NS v Secretary of State for the Home Department

LORD JUSTICE BROOKE: This is an appeal by an asylum seeker against the decision of an immigration judge on a reconsideration dated 29 June 2005, whereby he refused her appeal against the Secretary of State’s refusal of her asylum claim on 22 March 2003. The appellant is a 32 year old Turkish Kurd who came to this country on 15 March 2003 and applied for asylum on arrival.

The immigration judge found that the appellant was not a member of any political organisation and had no significant history of political activity. She would not be seen as a significant participant in any separatist organisation. She came from a large family of eight children and only a minority of her siblings may have come to the attention of the authorities. In particular one of her sisters had been a political activist, who was subjected to torture and other forms of mistreatment by the Turkish authorities and detained on a number of occasions. This sister had come to this country and been granted refugee status, but the immigration judge found that there was no evidence that the appellant had participated in any of her sister’s later political activities that had given rise to her persecution. He added that there were a number of family members who, like the appellant, were not political activists and were able to remain in Turkey without persecution from the state. Even on her own evidence, the level of the appellant’s involvement with a separatist organisation was that of a minor supporter and not of an activist who might be of any interest to the Turkish authorities.

There was evidence that the appellant had been detained for a short time on three occasions between 1996 and 2003. The immigration judge found that in 1996 the Turkish police stopped her with three of her siblings, and when they were unable to produce their identity cards they were detained and beaten and questioned about political activities. The three girls may have been also subjected to sexual abuse. They were all released the following morning without charge, with a warning not to continue with their activities. The immigration judge then found that in 1998 the appellant was justifiably detained for a short time, because she had written to a PKK prisoner. He said it was quite understandable that the authorities would have an interest in her and want to question her on this occasion. In February 2003 the appellant was detained for a third time following an anti-war rally. The immigration judge said that the evidence suggested that the soldiers slapped her, but there did not appeal to have been a degree of ill treatment such as to cause her to require international protection.

The immigration judge found that these three very short periods of detention related to separate and isolated incidents and were not part of a sustained or systematic programme of persecution organised by the Turkish authorities against her. She has never been charged or placed on reporting conditions and there were no indications that if she should return to Turkey she would face any such charge. Although she had documents in her possession that related to complaints to the Turkish Human Rights Commission after police officers had photographed her at May Day demonstrations in May 1999, the immigration judge did not find that this would amount to a significant breach of her human rights. He did not find credible any suggestion that she would have been subjected to surveillance or monitoring by the authorities. Even if inquiries had been made by the local police to the appellant’s family and the village muktar, there was no indication that she was wanted for any offence or that there were any court warrants or police inquiries outstanding against her. He did not think it particularly credible that she was asked to be an informer, and there was no credible evidence which would indicate to the authorities that she was a potential informer. There was also no evidence that she would be seen as a military draft evader. She had not been involved in any political activities either in Turkey or since arriving in the United Kingdom, on her own evidence.

The immigration judge read into his judgment paragraphs 46 and 47 of A (Turkey) [2003] UKIAT 00034, and the 13-point summary which comes at the end of the determination in the recent country guidance case of IK (Returnees-Records-IFA) Turkey CG [2004] UKIAT 00312. In view of his findings he did not consider that her name would appear on the computerised GBT system which was available to the border police at booths in Istanbul airport. He also found that she would not have to lie about her political actions or membership, because by her own admission she was not a political activist and had no convictions or outstanding warrants. He found that the Turkish authorities would probably have no interest in her and, as with her previous short detentions, would release her without charge or further requirements. Given these findings, the immigration judge dismissed her appeal on Geneva Convention and on human rights grounds under Articles 2 and 3 of the ECHR. He also dismissed her appeal on Article 8 ECHR grounds, and nothing turns on that finding on this appeal.

When granting permission to appeal, Buxton LJ said that, although the immigration judge’s findings that the appellant would not be recorded on the GBT system and would probably not be of interest to the Turkish authorities might on one view be seen as fatal to this application, she was entitled to a ruling by this court as to whether the immigration judge’s failure to address expressly each of the factors listed in the Country Guidance case of IK amounted to a failure to take into account material matters.

In his spirited submissions, Mr Harding who appears for the appellant has taken us to both these two recent leading decisions in the AIT. He takes first the decision in A (Turkey). The relevance of this lies in the later Country Guidance case of IK. The tribunal said at paragraph 78 that:

“the starting point in any enquiry into risk on return should normally begin, not with the airport on return but with whether the claimant would be at any real risk of persecution or a breach of Article 3 in his home area as a consequence of his material history there. If the answer to that is ‘no’, then the claim cannot normally succeed, unless of course the risk arises from or is aggravated by other factors, such as his material activities abroad or in other parts of Turkey”.

This is no doubt why the immigration judge started the analysis at the end of his judgment with the decision in A (Turkey). He read into his judgment, as I have said, the whole of the material parts of paragraphs 46 and 47. Mr Chamberlain has reminded us that the reason why paragraphs 46 and 47 stand where they do is made clear from the preceding paragraph 45, which reads :

“More serious issues arise in the case of persons who, as is recorded in paragraph 6.93 of the CIPU report, are suspected of membership of the PKK, left wing radical organisations … militant Islamic groups, or anyone suspected of giving support or shelter to one of those organisations. Such persons are handed over to the Anti-Terror Branch, and it was common ground before us that in those circumstances they would face a real risk of persecution or breach of their human rights”.

It is the words ‘anyone suspected of giving support or shelter to one of those organisations’ which are fleshed out in the two paragraphs which follow.

In paragraph 46 there is an inexhaustive list of 15 items which the IAT considered might be material in giving rise to potential suspicion.

The immigration judge made findings on each of these matters, although he did not list them. It is true that he made these findings in different parts of his determination, but in my judgment he clearly had in mind all these factors. For instance, in the short paragraphs 93, 96 and 97 he made short findings which clearly refer back to different items on the check list in A (Turkey).

What Mr Harding complains of is that after making all these individual findings, the immigration judge fell into error by not standing back and looking at these findings, as he put it, holistically and cumulatively. He said that under a number of the items there were some points which could be rated in the asylum seeker’s favour. For instance, it was said at paragraph 67 that “she may have been seen by the authorities as a supporter of the separatist cause”. She had been detained on three occasions, and Mr Harding drew our attention to the violence to which she was subjected on at least two of these occasions. He drew our attention to the fact that members of her family were certainly associated with a separatist movement in an active way, and that the authorities have been reported as calling on her home after she had gone. He complains that instead of making individual findings the immigration judge should have rounded his analysis off by looking at the situation in the round.

He then goes to the case of IK. As I have said, the case of IK makes it clear that if there is a finding that the asylum seeker would not be at risk in her home area then that will be usually the end of the matter, but Mr Harding challenges the present decision on the basis that the immigration judge had failed to take into account a number of the matters to which attention is drawn in IK. For instance, he says that whether or not she is recorded on the GBT computer system (which records outstanding arrest warrants, previous arrests, restrictions on travel abroad and so on), this is not the end of the matter. If enquiries had been made, they might have thrown up other information which might have led the Turkish authorities to interrogate her more harshly and to subject her to torture; and in this context he submits that, particularly in the light of the way that she and her sisters were treated in 1996, the immigration judge should have paid attention to the likelihood of her being subjected to similar treatment on her return. His main complaint under this heading is that the immigration judge did not make a specific finding that there was no risk to her in her locality.

Mr Chamberlain, who appears for the Secretary of State, submits that as the immigration judge has checked off the different items in IK one by one, the finding that the appellant would not be recorded on the GBT system was fully justified and Mr Harding did not suggest anything to the contrary. He said it was possible that the national police would have information showing that she had left Turkey illegally. Clearly what was known as the Nufus registration system would record certain innocuous details, but would not record anything likely to draw adverse attention to the appellant. It was possible that she would be detained by airport police either because she was recorded as having left the country illegally or from her travel document, although the immigration judge was provided with no evidence as to the status of her passport. Mr Chamberlain suggested that in that event, further enquiries might be made of the local police who might have more extensive records than those available at border control; of anti-terror police; or the MIT.

However on the findings that the immigration judge made, none of these would be likely to be interested in this appellant. Even assuming that she gave completely truthful answers, she would not be admitting membership of any political organisation or any convictions or warrants, as the immigration judge found. Her truthful answers would not engage the interests of the authorities. Mr Chamberlain finished by submitting that the immigration judge complied with his obligation to consider in the first place the attitude of the authorities in the appellant’s locality. Having found for proper reasons that she would not be of interest to those authorities, he was justified in concluding that she would not be at risk on return, even if she was subject to questioning at the airport or thereafter.

In my judgment these submissions are well founded. Of course, any judgment is likely to be imperfect when it is submitted to the kind of scrutiny to which Mr Harding submitted this judgment, but in my judgment it is quite clear that the immigration judge, who clearly took a great deal of trouble about this case, did make all the necessary findings. He did turn his attention to all the matters about which he was charged with having responsibility to turn his attention, and he cannot be properly criticised for failing to string them all together as Mr Harding suggested, given his succession of findings that this was not a lady in whom the authorities were likely to be interested. Yes, there were certain matters which he considered that were in the other direction, but the judgment was his and in my judgment he reached a conclusion which he was entitled to reach on the evidence, which discloses no error of law.

For these reasons I would dismiss this appeal.

LORD JUSTICE DYSON: I agree.

LADY JUSTICE HALLETT: I also agree.