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

J U D G M E N T

Wednesday, 28 January 2004

1. LORD JUSTICE JUDGE: I will ask Lord Justice Laws to give the first judgment.

2. LORD JUSTICE LAWS: This is an application for judicial review of a decision of the Immigration Appeal Tribunal. It proceeds in this court by order of Sedley LJ made on 17 October 2003. Sedley LJ made that order on consideration of the applicant's application for permission to appeal against a judgment of Mr Rabinder Singh QC sitting as a Deputy Judge of the High Court given on 12 August 2003. On that occasion the deputy judge refused the applicant's application for permission to seek judicial review of the IAT's determination. By that determination, dated 27 March 2003, the IAT allowed the appeal of the Secretary of State against the earlier decision of an adjudicator who, on 15 August 2002, had allowed the applicant's appeal against the decision of the Secretary of State by letter dated 9 May 2001 to refuse his asylum claim.

3. By that letter the Secretary of State also held that the applicant had no claim to enter or remain in the United Kingdom on ECHR grounds. In allowing the appeal the IAT remitted the matter for rehearing before a different adjudicator. To summarise the case at this stage in a few words it is submitted that the IAT was not entitled to take that course because there was no legitimate basis upon which the adjudicator's determination could be undermined. It is an important feature of the case, as I shall show, that the Secretary of State was not represented before the adjudicator.

4. The applicant is a Kurdish Alevi citizen of Turkey. His case on the facts was succinctly, but so far as I am aware accurately, summarised by the IAT in paragraph 2 of their determination as follows:

"(a) The respondent is Kurdish and feels that his cultural heritage has been denied him because of the prohibitions on Kurdish culture in Turkey.

(b) He performed his required military service but was discriminated against and punished when he went absent without leave.

(c) He was beaten and arrested in March 1998 because he and his neighbours had built a bonfire to celebrate the Newroz festival. They were taken to a vineyard where they were assaulted and released.

(d) From April 1998 he assisted PKK guerrillas by giving them food. A government patrol found him with a bag of bread and realised what he was doing. They took him to a place where they beat him.

(e) In June of 1998 the appellant was not given water for his fields until the evening. When the police found him in his fields in the evening they accused him of feeding guerrillas and took him to the police station where he was tortured and held for a week when he was released without charge.

(f) In September 1998 the appellant along with everyone in his village was beaten because a Turkish person had been shot by guerrillas.

(g) In November 1998 he was asked to become a village guard. He initially refused. He was threatened that if he did not accept he and his family would be killed. He agreed because he was planning to leave the country anyway and he wanted to gain the trust of the authorities.

(h) On his second day as a village guard he and his family ran away and went to G Antep where they hid in the house of a friend and eventually came to the United Kingdom."

I should say that the adjudicator gave a more detailed account, but this will suffice for present purposes.

5. The adjudicator had doubts about the applicant's factual case on two grounds. First (paragraph 36 of the adjudication), he felt that the fact that the applicant had not apparently suffered any difficulties for 11 years from 1 February 1987 when he was discharged from military service until 21 March 1998 when he claimed to have been assaulted by the police in the context of the Newroz celebrations tended to cast doubt on his account.

6. Second (paragraph 37), the adjudicator was concerned that the applicant's wife had not been called to support his case by oral evidence. However he concluded (paragraph 41, to which I must return):

"...there is a reasonable degree of likelihood that the events took place as described by the appellant although there are still some questions that remain unanswered."

Earlier in his determination the adjudicator had referred to the expert evidence of Mr David McDowall, who had been "recognised by the IAT" (paragraph 26) as a specialist in Middle Eastern affairs with particular interest in Kurdish questions. The adjudicator gave this account of part of Mr McDowall's evidence (paragraph 26):

"If there is a shred of truth in his account he would then be sent to Vatan Caddesi for further interrogation both in regard to his desertion from the village guard and also as a suspected sympathiser or supporter of the PKK. You should be aware that Vatan Caddesi police station has a reputation for torture."

The adjudicator also set out (and must plainly have had in mind) paragraph 4.52 of the April 2002 Country Information and Policy Unit Country Assessment ("CIPU") report. That stated so far as quoted by the adjudicator:

"In the past individuals recruited as village guards have sometimes been caught in the crossfire. On the one hand their refusal to serve as village guards could be interpreted as implicit support for the PKK, while on the other hand their acceptance to the office could make them PKK targets. Since the withdrawal of PKK fighters from Turkey at the end of 1999 there has been practically no further pressure to speak of from the PKK. Now that the recruitment of village guards has ceased this issue is no longer of any great importance."

The adjudicator came to express his conclusions on the case (paragraphs 40 to 42) as follows:

"40. I have come to the conclusion that my decision rests on the appellant's credibility particularly in relation to whether he became a village guard under coercion. From my research into the objective material I have found it difficult to glean information as to the way in which persons are coerced into acting as a village guard. The objective information appears clear that in general the coercion is on a whole community rather than individuals and so I have some doubt as to whether the appellant is being truthful regarding his account.

41. From the above it will be seen that there are matters that are still not clear in this case and it is only the appellant who knows the real truth of the matter. I have to make my judgment on the lower standard of proof of 'a reasonable degree of likelihood' and 'a reasonable chance'. I am also conscious of the UNHCR's view relating to the fact that accounts very often are not corroborated or supported by external evidence. In this case I have concluded that there is a reasonable degree of likelihood that the events took place as described by the appellant although there are still some questions that remain unanswered.

42. In view of my findings above I have concluded that on return to Turkey the appellant may be at risk of arrest at the airport and then be subject to detention and torture that would bring him within the protection of both the Refugee and European Conventions as claimed by the appellant."

7. The IAT referred, among other things, to a previous decision of its own in Bilal Koten [2002] UKIAT 04639 in which it was held that a deserter from the village guard scheme could safely relocate in Turkey because the scheme was no longer recruiting new guards. They proceeded to express their conclusion on the Secretary of State's appeal by the following reasoning:

"19. We felt this was a case where the adjudicator was severely hampered in the accomplishment of his task by the failure of the Secretary of State to send a representative. The appellant should have been cross examined on the issues which concerned the adjudicator and on his account generally.

20. The adjudicator should have had the appropriate passages in the CIPU brought to his attention and the relevant cases on the questions of returnability and the risk arising from desertion as a village guard.

21. While if one focuses only on the resolution quoted above ...

- that appears to be a typing error. It looks as if the intended reference is to the adjudicator's conclusion as to the applicant's credibility -

"... it would appear that the adjudicator accepted to the lower standard the appellant's credibility, it is clear from the whole determination that he was very concerned.

22. It is also clear that he did not consider the question of internal flight alternative and he should have done. The case of Bilal Koten cited above makes clear that persons who have deserted do have a viable internal flight alternative.

23. The November 2002 CIPU at paragraphs 5.56 to 5.60 indicate that since the cessation of the village guard scheme and the withdrawal of PKK fighters the issue is no longer of any great importance.

24. We feel that in these circumstances this case has not been properly considered. We do not feel it would be fair to simply allow the appeal. Indeed Mr Harrison accepted that since his principal complaint is with the approach and findings of the adjudicator the appropriate remedy would be a remittal. We agree that is the appropriate disposal in this case."

The IAT ordered accordingly.

8. The Deputy High Court Judge refused judicial review permission on the basis that this remittal to a fresh adjudicator was an exercise of discretion by the IAT which could not be faulted; but, with respect, that mis-describes the position. The first and governing question is: was there here a proper basis upon which the IAT might interfere with the adjudicator's determination? If the answer to that were yes, then there might be a discretion whether to remit the case or decide its merits at the IAT level. All this flows from the provisions of the Immigration and Asylum Act 1999 which confer the appellate authority's jurisdiction. But here, as I have said, the governing question is whether there was any proper basis upon which the IAT might interfere with the adjudicator's determination.

9. I should state first that I do not consider that the Secretary of State, or an immigrant if it were his appeal before the IAT, who had chosen not to appear before the adjudicator could properly obtain a remittal to another adjudicator purely in order to ventilate factual matters which he could have canvassed first time round. There may be exceptions, but that must surely be the general position; and it goes without saying that this rule or principle is even-handed between a Secretary of State's appeal to the IAT and an immigrant's appeal.

10. I add this. It concerns a matter raised with Mr Beard of counsel for the Secretary of State in the course of argument. It is within the court's knowledge that there are now a considerable number of adjudicator appeals at which no Home Office presenting officer appears. Various figures have been quoted. We are in no position to form a particular view about that, though it seems clear that the instances when this occurs are substantial in number. I have to say I am troubled by this aspect. I go no further than this. The Secretary of State may wish to consider whether he has a responsibility as the relevant public authority in matters of immigration control to afford more substantial assistance to the appellate authorities in the interests of their arriving at accurate conclusions. No doubt there may be questions concerning the allocation of resources. We have not gone into these matters at any depth or length today. I wish, therefore, to emphasise that I am making no criticism of the Secretary of State whatever. I merely say that the Secretary of State may wish to consider these concerns.

11. In this case at all events there is, in my judgment, a short point to be made on the adjudicator's decision which is, if my Lords agree, determinative of the judicial review. The adjudicator, as I have indicated, set out part of Mr McDowall's evidence. He set out also a material passage from the April 2002 CIPU report. As I see it these two pieces of material appear to point in opposite directions. Mr Blake was at pains to urge that the CIPU report merely says that since the end of 1999 the PKK has ceased hostilities and therefore there is no longer pressure on new people as of today to join the village guards. The appellant's case, however, says Mr Blake, is that he was a deserter and as such will be arrested. Mr Blake referred us also to a passage in Mr McDowall's written material:

"Those who enrolled [the village guard], and those villagers and villages that refused to enrol were duly listed by JITEM (gendarmerie intelligence). According to Dr ukran Akin, TIHV Istanbul, these lists are available to MiT, the National Security Organisation. This means that all those who desert or refuse service in the village guards are supposedly on record. We believe this has clear implications when considering the return of a refused asylum seeker in one of these categories."

12. For my part, I am by no means clear that the CIPU test is as limited as Mr Blake would have us accept. It seems to me that the adjudicator had to consider whether the in-country material tended to show that there was now no interest in persons in the applicant's position who had earlier deserted as a village guard. Mr McDowall's document bears a date 14.3.02.

13. I consider that there was a potential or actual tension or mismatch between Mr McDowall's evidence and the CIPU report and that tension was not addressed in the adjudicator's decision. Mr Beard, for the Home Office, submitted that the adjudicator's reference in paragraph 40 (which I have read) to the objective information is a reference to the CIPU report and that suggests that the adjudicator accepted that material. That may well be right. Mr Beard says that there is further material in the April 2002 CIPU report which underlines its potential applications to cases such as that of this applicant. That may be right also, but I do not find is necessary to go into it.

14. The short point, in my judgment, is that while I by no means say that the adjudicator was in any way not entitled to accept and act on Mr McDowall's evidence, there was in his determination a failure of reasoning. He needed to explain why he reached the conclusion that he did in paragraph 42 in face of the potential bite of the in-country material, in particular the CIPU report. In my judgment this was a defect in the decision sufficient to justify the IAT in interfering as they did.

15. I need to address one or two further matters. The Secretary of State complained in his grounds of appeal that the adjudicator did not consider the possibility of internal relocation. The Secretary of State submitted also that the adjudicator lacked the benefit of the Bilal Koten decision to which I have referred. I am not impressed with the internal relocation point. If the adjudicator was entitled to hold that the appellant was at risk of being stopped at the airport and then detained and tortured, internal relocation did not come into the matter.

16. The point relating to the Bilal Koten decision which I should say was not available to the adjudicator, having been decided later, is really the same as the point which I have already made. The adjudicator does not grapple with the tension between the April 2002 CIPU report and Mr McDowall's evidence. That is sufficient to dispose of this application against the applicant.

17. However I have to say that, in my judgment, the reasoning in the IAT's determination at paragraphs 19 to 24 is not satisfactory. Some of it is unclear. A reader of paragraph 19 might be forgiven for supposing that the IAT took the view that defects in the process before the adjudicator caused by the Secretary of State's absence from the hearing of that appeal themselves entitled the Secretary of State to succeed before the IAT - a proposition from which I have already distanced myself.

18. In short, I would dismiss this application for judicial review for the reasons I have stated.

19. I add, by way of footnote, that Mr Beard took a point as to the nature of relief available in a judicial review of this kind. I do not propose to say anything about that. Nothing in that part of the Secretary of State's case was, in my judgment, of any assistance to us.

20. MR JUSTICE CHARLES: I agree.

21. LORD JUSTICE JUDGE: I also agree. I should simply emphasise that the judgment does not either expressly or impliedly criticise the Secretary of State. It simply reflects on the concerns expressed by the Immigration Appeal Tribunal about the forensic process which had taken place before the adjudicator, and invites further consideration to be given to the possibility of an increase in the number of appeals to adjudicators in which the Home Office is represented by a presenting officer. If the opportunity to be represented before the adjudicator is neglected by either side, it would not normally be appropriate to allow that party a second opportunity properly to prepare and present its case. In this area of litigation the ordinary principle that there must be an end to litigation applies with equal force, as it does elsewhere.

(Appeal dismissed; no order for costs).