Erdogan v Secretary of State for Home Department

J U D G M E N T

1. LORD JUSTICE AULD: Sir Christopher Staughton will give the first judgment.

2. SIR CHRISTOPHER STAUGHTON: The claimant/appellant in this appeal was born in December 1978. He was a Kurdish Alevi living in Turkey. He left Turkey on 25 January 2002 when he was 23 years old and travelled overland to the United Kingdom. On arrival he claimed asylum. This was refused by the Secretary of State for the Home Department. Proceedings followed before an adjudicator, Mr J H Bryan, who heard the application on 23 October 2002. He accepted that there had been incidents in 1996 and 1999 which were not contested. But the critical matter was in 2002. At paragraph 24 of his determination the adjudicator said:

"24. The picture I have therefore up to the end of December 2001 is of the young man who faced harassment from the authorities and some ill-treatment because of the known involvement of his brother Dogan with the HADEP, even though his brother had been living in Istanbul for some fifteen years prior to his departure in 1999. The appellant may have been a sympathiser of HADEP and may have visited their building in 1996, but he took little or no active part after his home had been raided on two occasions in 1996.

25. The event that the appellant claims caused him to leave Turkey occurred on or about 12 January 2002. I have difficulty in accepting this part of the appellant's claim. He claims that on or about the 12th he was arrested along with some thirty-two other people who were involved in visiting schools in order to seek signatures in support of a petition to legalize the teaching of Kurdish or the speaking of Kurdish in that part of Turkey. The appellant claims he was arrested along with the others and detained for three days. He was then released on unconditional bail and told to report to the court on 25 January this year. He said the authorities threatened to kill him and accused him of being a separatist.

26. I do not accept that the appellant was engaged in the activity that he was involved with. If, as I believe to be the case, it is illegal in Turkey to teach Kurdish or to speak the language in public places then it is unlikely that anyone would have risked certain involvement with the authorities by obtaining signatures to a petition to support the change. Not only would there be a high risk on the part of the canvassers but the signatories would also face the likely prospect of prosecution. Then one has to consider what would be done with the petition. If the activity was illegal it is hardly likely that it could be officially presented. It would carry little or no weight if it were presented anonymously. Alternatively there may in Turkey be laws against the use of the Kurdish language in schools and elsewhere but these are more honoured in the breach than in the observance. It is only in this sort of circumstances that the appellant's account makes any sense. Only then could the petition be presented: only then would people be ready to place their signatures upon it. The implication in that event is that it would be very unlikely the authorities would accuse a person who was canvassing support for a petition with separatism."

3. That material subsequently had to be abandoned by the Secretary of State. There followed an appeal to the Immigration Appeal Tribunal. There was no attempt to support the adjudicator's conclusion in that passage. At paragraph 8 of the Immigration Appeal Tribunal's decision, the Tribunal said:

"8. The adjudicator did not however believe the appellant's claim concerning events that occurred on or about 12 January 2002 which caused him to leave Turkey. He claimed that at that time he was arrested long with some 32 people who were involved in visiting schools in order to seek signatures in support of a petition to legalise the teaching of Kurdish or the speaking of Kurdish in that part of Turkey. The appellant claims that he was arrested along with the others, detained for three days and released on unconditional bail and told to report to the court on 25 January 2002 and said that the authorities threatened to kill him and accused him of being a separatist.

9. We think it is common ground that the first reason the Adjudicator gave for disbelieving the appellant in this regard cannot stand. He said at paragraph 26 of his determination that it was unlikely that anyone would have risked certain involvement with the authorities by obtaining signatures to a petition to support the teaching in Turkey of Kurdish or speaking the language in public places since such activities are illegal. The point is properly made in the grounds of appeal that, as can be seen from the country assessment at paragraph 6.122 examples are given of petitions for the use of the Kurdish language at a time when the use of that language was subject to wide-ranging restrictions and there was evidence of arrests due to such petitions."

4. However, having said that, the tribunal turned to further aspects of the adjudicator's decision. I turn back to paragraph 27 of the adjudicator's reasons:

"There is also merit in the observation of Mr Addy that if the authorities had genuinely wanted the appellant on a serious charge he would not have been released on unconditional bail for ten days prior to the hearing. There would be little the authorities would be able to do in such a short period of time to prepare the case and such a short period of release would be inconsistent with the authorities' general tactics. The appellant was released without being given any form of summons to return. It appears that he was simply told to report to Court on 25 January. This again seems unlikely in the context of the background material. He claims that a summons was then received at his home address but he has not been able to produce it. This has to be seen in the context of an appellant who is in regular contact with his family in Turkey. A further summons that was received in March 2002 has also not been produced on the pretext that his family have destroyed it. In reaching my decision that the appellant's account of arrest in January 2002 is not credible I have also been influenced by the earlier details of his account when he explained that he had not left Turkey in 1999 because he did not have enough money and because he wanted to complete his university diploma and because at that time he had no one in the United Kingdom to flee to.

28. By the time the appellant left the country his brother Dogan had already been here for a little short of two years. His sister had been in the United Kingdom for longer than two years. Despite the appellant's apparent difficulties with money in 1999 the family were able to find the means to pay 6,000 Euros within a matter of days. The appellant's departure coupled with the fact that he would have faced military service in the fairly near future, especially as he had abandoned his university studies bears all the hallmarks of a planned departure to the United Kingdom for reasons not altogether associated with the harassment he had suffered over the years from the authorities.

29. I am not satisfied the appellant was a dedicated HADEP supporter. He readily abandoned support for the organisation in 1999 and it is therefore difficult to see why he would have taken up their cause again in 2002 being so well aware of the difficulties in doing so. The appellant has not had any contact with HADEP or any other organisations promoting Kurdish affairs since he arrived in the United Kingdom and he gives the impression of being more interested in starting a new life in this country away from the harassment he experienced in his own country. As laudable as that may be it does not demonstrate a genuine fear of persecution at the time he left Turkey.

....

31. The issue is therefore one of returnability. The appellant claims that the authorities would in any event have a record of him and that he would be returning without full documentation. The objective evidence indicates that returnees are generally granted passports by the Turkish High Commission in this country. Evidence from German research of returned Turkish asylum seekers also supports the view that in general they do not face particular enquiry. Those that do are those who have had connections with separatist groups in the past or are perceived as having done so. It is possible the appellant would be detained and enquiries carried out. Those enquiries could extend to several days but it is unlikely they would last longer and the evidence must be that they would not show he was wanted for any particular offence even though there may be a record that he had been detained. There would be no details of any charges and if the records were complete they would show that he had only been detained whilst enquiries were made as to his brother's whereabouts.

32. There has been no significant alteration in the circumstances prevailing in Turkey since the appellant left save only that if anything the situation has become calmer with correspondingly less interest on the part of the authorities in the activities of suspected separatists. There has been little violence attributable to the PKK since the year 2000 and whilst known separatists continue to be sought the overall picture is one of improvement with the government actually providing some assistance towards repatriating the internally displaced to their home regions. The appellant's family of course remain in Malatya where the appellant would I find be able to return. On my finding of fact he does not face the prospect of returning to answer charges in relation to separatist offences."

5. Returning to the Immigration Appeal Tribunal, as to that matter at paragraph 10 the tribunal said:

"10. The Adjudicator went on to state that he doubted that the authorities would have released the appellant on unconditional bail for ten days prior to the hearing if they genuinely wanted him on a serious charge We questioned with Mr O'Donnell whether this could properly be regarded as a serious charge and Mr O'Donnell argued that if it were not then it was consistent with the release and that there was no evidence in any event in the country assessment or elsewhere of the practice of the authorities in Turkey as regards bail. Mr Phillips argued that the Adjudicator's conclusions in this regard could be accepted on the objective evidence generally since it was accepted that detentions occurred and people were held without charge and therefore if the authorities had any serious interest in the appellant they would not found it necessary to release him on unconditional bail.

11. This is not in our view a point of major significance with regard to the appellant's credibility. As Mr O'Donnell pointed out, the authorities knew where the appellant lived and if the charge were not regarded as a serious one, but nevertheless one in relation to which he could expect significant ill-treatment while in detention, then it was not inconsistent with the objective evidence for this to be the case. We consider that on this point the appellant can be given the benefit of the doubt.

12. The matter of particular significance in our view which caused the Adjudicator to doubt the appellant's credibility with regard to the events of January 2002 was as he stated at paragraph 29 of the determination that he was not satisfied that the appellant was a dedicated HADEP supporter, having readily abandoned support for the organisation in 1999 and concluding that it was therefore difficult to see why he would have taken up their cause again in 2002, being so well aware of the difficulties that would be involved in doing so.

13. In our view this is a finding which the Adjudicator was entitled to make. Mr O'Donnell argued that the Adjudicator had simply expressed his own view of what the appellant would do and not, as he claimed he should have done, considered it within the context of the objective evidence and also the credibility of the other aspects of the appellant's claim as the Adjudicator had found it to be. However it is our view that simply because people did seek petitions and signatures to petitions with regard to the use of the Kurdish language in Turkey that time although it was illegal does mean that it is credible that this appellant did so. Nor does the fact that he has been found credible on other aspects of his claim mean that he has to be found credible on this aspect. In our view the Adjudicator was entitled to take account of the appellant's inactivity as he found it to be in effect between 1999 and 2002. He wished to complete his education and went to work on the family farm and essentially was not involved with HADEP at that time as it would seem on the evidence. The Adjudicator was entitled to find that this was inconsistent with a sudden increase in interest in Kurdish matters to the extent that he would risk ill-treatment in the way in which it is claimed that he did. In this regard we also must of course bear in mind the context of the family history which Mr O'Donnell urged upon us both in his submissions and in his very helpful skeleton argument. Clearly coming from a family which has a political profile of interest to the authorities in Turkey is a relevant factor in assessing risk on return. In this regard however the appellant only ever it appears to have experienced problems on account of his brother Dogan rather than the brother Mehmet whose appeal was allowed by an Adjudicator. In this context also it is of significance to bear in mind the fact that the authorities appear to have displayed no interest in the appellant since 1999, on the Adjudicator's findings, other than visiting him from time to time to ask about his brother. He was not arrested on these occasions. Risk on return has to be seen in the light of our conclusion that the Adjudicator was entitled to find lacking in credibility the particular matter which he did in the light of the appellant's history. On those findings he has not been of any real interest to the authorities since 1999 whether in his own regard or in respect of either or both of his brothers' activities and profile with the authorities, and we see no reason why there should be any enhanced interest in him on return in the light of that history. As a consequence we consider that the Adjudicator's findings on risk on return are sound, in particular bearing in mind our conclusion that he was entitled to find lacking in credibility the claim with regard to the events in January 2002, and as a consequence we consider that he was entitled to conclude as he did that the claim was not made out."

6. I apologise for reading so much of that material but it is essential to see it as a whole. We have been referred to a number of authorities on what attitude should be taken to a decision, which has been in part shown and acknowledged to be wrong. The answer, as it seems to me, is given in the observation of Scott Baker LJ. "We have to ask ourselves, is the tribunal's decision, in the light of the error by the adjudicator, still within the bounds of reasonableness? If "yes", is there an error of law?" The task for this court is to see whether there is an error of law in the decision of the tribunal. If not, then the decision of the tribunal must stand. There is authority on what is an error of law that starts from being merely an error of fact. It must be in many cases, and in this case, a question of degree. The Appeal Tribunal studied the adjudicator's decision with great care. They identified and were told that part of it could not stand, and they had to consider whether they could properly act upon that part of the decision which was not admitted to be unreliable. They reached their decision, and I can find no fault in the route by which they reached it. I would dismiss this appeal.

7. LORD JUSTICE SCOTT BAKER: I agree.

8. LORD JUSTICE AULD: Although I agree, I would just add a few words. I repeat and specifically endorse the cautionary remarks of Laws LJ in relation to Mr Jones' argument, addressed to him as it was to this court when giving permission to appeal on the matter. He said:

"I apprehend with great respect that what perhaps lies behind this approach is that there are obvious difficulties, in truth difficulties of fact and common sense rather than difficulties of law, in seeking to compartmentalise an account given by a witness or party and to produce a result whereby once the basis for disbelief in one respect is shown to be faulty, nevertheless the others are, so to speak, hermetically sealed."

9. This is not a case where, as my Lord has indicated, all, or even the only, significant findings of fact of the adjudicator were set aside by the decision of the Immigration Appeal Tribunal. The adjudicator's determination and reasons must be read as a whole and not with too fine an analysis of his wording of the various surviving findings of fact on which he undoubtedly relied and was entitled to rely. First, as he himself observed, in paragraph 18 of his determination, whether on the facts the appellant had a well-founded fear of persecution is a composite question. That is answered by examining his subjective evidence and then placing it in the context of background information, that is, the objective evidence available. He was to do just that in his reference to the objective evidence in paragraphs 31 and 32 of his determination which, broadly, were to the effect that, even on the basis of the appellant's claims, he would not be at risk if returned to his home region in Turkey.

10. What was left of the subjective evidence from the claimant to put against the objectively supported decision, was the adjudicator's clear disbelief expressed in the latter part of paragraph 27 and in paragraphs 28 and 29 of his determination, that the appellant had left Turkey because he had a well-founded fear of persecution if he remained there, namely (i) the strange inability of the appellant to produce any evidence of pending proceedings against him; (ii) the long delay of some years before he left Turkey after the matters of which he complained in 1996, 1998 and 1999, more readily explicable the adjudicator concluded, on the evidence before him from the claimant by other reasons than fear for his safety; and (iii) the adjudicator's rejection, undisturbed by the Immigration Appeal Tribunal, that the appellant was a dedicated HADEP supporter, and therefore he was not, in the adjudicator's view, someone who on the objective evidence would have had a well-founded fear for his safety if returned to Turkey.

11. The Immigration Appeal Tribunal's specific reference to the last matter in paragraph 12 of its determination as being of particular significance was just that; but not the only finding of fact of the adjudicator to which it had regard when concluding that he was entitled to reach the decision that he did, as is apparent from its further discussion of the evidence in paragraph 20 of its determination.

12. Having regard to all those matters upon which the adjudicator clearly did rely, and was entitled to rely, it is plain in my view that the removal of one of them by the Tribunal was not of such significance. The Tribunal was entitled to find that it did not remove the basis for the adjudicator's findings of fact that this appellant had no well-founded fear of persecution if returned to Turkey. As my Lord has said, it is a matter for the judgment of the decision maker within the reasonable bounds of discretion. In my view, it cannot be said that the decision of the adjudicator was flawed or that of the Immigration Appeal Tribunal was irrational.

Order: Appeal dismissed. Detailed assessment of the appellant's publicly funded costs.