MY (Turkey) v Secretary of State for the Home Department

MY appeals against the dismissal by the AIT of his appeal from an adjudicator’s decision, which dismissed his appeal from the Secretary of State’s refusal to grant him asylum and related humanitarian relief. The broad submission is that the adjudicator, and the AIT in its reconsideration of her decision, failed to follow applicable country guidance cases.

The appellant is a Turkish Kurd of the Alevi faith, who is now aged 37. He entered the United Kingdom illegally in March 2001 and immediately claimed asylum. He said he feared persecution if returned to Turkey because he had been a supporter of the Kurdish separatist movement, PKK.

The adjudicator largely accepted the appellant’s evidence, which the AIT summarised as follows:

“3.

The appellant is a Kurd from the Bingol province of Turkey, one of the last parts of Turkey to remain in the state of emergency. He is one of five brothers and five sisters. Of these, his eldest brother, (at least), remains in Turkey. His father died in 2002. In his village, it was common practice for the inhabitants to assist the PKK by providing food, medicine and information. Both the appellant and members of his family were so involved. This led to frequent raids upon the village by Turkish forces, sometimes resulting in the detention of those rounded up. In 1995, when the appellant was aged 25, he was arrested and accused of providing food for the PKK. In the course of his detention he was beaten up but released without charge, apparently because there was no evidence to convict him. It appears that he was not specifically targeted for this treatment.

“4.

In May 1997, he was detained for the second time. In contrast, the appellant was subject to specific attention. He was transferred from the local gendarmerie to the Bingol headquarters where he remained for a month. He was ill-treated. He was not, however, formally brought before a court or convicted of any offence arising from his activities.

“5.

In February 1999, in the course of widespread demonstrations following the arrest of Abdullah Ocalan, the appellant himself participated in a demonstration. He and others were arrested and accused of attending an illegal rally. Although detained and ill-treated, he was released the next day without charge.

“6.

Finally, on 25 December 2000, the security forces rounded up the entire village. They were subjected to indiscriminate violence and the appellant and others were arrested and ill-treated. He was detained for five days.”

Following the incident in December 2000, the appellant left his wife and children in the village and travelled to Istanbul, where he remained for one and-a-half months before coming to the United Kingdom. The adjudicator found that the appellant had never been charged or taken to court for any offence. He had claimed he had been taken to court when he was detained in May 1997, but the adjudicator rejected this part of his evidence.

The adjudicator found that neither the appellant nor any member of his family had been, or had been suspected of being, members of the PKK. He had not been asked to be an informer and there was no evidence that he was being monitored or watched at the time of his departure. At that time the authorities were not pursuing him and there was no evidence that the authorities had been asking about him since his departure. The latter finding involved rejecting the appellant’s evidence to the effect that the authorities had been asking for him.

In her determination, the adjudicator said that she had read and taken account of the country guidance case IK (Returnees - Records - IFA) Turkey [2004] UKIAT 00312. She had relied on it for the purpose of assessing the risk to the appellant if returned to Turkey. This was the latest country guidance case in which the Tribunal cited extensively from its earlier country guidance case of A (Risk, Guidelines, Separatist) Turkey [2003] UKIAT 00034.

The adjudicator expressed her conclusions as follows:

“54.

I find that the level of interest that the authorities had in the Appellant was a general one and only arises from the suspicion that he was involved with the PKK. There was, as he says, no evidence to connect him to the PKK. Although there is a possibility that his detentions could be recorded by his local gendarmerie. I find that these will show that his detentions were not particularly frequent (4 in the space of 5 years) and not significantly lengthy and that he was not specifically targeted. So I do not find that he would be at any real risk of persecution upon return in his home area.”

As to what would happen at the airport upon his return, she concluded:

“57.

I find that looking at all the circumstances and evidence in the round, that this Appellant is likely to be stopped and questioned upon return due to his absence from the country and his failed asylum claim. This does leave the Appellant in the position of having to answer questions as to when he left and why. These can be answered by him stating that he wished to leave because he was tired of the prevailing situation at that time. Although his former history is very unlikely to be recorded on the GBT computer system as he was not charged, the airport could then make further enquiries of his local authorities.

“58.

However, if there are local records, then I find that the Appellant can only be regarded as and will only be recognised as a possible very low level sympathiser of separatist’s organisation. Therefore, although he would face questioning and detentions, there is a low risk that this would be likely to be severe or lengthy or to result in any worse treatment for the Appellant. I do not find, therefore, that he has established a well-founded risk of persecution upon return under the grounds of the Refugee Convention.”

On the reconsideration by the AIT, Mr Paul Richmond represented the appellant, as he does before us today. His criticisms of the adjudicator’s decision are very similar to those he now makes of the AIT’s decision. The thrust of these criticisms is, as I have said, failure to follow the country guidance decisions, namely IK and A. These cases are well known and it is unnecessary for me to cite from them at length in this judgment.

I accept Ms Hoskins’ summary of the guidance they give, which she has set out in her skeleton argument as follows at paragraph 11:

“(a)

A returnee to Turkey is likely to be questioned on his arrival at Istanbul airport or other border point;

“(b)

Officials questioning returnees are likely to have access to the GBTS computer system, which may hold information on the returnee;

“(c)

Although it may hold information about official arrests, the GBTS system is unlikely to record “detentions” which have been carried out without court sanction or charge;

“(d)

There is no evidence that NUFUS information is available at border points;

“(e)

If the returnee is deemed to be someone of interest to officials, either because of the information held on the GBTS or because of other risk factors, he may be detained at the airport police station. Detention there does not amount to ill-treatment;

“(f)

If the returnee is detained, enquiries may be made of authorities in the returnees’ home area. Those authorities may hold information about detentions without charge. If such information is sought, and demonstrates that the returnee is of adverse interest, the returnee may be handed over to the anti-terror police, and detention by them leads to a risk of persecution;

(g)

There are therefore a series of risk factors (which may invite suspicion by officials, leading either to information being held, or to enquiries being made) which should be considered by a decision maker in deciding whether someone is at risk on return. However, these should not be regarded as a checklist and each case should be determined on its own facts.”

I also accept (in the words of paragraph 18.4 of the AIT Practice Direction) that:

“Failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for … appeal on a point of law.”

So I turn to the grounds of appeal. The main ground is that the adjudicator and the AIT erred by finding, contrary to the country guidance cases, that those like the appellant who are only suspected of connection to or sympathy with the PKK do not face a real risk of persecution on return to Turkey. In other words, as Mr Richmond put it, the adjudicator and the AIT pitched the threshold for the risk on return at too high a level. This ground is linked to the next, which says that the AIT’s findings about this are confused and contradictory.

So where does Mr Richmond say that the adjudicator and the Tribunal erred? So far as the adjudicator is concerned, he refers to paragraph 47 of her reasons, where she says:

“He describes himself as a PKK supporter and I find that he has in the past assisted the PKK. However, he has not been suspected of being a separatist himself and this is shown in the form of the interrogation which simply chooses to accuse him of helping the PKK. He has never been asked to become an informer on behalf of the authorities.”

The Tribunal dealt with this in paragraph 11 of its reasons. It sets out the factors listed in paragraph 46 of A which the Tribunal in that case considered to be material to the assessment of whether the authorities would suspect a particular claimant or, in other words, have any interest in him. The first of these is:

“The level if any of the appellant’s known or suspected involvement with the separatist organisation. Together with this must be assessed the basis upon which it is contended that the authorities knew of or might suspect such involvement.”

The Tribunal reminded themselves of this guidance, and then referred to a number of paragraphs of the adjudicator’s decision, including paragraphs 47 and 54, noting that the appellant was only a supporter and not a member of the PKK. They then said:

“13.

In our judgment, it is clear that the Adjudicator was drawing a distinction between those, like the appellant and his family, who sympathised with the PKK and supported it through offering assistance by way of food, medicine and information on the one hand and members of the PKK, a banned terrorist organisation, on the other. In our judgment, that distinction was a perfectly proper one for the Adjudicator to make. Whilst, of course, a person who assists the PKK has links with that organisation to that extent, it is apparent to us that the Adjudicator was classifying the appellant's activities as falling short of the level activity and commitment shown by an active member of the group. Furthermore, whilst the entire village might have been suspected by the authorities as potentially members of the PKK, the Adjudicator’s analysis of the appellant’s account establishes that the authorities never had in their possession adequate material to identify the appellant as a PKK member which, of course, he was not. Accordingly, the type of assistance provided by this appellant was exactly the same assistance proffered by the entire village and the appellant himself did not fall into an exceptional category. Further, there was no evidence before the authorities that the appellant himself did not fall into an exceptional category. Further, there was no evidence before the authorities that the appellant would be perceived as having any greater involvement than anybody else. It seems to us that this was a proper matter for the Adjudicator to take into account when assessing the risk faced by the appellant …

“18.

In our view, neither the case law nor the background material goes as far as establishing that anyone who has supported or assisted the PKK is at risk. We accept that support for the PKK is capable of founding a sustainable claim for refugee status and that it is not only persons who are PKK members who are at risk. That, however, is not determinative of the appellant’s appeal. It was for the Adjudicator to make their own assessment of risk based on the circumstances of the appellant’s account.”

Mr Richmond says that in paragraph 47 of her decision the adjudicator, and in paragraph 13 the Tribunal, were saying that a mere supporter of the PKK was not at real risk; only active members of the PKK or those who engaged in exceptional separatist political activity were. He says that in paragraph 18 the Tribunal have contradicted what they said in paragraph 13.

I do not accept these submissions. They start from the premise that anyone suspected of connection to, or sympathy with, the PKK are at real risk of persecution. That is not what the country guidance cases say, as Mr Richmond accepted this morning. The assessment of risk depends upon a large number of factors. One obvious and important factor, as the case of A says, is the level of the claimant’s known or suspected involvement with the PKK. Suspected connection to or sympathy with the PKK is capable of showing risk, but not determinative, as the Tribunal correctly say in paragraph 18.

Neither paragraph 47 of the adjudicator’s decision nor paragraph 13 of the Tribunal’s decision says anything which, in my judgment, contradicts this. All the Tribunal are saying is that the adjudicator was justified, in her assessment of the risk of the appellant, to take account of the fact that his involvement with the PKK was at a lower level than those who were members or exceptionally politically active, and also that it was at the same level as many others in his village.

This brings me to the next ground of appeal, which is that the AIT erred in law by imposing a requirement that the appellant differentiates himself from his fellow villagers as a condition precedent to a finding of risk on return. This complaint arises out of the latter part of the passage from paragraph 13 which I have already quoted and a further passage of paragraph 17 where the Tribunal criticised the adjudicator's characterisation of the appellant’s ill-treatment, but concluded that this did not undermine the remainder of her reasoning, and added:

“Had there been an exceptional level of violence, this might have been evidence that the appellant’s case was different from others in the village and that the risk he faced was accordingly greater. Yet there was none.”

Mr Richmond says that the authorities at the airport will only be interested in the appellant; how his fellow villagers will be treated will be irrelevant. That may be so, but again it seems to me that Mr Richmond’s submissions misunderstand what the Tribunal said. It did not say that the appellant had to show that he had been worse treated than his fellow villagers. All it was saying was that in making the assessment of the level of risk faced by the appellant, it was relevant that the authorities had not in the past singled him out from his fellow villagers for detention and ill-treatment. I think this was something which could be taken into account.

The next ground alleges an error of law in the AIT’s approach to the assessment of whether the appellant’s record of previous detentions is of such a nature and degree as to give rise to a real risk of suspected support for the PKK on return. In support of this so called error of law, under the headings “Errors in Relation to the Application of the Risk Factors Set Out in A and IK” and “Failure to Consider such Risk Factors”, Mr Richmond seeks to deploy a panoply of arguments on the merits of the appellant’s case.

The short answer to these arguments is, I think, that they do not raise errors of law. They are developed by reference to what A and IK say or do not say, but appear to overlook the fact that in these country guidance cases the tribunals made it clear that the risk factors which they identified were non-exhaustive and should not be regarded as a checklist. Each case was to be determined on its own facts. Similar arguments to those now advanced were put before the AIT and were rejected. It rightly noted that the assessment is:

“Not an exercise in ticking boxes or scoring points on each occasion that a risk factor is identified.”

For these reasons I do not propose to deal with all the points made by Mr Richmond in his skeleton argument, although I should say that I do not think there is in fact anything in them, individually or cumulatively, which undermines the Tribunal’s decision.

The gravamen of the complaint is that the adjudicator and the AIT failed to give sufficient weight to the detention and ill-treatment of the appellant, which included detention for a month in 1997, not at the local gendarmerie, but at the Bingol Police Headquarters. But from the AIT’s summary of the facts which I have quoted and the adjudicator’s decision, it is self-evident that these matters were taken into account. The weight to be given to them was for the specialist tribunals, whose decisions this court should support, absent a material error of law. There was, in my judgment, no such error in this case.

Mr Richmond made a particular complaint against the adjudicator, that she had omitted in her reasoning to make it clear that she had taken account of the fact that the appellant’s village was in Bingol, an area in the south or east of Turkey which until recently, at least, was still under a state of emergency because the separatist threat there remained great. There is no doubt from the adjudicator’s decision that she was aware that the appellant did indeed come from that area because she refers to it a number of times in her reasons, but it is correct to say that she does not identify that as a factor in itself as affecting the risk which the appellant faced. It would obviously have been preferable if her decision had said so in terms, but adjudicators are likely to be familiar with the areas in which their cases involve and have knowledge of conditions there. The adjudicator refers to Bingol in terms which indicate that she is familiar with where it is and will therefore have been familiar with conditions there at the material time. I do not think her failure to expressly refer to it is a factor which she took into account flaws her decision or that of the AIT which took the same view.

For those reasons, I would dismiss this appeal.

I agree.

I also agree.