Degirmenci v Secretary of State for the Home Department

LORD JUSTICE BUXTON: Lord Justice Sedley will give the first judgment.

LORD JUSTICE SEDLEY: The appellant is an Alevi Kurd of Turkish nationality. He travelled to this country by lorry, entered illegally on 14 July 2002 and claimed asylum immediately. His claim to protection was rejected by the Home Office. His appeal to an adjudicator, Mr DR Garratt, was dismissed on 20 December 2002. Leave to appeal was granted, but the IAT dismissed the appeal and refused permission to appeal to this court. Dyson LJ on sight of the papers granted permission to appeal.

The appellant comes from a large and apparently prosperous farming family in Kayseri province, almost 40 of whose members have now sought and obtained asylum or leave to remain in this and other EU countries. His case was that on each of the four occasions when the army had arrested him he had been beaten and treated with methodical cruelty, including hanging by the feet or arms, electric shocks and beating with truncheons, before being turned loose. The reason for the first arrest, in November 1998, was that he had visited a cousin who was in prison for PKK activities. The reason for the last arrest, in March 2000, was that he was distributing leaflets for a Kurdish party, HADEP, which was then legal but which has since been banned. Of the other two arrests, one had been in the course of a sweep, but the other had been directed at him.

The appellant then recounted that he had gone in March 2000 to live with his uncle in Ankara with false identity documents, preferring to try to remain in Turkey. But in June 2002 the uncle's home was raided. The appellant was not there, but his uncle told him that the authorities were looking for him, and the appellant fled to the United Kingdom.

The appellant had the misfortune to be disbelieved in significant measure by the adjudicator. For reasons which he set out, and which - though at first sight perhaps exiguous - are not under attack in this appeal, the adjudicator considered that the extent of the appellant's ill-treatment by the army had been much exaggerated. He also - and this will be relevant to the appeal - disbelieved the appellant's account of having had to live under an assumed identity in Ankara. He wrote:

What may matter more than the - again not entirely convincing - reasons given by the adjudicator is the fact that on the appellant's own account the authorities had managed to trace him to his uncle's home in Ankara.

The adjudicator dismissed both the asylum and the human rights appeal on the ground that, although the appellant would, even on his diminished findings, be at risk of persecution in his home province, his two years of relative safety in Ankara showed that he could relocate there.

The single member, Mr Fox, gave leave to appeal, in particular on the question of risk to the appellant on return. The appeal was argued with a focus on the risk that the appellant, if returned, would be identified as a suspect at the airport and at real risk of torture or ill-treatment. If so, the possibility of relocation in Ankara was not an issue.

This was a question which the adjudicator had answered in the following way:

The Immigration Appeal Tribunal (Mr HJE Latter and Mrs W Jordan) upheld this view. Mr Latter, on behalf of the Tribunal, wrote:

There is a second issue on which Dyson LJ also granted permission to appeal. In the course of his findings and conclusions, the adjudicator, having summarised the appellant's evidence about his successive detentions, wrote:

It is submitted that the adjudicator was applying too high a standard of proof, in effect requiring probability, where in law (see Sivakumaran [1988] IMM AR 147) a real possibility is enough to afford proof.

Although it has not proved necessary to hear argument on it, my present view on the matter is this. The low standard of proof in asylum cases relates to the establishment of risk. It does not set a threshold above which all evidence is to be treated as fact. As this court has more than once said (see Karanakaran [2000] 3 ALL ER 449), in arriving at a determination each element of the evidence has to be given as much or as little weight as the decision-maker judges right. That is what the adjudicator seems to me to be doing here. He goes on, for example, in the next sentence to make another finding of fact to a different standard:

Turning then to the principal ground of appeal, counsel for the appellant, Mr Collins, was initially seeking to support it by a report written by a specialist in Middle Eastern affairs with a special interest in the Kurds. This report, dated 1 March 2004, was neither before the adjudicator nor before the IAT. It was first introduced in support of the application to the IAT for permission to appeal to this court. Following refusal by the IAT, no application was made in the appellant's notice or subsequently for permission to adduce it. Instead, it was simply included in the bundle and adopted in counsel's grounds and skeleton argument.

For my part I would not have been prepared in these circumstances to treat Mr Mc Dowall's report as evidence or therefore to have indirect regard to it by way of counsel's submissions. Apart from anything else, there was no agreement about its content; and no good reason has been advanced for its not having been available to either of the tribunals below.

A substantial part of the written case for the appellant in this court consists of other IAT cases where asylum has been granted in similar fact situations. Counsel for the Home Secretary, Miss Giovannetti, points out that if such an exercise were permissible she too could no doubt produce cases with similar facts which had gone the other way. She submits that the entire exercise is inadmissible.

In the event, however, it is the objective evidence placed before the tribunals below to which it has proved relevant to have regard on the critical issue in the present appeal. We have not needed to consider whether, and to what extent, any of the cases marshalled by Mr Collins constitutes what Laws LJ in S v Home Secretary [2002] INLR 416 called "a factual precedent".

The case for the applicant is now put upon a single facet of risk: the risk that, if he is returned, on interrogation at Ankara Airport he will be identified as a suspect and ill-treated or tortured in consequence. It may well be that only the first half of this is contentious: the evidence, depressingly, seems fairly consistent that persons who are so identified are routinely maltreated by the security services. The question is whether, on the material before the tribunals below, the appellant faced risk of such identification were he to be returned; and, if so, whether the findings to the contrary are sustainable.

It is submitted in the light of this that it is irrational to conclude that internal relocation is a realistic possibility. Without resorting to the language of irrationality, I would accept that this must be right if there is a real risk of being detained and maltreated on arrival, because the appellant will on this view face persecution and inhuman treatment without ever reaching safety in Ankara. Collins J adopted this logic in Okur (IAT, 26 February 2000), and I would respectfully do so too.

So the single question is the one first posed above: did the adjudicator and IAT err in dismissing as insignificant any risk of detention and consequent ill-treatment at the airport on return?

It is perhaps surprising that what happens at official level in a democratic state which is a Member of the Council of Europe, a signatory of the European Convention on Human Rights with a judge on the Court, a member of NATO and a candidate for membership of the European Union should be as shrouded in obscurity and controversy as this question is.

What information there is comes principally from the Home Office's Country Information and Policy Unit. Its April 2003 report will have been available to the IAT. Its November 2002 report will have been available to the adjudicator. The main sources are, it appears, information supplied directly by the Turkish authorities, data assembled on a CIPU visit to Turkey in 2001, and material reaching and passed on by human rights and other organisations.

The relevant passages in the April 2003 report includes these, in relation to the party known as HADEP:

The 2002 CIPU report is in identical terms, in the material parts, to paragraphs 6.92 and 6.93 of the 2003 report. It was in 2003, as we have seen, that the banning of HADEP was upheld by the Constitutional Court; and it is noteworthy that the ground appears to have been that it aided and abetted PKK, because one notes that assistance to the PKK is one of the grounds for detention of returnees.

In both reports, the remark that torture at the hands of the police anti-terror branch "cannot be ruled out" has probably to be regarded as euphemistic in the light, for example, of the US State Department report for 2003, which is cited by the IAT in A (Turkey) (28 July 2003):

How, if at all, is this and similar information addressed in the IAT's decision? The adjudicator (in paragraph 31) for reasons which are understandable, had taken HADEP to be "the legitimate political party supporting Kurdish interests". Although by the date of the IAT decision HADEP had been banned, the IAT (in paragraph 14 of its decision) still took the view that the appellant's links with it would not put him at any additional risk. Such a counter-intuitive finding, while not an impossible one, requires reasons, especially in the light of the fact that the adjudicator in paragraph 30 had expressed himself satisfied that the reason for the appellant's repeated detentions and interrogations had been that he was suspected of involvement with the PKK. However the IAT gives no reasons for this crucial conclusion.

Miss Giovannetti nevertheless submits to us today that the in-country evidence shows that the harassment of HADEP supporters was confined in place to the south-east of the country and in time to a period which is now over. She may or may not be right, but it does not answer the real concerns raised by the CIPU and State Department Reports about what may happen now when a returned Kurdish asylum-seeker is questioned at the airport by the security police. Will his previous detentions, especially but not only if they were authorised under a state of emergency, be on record? Does the raid on his uncle's home in Ankara give a clue? Will the grounds of suspicion - visiting a PKK prisoner; distributing HADEP leaflets - be on record? If so, will the HADEP association count against him in the light of the party's having been banned because of links with the PKK? May the adjudicator's or the IAT's written decision on the appellant's case have come into the hands of the Turkish authorities? In the last connection, one notes the Practice Direction (CA3 of 2003) creating a change in the practice of recording and filing decisions for reference purposes. We do not know, and it may be that the decision-making body should know, what will have been the public accessibility of either of the decisions in this appellant's case to anybody seeking such information from outside the Immigration Appellate Authority.

As Miss Giovannetti eventually all but conceded, these questions, and others which also may legitimately be raised, have not been addressed by the IAT. In my judgment the appeal should be allowed and the case be remitted to a differently constituted IAT for this to be done. Since arrangements may well have to be made for the assembly of evidence and for oral submissions, I would also order that the case should go first before the President of the IAT for directions.

SIR MARTIN NOURSE: I agree, and cannot usefully add anything of my own.

LORD JUSTICE BUXTON: I also agree with everything that has fallen from my Lord, including what he has said both on the issue of standard of proof and on the issue of Mr McDowall's evidence. I would also venture respectfully to underline what my Lord has said as to the difficulties apparent in this case and affecting, as it would seem, everybody in this field in determining what is the practice and attitude of the authorities in the Republic of Turkey.

As my Lord has pointed out, there appears to be no single source from which that can be extracted. I would hope that Her Majesty's Government will give serious consideration to raising this difficulty at a high level with the authorities of the Republic of Turkey: to point out that it is in no one's interest, whether it is the interests of the courts in this country, whether it is the interests of the citizens of that Republic who find themselves in this country, or the interests of the Republic itself for courts in this country to be in the difficulties encountered here in determining what the situation will be should persons be returned to Turkey.

Subject to that observation, I respectfully agree that the appeal should be allowed in the terms indicated by my Lord. I would further agree that the matter should be referred, and the parties will be under an obligation to refer it, to the President of the Tribunal, both for directions as to the future management of the appeal, and also because he may well wish to consider how the hearing of this appeal should relate to the hearing of other, as we understand, quite considerable number of cases relating to Turkey with which the appellate authorities are currently burdened.