Egilmez v Secretary of State for the Home Department

This is an appeal by Ahmet Egilmez, aged 38, against a decision of the Immigration Appeal Tribunal, notified on 22 September 2004, who had allowed the Secretary of State’s appeal from an adjudicator in respect of his asylum and human rights claims.

The appellant is an Alevi Kurd who comes from South East Turkey. He arrived in the United Kingdom in a lorry from Turkey on 18 January 2003 and claimed asylum at the port of entry. The Secretary of State refused his claim by letter of 25 January 2003 on the basis that he did not qualify for asylum. Further, his removal from the United Kingdom would not put the United Kingdom in breach of any of its obligations under the European Convention on Human Rights.

The appellant’s appeal was heard by an adjudicator, Mr Markham-David, in March 2003 and his decision was promulgated on 4 April 2003.

His claim can be summarised as follows. He was arrested and detained on three occasions. The first was in 1994 when he attended the funeral of a friend who had been a PKK guerrilla. The funeral was filmed and those who attended it were later detained. The police came to his house and he was taken to Carsi police station where he was blindfolded and interrogated about his connections with the deceased. He denied any involvement with the PKK but the police suspected he was a separatist. He was detained for three days and deprived of food and water. He was beaten with truncheons on a random basis.

The second occasion was on 1 May 1996 when he attended a May Day rally in Corum. A fight broke out between the demonstrators and the security forces. About 40 or 50 people were detained, including the appellant. He was again detained for three days. He was accused of being a separatist, interrogated and beaten with truncheons and sticks.

Early the following year, 1997, he moved to Ankara where he was constantly visited by his Kurdish friends who were students at the university. In the spring of 1999 he went to meet two of his friends in the HADEP building in Ankara. Whilst he was there the building was raided by the police and 10 people, including the appellant, were arrested. He was taken to Cankaya police station where he was interrogated about why he had been in the HADEP building. This time the detention lasted one and a half days. During the detention he was beaten randomly. He was eventually released without charge as had been the case on the two previous occasions.

Soon after this he moved to Bodrum where he did not have any problems. In 2002 he moved to Adana and worked there as an engineer.

Up to this point the adjudicator accepted the appellant’s evidence. The appellant claimed that while working in Adana his family contacted him and told him the authorities were looking for him. They had raided his parent’s house in Elbistan; they did not say why, but wanted to take a statement from him. There were some inconsistencies in this aspect of the appellant’s account and the adjudicator did not accept the police would have been looking for the appellant in his home town. Nor did he accept that the appellant came to the United Kingdom because he had been told the police were looking for him in Elbistan.

The adjudicator directed himself that he nevertheless had to assess any future risk to the appellant in the light of his past history. He noted that he is an Alevi Kurd who had been arrested for attending the funeral of a PKK guerrilla, once for attending a May Day celebration and once for being in a HADEP building. He would be returning as an undocumented asylum seeker with a record of detention on suspicion of being a separatist on at least two, and probably three, occasions, the third of the three being, presumably, the one about which there may have been some doubt. He reminded himself of the then most up to date guidance given by the Immigration Appeal Tribunal in Hayser v The Secretary of State for the Home Department [2002] UKIAT 07083 and observed that the risk on return was different from the risk to someone living in Turkey. He concluded that the appellant’s position would be assessed by the authorities on his return, that his detention as a suspected separatist would come to light and that he would therefore be transferred to the anti-terror branch with the consequent risk of ill-treatment. Later country guidance has pointed out the distinction in Turkish cases between detention and arrest. The adjudicator was using ‘arrest’ in the way that detention falling short of arrest is currently understood.

On the basis of these findings the adjudicator was satisfied that the asylum and Article 3 thresholds were crossed.

The Secretary of State appealed to the Immigration Appeal Tribunal. He referred to paragraph 34 of Hayser where it was said by the tribunal that low level involvement with HADEP was not likely to result in a handover to the anti-terror branch unless accompanied by other suspicion generating factors. Because he was peripherally involved with the PKK and HADEP and always released without charge or reporting restrictions the adjudicator should not have allowed the appeal.

The Immigration Appeal Tribunal’s jurisdiction, because the adjudicator’s determination was promulgated before 9 June 2003, was governed by paragraph 22 of schedule 4 to the Immigration and Asylum Act 1999 which provides:

“(i)

Any party to an appeal….to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal.

(ii)

The tribunal may affirm the determination or make any other determination which the adjudicator could have made.”

There was therefore an appeal on fact as well as law. Laws LJ in Subesh and others v The Secretary of State for the Home Department [2004] EWCA Civ 56 dealt with the ambit of appeals on fact. They were, he pointed out, neither limited to an assessment on Wednesbury grounds, nor a rehearing. The Immigration Appeal Tribunal has to identify an ‘error’ on the part of the adjudicator. He said:

“An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one…. The true distinction is between a case where an 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. (paragraph 44).”

As Ms. Grey for the Secretary of Sate points out, an appellant does not therefore have to go so far as to show that the decision was perverse. For were that so an appeal on fact would add nothing to an appeal on law.

The tribunal directed itself in these terms:

“Although this tribunal must look at the facts as at the date of the hearing before us, we cannot interfere with an adjudicator’s decision unless it contains, in the case of this appeal, an error of law or fact. The tribunal will not overturn an adjudicator’s determination because of an error of fact unless a finding is plainly wrong or perverse. The first task, therefore, is for us to decide whether, at the time that he made it, this adjudicator’s determination does contain such an error. If it does, and as a result the determination is unsustainable, we should then look at the facts in the light of the current objective evidence and jurisprudence.”

The tribunal then assessed the adjudicator’s reasoning in paragraphs 15 to 17, to which I shall return, before reaching this conclusion at paragraph 18:

“For those reasons we find that the adjudicator has made an error of law. The reasons given for his findings are not sufficient to justify the finding and are not in accordance with the evidence. The overall finding is unsustainable.”

The first question is whether there was any basis upon which the tribunal was entitled to interfere with the adjudicator’s decision. For otherwise it must stand. The tribunal allowed the Secretary of State’s appeal because they concluded the adjudicator had made an error of law. With all respect to the tribunal, it is impossible to identify any error of law and they themselves in the preceding paragraphs had analysed the adjudicator’s findings of facts. First they examined the appellant’s known or suspected involvement with the separatist organisation, noting that the main evidence that could come into this category was attending the funeral of a PKK guerrilla. They stated categorically that attending a funeral is not evidence of support of that organisation. It should be noted that a film was taken of those who attended and that the authorities afterwards went to the appellant’s house and arrested him. The adjudicator found the appellant was detained on suspicion of being a separatist. In my judgment that was an inference that the adjudicator was clearly entitled to draw. What seems to me to matter is the authorities’ perception of the appellant as a separatist rather than what he may or may not actually have been doing. The tribunal’s categorical statement that attendance at the funeral was not evidence of support for the PKK was in my view unjustified. Support can be at varying levels ranging from active participation on the one hand to being a passive sympathiser on the other. Attendance at the funeral was the fact that caused the police to apprehend the appellant and detain him for three days and ill-treat him. When he was questioned it was put to him that he had been working with the deceased at the time he was killed. The deceased had, according to the appellant, been giving logistic support to other guerrillas. (See his answer in interview).

The adjudicator heard the evidence and was satisfied that the appellant was detained on at least two occasions on suspicion of being a separatist and probably also on the third occasion. The two occasions are plainly the first two occasions described by the appellant. On the third occasion, in Ankara in 1999, the evidence does not expressly refer to the appellant being challenged as a separatist, merely that he was questioned about why he was in the HADEP building, but I think the inference is clear that the authorities suspected he was a separatist.

When he came to consider the appellant’s situation on return to Turkey the adjudicator accurately described him as being an undocumented asylum seeker with a history of detention as a separatist. He thought there was a reasonable likelihood of his previous detentions coming to light and that he would therefore be transferred to the anti-terror branch with consequent ill-treatment amounting to persecution.

One of the points taken by the Secretary of State before the tribunal was that the adjudicator had misapplied the decision in Hayser. The tribunal cited part of paragraph 34 of the judgment in that case:

“…..at the lower end of the spectrum low level involvement with HADEP, even if known to or suspected by the authorities, is not likely to result in a handover to the anti-terror branch unless accompanied by other suspicion generating factors…..”

Mr Gill, who has appeared for the appellant, submits that it is important to look at the whole of what was said in paragraph 34 in order to appreciate the context of these words. Paragraph 34 includes the following two sentences which appear immediately before the passage just cited:

“In the light of this information we find that those handed over to the anti-terror branch could include individuals suspected of active involvement with HADEP. This is not necessarily limited to full members or those with a high profile.”

The tribunal referred to Hayser and mentioned that the “suspicion generating factors” referred to by the tribunal in paragraph 34 were in fact set out in paragraph 70. However, they appear to have regarded the all important factor as the level of the appellant’s known or suspected involvement. They dismissed attendance at the funeral as evidence of support and concluded that as the second and third occasions were occasions on which the appellant was not targeted, there was nothing about them to indicate the authorities viewed him as a suspected separatist. However, as the tribunal mentioned, the appellant was accused during the second detention of being a separatist, but the tribunal distinguished this from the authorities believing he was a separatist and implied he would not have been released after a few days if they had so believed. There was nothing to distinguish him from Kurds generally who were all, to an extent, viewed as separatists.

In my judgment the adjudicator carefully found the facts accepting the evidence of the three detentions but rejecting the appellant’s evidence that he left Turkey after he discovered the authorities were looking for him. The adjudicator then drew inferences from those facts about the risk he faced on return to Turkey. In my judgment those inferences were plainly open to him although other adjudicators might have come to a different conclusion. He committed no error of law. That, to my mind, disposes of the appeal because the tribunal allowed the appeal to it on the basis that he did commit an error of law. No error of law is identified by the tribunal, which in my judgment fell into error in so concluding. Had they gone on to consider the appeal as one of fact rather than law, they would in my view, on a correct analysis, have concluded that while they may have preferred a different view of the facts from that taken by the adjudicator, the view he took and the inferences he made were open to him. This was not a case where a proper process of reasoning required him to come to a different conclusion. See Laws L.J in Subesh. The inferences he drew were not plainly wrong.

I would therefore allow the appeal and restore the decision of the adjudicator. The tribunal had no basis for interfering with his decision.

Lord Justice Longmore: I agree.

Lord Justice Ward: I agree.