suspicions sufficient for the person to be ill-treated.

Although there was no Respondent's Notice, Mr Stanage has valiantly attempted to particularise the respects in which the adjudicator failed to apply the Hayser terminology. I have referred to paragraph 29 of the judgment. It appears to me that it was the application of the general country information to the facts and not an erroneous assessment of the in country information which the judge had in mind when reaching his decision.

It is common ground that the adjudicator must consider the facts as found by him in the context of the evidence about conditions in the country concerned. There is no challenge to the fact-finding exercise conducted by the adjudicator. The respondent claims that the adjudicator was in error in applying the general country information to the facts.

In my judgment, the adjudicator has correctly identified the issue. He has carefully set out the general country evidence and has reasoned the findings of fact and conclusion he made on the evidence before him. He was entitled to reach the conclusions expressed at paragraphS 46 and 48. He was entitled to conclude, setting his findings of fact in the context of the general country information, that it was not reasonably likely that on return to Turkey the authorities would wish to interrogate or detain the respondent in order to make further enquiries. Even if he was wrong about that, which I do not consider he was, the adjudicator was entitled to reach his fall-back conclusion that upon further enquiries the authorities would not conclude that the respondent is from a suspected separatist category. The adjudicator did not have the advantage of the Hayser guidelines, but in my view his assessment is consistent with them. It is fanciful to suggest that he would have reached a different conclusion had they been before him. The same background information was available to him as to the Tribunal in Hayser. With a clarity which I would respectfully commend, the adjudicator considered the facts of the particular case on the basis of them.

The list of material factors in Hayser at paragraph 70 was not expressed to be exclusive; nor could it be. To say that it is no more than an aide-memoire for adjudicators is not to diminish its significance or helpfulness. It is for the adjudicator to decide what weight, on the evidence, to give to each of the factors. Adjudicators are not required to spell out in every case the factors stated at paragraph 70a-o of Hayser. Nor, on a reading of paragraph 71 of that determination, are they required to do so. Moreover, I see no material conflict between the adjudicator's assessment of the general country information, as set out in detail, and that subsequently made by the Tribunal in Hayser. Neither, it appears, did the judge.

I find no error of law either by the adjudicator or the Tribunal which merited the intervention by the court and I would allow this appeal.

Before concluding this judgment, I refer to the fact that the court granted a short extension of time. Mr Stanage did not oppose the application and accepted that it caused no prejudice to the respondent. The court had in mind that there was a sound basis for the appeal.

What emerged from Miss Anderson's explanation for the delay did not, however, reveal a satisfactory situation. She referred to the absence of a transcript of the judgment and the need to consult different branches within the Home Office because of the complexity of the case before a decision as to whether to appeal could be reached. The judgment was a short one. The points arising cannot be said to have been complex or esoteric. While the extension of time was appropriate in all the circumstances of this case, steps should be taken to ensure that the time limit of fourteen days is complied with. A litigant may usually expect a decision in his favour to be final as from the expiry of the time provided.

LORD JUSTICE CHADWICK: I agree that this appeal should be allowed for the reasons given by my Lord, Pill LJ. I associate myself with the remarks that he has made as to the need to comply with the rules as to time.

LORD JUSTICE RIX: I agree with both judgments.