Ekinci v Secretary of State for the Home Department

J U D G M E N T

Tuesday, 15th November 2005

1. LORD JUSTICE SEDLEY: This is a renewed application for permission to appeal made by Ms Fielden following refusal on sight of the papers by Brooke LJ. He was unable to detect any justiciable error of law in the AIT's decision.

2. The applicant is a Turkish Kurd, a draft evader on his own admission, who claimed to be at risk of arbitrary arrest and ill-treatment because of his support for the PKK. He had been arrested twice, once in February 1999 and once in March 2000. On the second occasion he had escaped from eight armed policemen. That was his account, but the adjudicator disbelieved it. She disbelieved not only the latter aspect of his history as intrinsically unlikely, but the rest of his account of his political involvement. She found that the only risk that he faced on return was the non-Convention risk of arrest and imprisonment as a draft evader.

3. In particular the adjudicator rejected two documents produced by the applicant in support of his case: one was an arrest warrant, dated 15th February 2001, accusing him of revolutionary activity and propaganda on behalf of the PKK and its political wing, HADEP; the second was a letter or memorandum from the Public Prosecutor to the Head of Security, dated 5th April 2000, asking that the search for the applicant be kept up. These were translated and, so far as he was able to do so, authenticated by an expert, Mr JD Norton, of Durham University's Centre for Turkish Studies. Mr Norton is a former military officer with experience in Cyprus and an expert translator from Turkish. He is not, of course, a specialist document examiner.

4. The adjudicator, whom Ms Fielden had addressed in the light of the IAT's decision in Tanveer Ahmed, considered the documents to be unreliable. Although at one point she denounced them as fabrications, something which was arguably excessive and unjustified by the material before her, her essential approach for the rest conformed with the teaching in Tanveer Ahmed that documents might be genuine, both in their material and in their origin, but unreliable nevertheless having been manufactured to order; that is to say, not literal forgeries or fakes, but still fabricated in having been produced by a corrupt official in the appropriate department, on official paper, using official material and stamps. Given in particular the inverse dating, as it appeared to be (the follow-up letter appeared to precede the warrant rather than to follow it), and her unwillingness to believe much of the rest of the applicant's account, the adjudicator was not prepared to let these documents make up the weight that the rest of the applicant's account, in her judgment, lacked.

5. In these, and indeed all other material respects, the IAT upheld her, even though they accepted that in a number of respects her findings had been more speculative than evidence-based. I will return to this in a moment.

6. Ms Fielden, however, rightly and understandably concentrates her submission on obtaining permission to appeal in order to redeem Mr Norton from the slur which she says has been cast upon him by the adjudicator's decision, and by that means to secure a reappraisal by a different adjudicator of the same evidence.

7. If this were arguably a case (and this court occasionally sees such cases) of the unwarranted rubbishing of an expert by an appellate body I would not hesitate to give permission to appeal. But it is not in my view such a case. The adjudicator, even though she has at one point, I think, gone further than she should have done in expressing her findings, has done no more in the substance of her decision than observe accurately where Mr Norton's expertise lies and asked herself the correct Tanveer Ahmed question: are these documents, wherever and however they were produced, reliable documents?

8. Ms Fielden is right to say that another adjudicator might have thought they were, but this adjudicator did not. In the AIT's view no question of law arose from her decision. If that is right, then it is not to the point that, as is frequently the case in a fact-finding exercise, another adjudicator might have made something quite different of the same evidence.

9. As to a number of matters on which the adjudicator was thought by the AIT to have speculated, and done so adversely to the applicant, the AIT said, at the end of paragraph 24, this:

"It may well be that the Adjudicator made assumptions which were somewhat based on speculation. Whether this was material to the outcome depends on the remainder of her reasons for her findings. For this reason, we will return to this point after we have considered the remainder of the challenges to the Adjudicator's reasoning."

10. Over the succeeding paragraphs the AIT do exactly that, finding no error of law or of approach in the adjudicator's assessment of the material matters. At paragraph 31 they return, as promised, to the principal issue:

"We now turn to assess whether the issue we have described at paragraph 24 above is material to the outcome, having considered all the other grounds and found that they have not been made out. We can be brief in this regard. It is only necessary for us to say that we are satisfied that, even leaving aside the Adjudicator's somewhat speculative assumptions (as described in paragraph 24 above), the remainder of the Adjudicator's reasons are adequate in law to fully support her adverse credibility assessment and her findings of fact."

Their conclusion, as expressed by the Senior Immigration Judge in the chair, Ms DK Gill, was that the original tribunal, that is the adjudicator, did not make a material error of law.

11. I accept entirely that in some cases, perhaps many cases, a false appreciation of some elements of the evidence may undermine the entire conclusion, or may display an unacceptable premise of disbelief. But the AIT's analysis here satisfied them, for reasons that they explained fully and convincingly, that the evidence-based grounds of disbelief stood clear of the mistaken or speculative grounds. Hence their finding of no material error of law, a finding which itself is, in my judgment, not vitiated by any separate error of law or of approach on the part of the AIT.

12. In the event, therefore, in spite of the criticisms advanced by Ms Fielden, there is in my judgment no realistic possibility that this court, if I were to give permission to appeal, would find either that there was a vitiating error of law which undermined the adjudicator's decision and compelled the AIT so to find, or alternatively, any error of law in the AIT's own approach to the adjudicator's decision.

13. Therefore, concerned as one always is about the return of dissident Kurds to Turkey, I fear that this court is bound to accept the appraisal made by the specialist tribunals below and cannot intervene on any ground of law notwithstanding the, as always, helpful submissions made in the applicant's interest by Ms Fielden. The application is therefore refused.

ORDER: application refused; public funding assessment for appellant.