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

This is an appeal from a determination of the Asylum and Immigration Tribunal promulgated as long ago as 26 February 2006. As will be clear from that date alone, there has been an unfortunate history to this matter that I need to refer to. Permission was given by the tribunal itself to appeal against that determination. That permission was granted on 4 May 2006. The rules require that within 14 days of that grant an application is made to this court by way of grounds of appeal to this court. That was not done. The reason that it was not done was that the solicitors, who are experienced in this area of work, by reason of mistakes in their office administration caused the file not to be placed in front of a lawyer who would take the correct steps but, for reasons that are not wholly clear, was placed in a pending or redundant file area. The error did not come to light until nearly a year later, and the present appeal was filed in this court on 7 March 2007, that is to say one year after the original decision. It has been brought on, I venture to note, within two months of that.

The court has recently had occasion to address what unfortunately appears to be a recurrent problem of failure to pursue appeals for which the Asylum and Immigration Tribunal has granted permission, and has set out what is conceived to be the correct approach to that difficulty in the case of BR (Iran) [2007] EWCA Civil 198.

The principles set out there effectively say that if the fault is that of the lawyers and if the Asylum and Immigration Tribunal has considered, as an expert tribunal, that the matter is fit for this court, it would not be right by reason of lawyer’s failures for the appellant to be deprived of the right to bring the matter before this court. We, therefore, in this case grant an extension of time, which it will be seen as an extension of time of just short of one year.

In BR (Iran) the court made it clear that in such cases it will carefully look at the conduct of the lawyers who have been responsible for the delay to see whether any form of disciplinary sanction should be imposed. In this case the solicitors have properly responded to the court’s complaint about their conduct, have indicated that they fully accept that the fault was one of an administrative nature in their offices, and have given assurances that careful steps have been taken to ensure that this does not happen again. The court was glad to see that the matter had been taken with the seriousness that it deserves and will not, therefore, be pursuing this matter any further.

The reason why the court has to concern itself with these questions are, first of all, that it is wholly unsatisfactory to have to deal with appeals a long time after the case has originally been heard; and, secondly, we cannot ignore the fact that in immigration matters the effect of a delay in pursuing an appeal, if the appeal is in due course unsuccessful, will be wrongly to extend the stay of the immigrant party in this country, which has implications both for them in organising their lives and also for the public interest of the United Kingdom.

Before I leave this aspect of the matter, I fear I need to say one other thing about it. In circumstances that will become apparent in this judgment in due course, when the matter came before the Asylum and Immigration Tribunal, Mr Richmond, who then had taken the case over apparently fairly recently and who has appeared before us, sought to put before that tribunal a certain number of documents that had not been before the court below in order to establish a point that was in issue there as it is in issue here. The Asylum and Immigration Tribunal expressed considerable concern at those documents not having been made available earlier, whether by solicitors or by counsel, and complained in fairly severe terms in paragraph 7 of its determination about the lateness of which the documents had been produced. This court is always concerned when tribunals for which it is responsible have occasion to criticise the conduct of the parties or their advisors that have made those tribunals’ work more difficult. Again one is not going to pursue that matter further, but we do have to underline again that the already extremely difficult work of running a heavily burdened Asylum and Immigration litigation organisation is made far more difficult if rules as to the production of documents are not adhered to.

None of that, however, affects the substance of the matter to which I now turn. Although I will refer to her as IM, and of course that is more convenient. The case will continue to be entered as IM (Turkey) v the Secretary of State for the Home Department and, where it is reported, the initials IM will be substituted for any place in which I speak of the applicant. She is a Kurdish Alevi citizen of the Republic of Turkey. She was born in November 1976 and entered this country illegally on 28 June 2000, I note she then being 24 years of age, and claimed asylum here. Regrettably, that claim does not seem to have been dealt with by final refusal by the Secretary of State until April 2004, when her removal to Turkey was ordered.

The basis of her claim at that point was, first of all, that she had been interrogated as long ago as 1997 as a result of a demonstration she had taken part in in support of a prominent member of the Kurdish community. After that in June 1997 she had gone to live with her aunt in Istanbul. She became, as she said, involved in working for Atilim, that is the newspaper of a pro-Kurdish group, and also -- and this is the point upon which this case really turns -- working for an organisation called EKB, whose purpose was to campaign against ill-treatment in detention in Turkey of women and particularly the rape of them. Her claim was that in the year 2000 she had been arrested and interrogated for that reason and was then released and decided to leave the country; and that is why she arrived here.

Her appeal was heard by an adjudicator, Mrs Jones, unfortunately (this is another aspect of the delay in this case) as long ago as 25 August 2004. The adjudicator did not accept the applicant’s description of her ill-treatment at home or on political grounds but she accepted her evidence as to her experience in Istanbul, and found as a fact that this lady was a member of the EKB Women’s Group, that she distributed the magazine Atilim from time to time and that she was arrested, detained and ill-treated by the police in the year 2000. The adjudicator then had to address herself to the likelihood of ill-treatment of the appellant if she was returned to Turkey. She did not accept that there was any meaningful engagement of the applicant with any separatist group but said this in paragraph 30 of the determination:

“The cause of her problems was her involvement with a women’s group whose activities caused embarrassment to the authorities by drawing attention to their sexual abuse of women detainees. Her activities for this group appear to have been of a minor nature in attending demonstrations and distributing their literature.”

There was no political threat to this lady; she was not likely to be at risk of arrest and detention at Istanbul airport, nor of any interest to the authorities, despite the fact that she is the daughter of a person who is a prominent figure in HADEP and has been given, so the adjudicator found, refugee status in France.

The adjudicator then turned to what she saw as the nub of the problem and said this in paragraph 36:

“The appellant left Turkey four years ago and the final question remains as to what would be the attitude of the authorities if she were again to participate in the activities of the EKB women’s group. This is a legal organisation whose objectives are based on a moral absolute -- that women should not be subjected to sexual abuse in detention by those in authority.”

The adjudicator accepted the applicant’s contention that the police sought to suppress public awareness of ill-treatment of women in detention and considered that the position in Turkey was extremely unsatisfactory in that respect. She then came to a crucial determination, paragraph 38, which reads as follows:

“The appellant clearly feels strongly about this issue and is evidently a woman of some courage and resolution. I have substantial grounds for believing that, on return to Turkey, she would feel impelled to carry on campaigning against this injustice and thus put herself at real risk of arrest and serious ill-treatment in detention”.

The adjudicator then went on to say that on the basis of that and her understanding of the attitude of the Turkish authorities:

“I have substantial grounds […] for believing that she is at real risk of torture or of inhuman or degrading treatment if she is returned to Turkey”.

The appeal was therefore allowed, both under the Refugee Convention and under Article 8 of the European Convention on Human Rights.

The Secretary of State sought reconsideration of that determination. He complained about two things. The first was whether the adjudicator had erred in assuming that the EKB was a group in existence at all, granted that no objective evidence had been produced to demonstrate that. It was in connection with that point that Mr Richmond produced a certain amount of material at the hearing itself. The tribunal, although manifestly unhappy with the lateness of the material, favourably to IM agreed to consider it. Having done so, it concluded that there was indeed a reasonable likelihood that the organisation existed at the time of the appellant’s arrest. Therefore, although the adjudicator, they thought, had erred in her approach, that was not a material error of law. They did, however, find that the adjudicator had made an error of law in the way in which she approached IM’s likely future conduct in Turkey. In paragraph 13 the AIT said this:

“The adjudicator concluded that the appellant had been a low level member of this group and that her campaigning for them on her return to Turkey would put her at risk -- yet the adjudicator made no findings with regard to what the group was, what it did and what risk, if any, there was for its members. She did not assess the risk for members of that group.”

Further, and importantly, the AIT found that the adjudicator had been in error in concluding that IM would be an active campaigner on her return. They found that the adjudicator’s conclusion was not supported by appropriate reasons, pointing out that, although the adjudicator said that she had substantial grounds for thinking that IM would so conduct herself, that conclusion had been based upon her perception of the personality of IM rather than on actual evidence. There was no evidence about the activities of the group in the United Kingdom, and very strikingly -- and Mr Richmond very fairly told us that this was the case -- not even any evidence from IM herself that it was her intention to proselytise or otherwise be obviously active in the affairs of EKB should she be returned to Turkey.

Accordingly, the tribunal ordered a reconsideration limited to two issues. First, the nature of the EKB organisation and, secondly, the risk for members of that organisation in Turkey and the risk on return for this appellant should she be returned to Turkey. They proceeded immediately to the reconsideration hearing, a matter of which complaint is made. Having reconsidered the matter they found for themselves first of all that there was no sufficient evidence of objective risk to EKB members, and secondly no sufficient evidence in any event of IM’s intentions to take part in those activities on her return to Turkey. They therefore reversed the conclusion of the adjudicator and upheld the contentions of the Secretary of State.

A series of complaints are made in this appeal as to that conclusion. Firstly, and I can take these two grounds together, a complaint is made about the AIT’s conclusion on, as it were, the first stage of its determination that the adjudicator had made errors of law. The errors of law that it found were, firstly, that the adjudicator had no objective evidential material to support the claim of risk to members of EKB; and secondly that the adjudicator had no sufficient evidence to support, and had not properly reasoned, her conclusion that this lady would be an active campaigner on her return.

Mr Richmond said first of all that it was unfair to complain of the lack of objective evidence because questions about the existence of the EKB had not been raised in the refusal letter and therefore it was not apparent to his client that she would have to produce evidence of this sort. That complaint was misconceived. Mr Richmond fairly accepted that the burden of proof rested upon his client. If it was an important part of her case, as it is now said to be, that the EKB and her association with it would put her in hazard when she returned to Turkey, then it was for her to prove it. The fact that the Secretary of State did not expressly avert to that part of the case in the refusal letter did not exempt her from establishing the point, particularly because there was no suggestion whatsoever that the point had been conceded.

Secondly, as to the finding of the adjudicator about IM’s likely behaviour when she returned to Turkey, it was entirely open to the AIT to say, to put it bluntly, that it was simply not good enough to draw a conclusion as to that likely conduct simply from the adjudicator’s perception of IM’s personality (which is what in effect happened in the paragraph of the adjudication to which I have drawn attention), in circumstances where the applicant herself gave no evidence to indicate that that was what she was going to do and that was the reason why she feared return; where there was no evidence as to any form of such conduct in the six years she had been in the United Kingdom; and where her previous conduct in Turkey had been at an extremely low level and certainly not of the sort that the adjudicator envisaged.

The personality and demeanour of the applicant, which she herself did not rely on, was inadequate evidence to offset the total lack of objective evidence on the other side. Secondly, if the adjudicator were going to take this view she had to explain in much more detail than she did why the lack of objective evidence to support her conclusion was offset by the demeanour and behaviour of IM. The Asylum and Immigration Tribunal was therefore wholly justified in finding that there was an error of law in that part of the adjudicator, both on grounds of lack of evidence and on grounds of lack of reasoning.

Having found that error of law, the matter then had to be reconsidered. Mr Richmond says it was unfair to go straight on to the reconsideration without allowing an adjournment, for IM to produce further evidence. We were not told what this evidence would or might have been, and in any event it is clear, and was clear at that time, that it is only in unusual circumstances that the case would be reopened on the basis of further evidence, as opposed to the tribunal considering the matter on the basis of the evidence as it had been before the court below. That later is what this tribunal properly went on to do.

It should not have come as a surprise to those advising IM that that course was taken. They well knew, or should have known, that it was open to the tribunal so to proceed. They had indeed to some extent anticipated such a step or at least anticipated the possibility of further evidence being looked at by producing further evidence in the way that I have already explained.

I therefore consider that there is no unfairness. It was not unfair of the tribunal to look at the previous evidence . It was entirely open to it to consider the matter itself afresh on that day. When it came to consider the matter it was of course acting effectively as the court of first instance, and this court will not interfere unless there are serious grounds for so doing.

Two complaints are made about the AIT’s conclusion. The first is that the AIT misunderstood or undervalued some part of the evidence about threats to members of the EKB in Turkey. I do not accept that complaint. Some parts of the evidence were stated in a way that Mr Richmond says was not respectful of the full extent of them but the general enquiry that the AIT undertook was entirely within its area of judgement.

So far as the finding of the AIT that (as they had already concluded) there was no evidence to show that IM would resume her campaigning activity or engage in other campaigning conduct when she reached Turkey, Mr Richmond says that that conclusion should not have been reached by the AIT without their hearing oral evidence from IM herself. The problem about that argument of course is that IM had ample opportunity to give that evidence when she was before the adjudicator and, as I have already said, that is an opportunity she did not take. It was certainly not required of the AIT that it should adjourn the matter to enable this lady, if so advised and so minded, to give evidence that she had not given on the first occasion. The AIT was entirely right to pursue this matter on the basis on what had been before the court below.

For all those reasons therefore I, for my part, would extend time in this case for the reasons already given but would dismiss the appeal.

I entirely agree.

I agree. The only word I wish to add is this: that after the hearing before the adjudicator, the Secretary of State sought permission to appeal on 9 September 2004 and, in the grounds of appeal which were then prepared, the issues were focussed upon the matters which were deliberated upon by the Asylum and Immigration Tribunal on 26 February 2006. So there can be no question whatsoever but that, by the time that the tribunal came to deliberate upon those matters, this appellant had had ample opportunity to prepare her case and have it properly in order for that hearing.

In those circumstances it is difficult to fault in any way the way in which the tribunal dealt with the matter.