ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE RT HON. LORD JUSTICE WARD
THE RT HON. LORD JUSTICE LATHAM
and
THE HON. MR JUSTICE CHARLES
Between :
UA (Turkey) | Appellant |
- and - | |
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent |
(Transcript of the Handed Down Judgment of
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Edward Grieves (instructed by Messrs Popkin & Co) for the Appellant
Charles Bourne (instructed by the Treasury Solicitor) for the Respondent
Judgment
Charles J :
Introduction
The Appellant is from Turkey. He is a Kurd of the Alevi faith. He claimed asylum at Dover on his arrival in the UK on 9 June 2002. His wife claimed as his dependant. His claim was refused by a letter dated 7 October 2003. The Appellant appealed on asylum and human rights grounds. That appeal was dismissed by an Adjudicator on 21 January 2004 (the Adjudicator's Decision). He sought permission to appeal, this was refused by the IAT but on statutory review this refusal was overturned. As a result the case came before the AIT for reconsideration under transitional provisions. The AIT dismissed his appeal on 23 May 2006 (the AIT Decision). Permission to appeal the AIT Decision was granted at an oral hearing by Sedley and Lloyd LLJ.
The Appellant asserts that the Adjudicator's Decision is irrational and in support of that argues firstly that it is internally inconsistent, because it was accepted by the Adjudicator that the Appellant had agreed to help the authorities by providing information and therefore to become an informer at the conclusion of his final arrest, but nonetheless and inconsistently the Adjudicator found that after his release following his final arrest he had not been asked to provide information on political contacts or stopped every couple of days and asked what information he had.
Further or alternatively the Appellant argues:
that there was a failure in logic or reasoning in the Adjudicator's determination,
in particular that that failure relates to the question whether the Appellant had been asked and had agreed to help by providing information, and thus to act as an informer, but also (and not just for that reason) it infects the overall conclusion,
that the failure of logic or reasoning results from a concentration on what the Appellant actually knew and the extent of his actual political activities and a failure to address (or properly address) the question what the authorities suspected the Appellant knew or had done and their perception of him,
that failure gave rise to a failure by the Adjudicator to address what was described by Sedley LJ when giving permission to appeal as follows:
"The crunch point is that the Appellant's submission before the AIT was that what exposed him to risk was not what he actually knew but what the police thought, or hoped, that he might know and might be able to be pressured into disclosing "
and
because of (a) this failure, and (b) the acceptance by the Adjudicator that prior to his release the Appellant agreed to act as an informant this court can itself determine that the risk of persecution the Appellant asserts exists and allow his appeal.
There are therefore two limbs to the Appellant's argument. I shall refer to the first as the "Findings Issue" and the second as the "Reasoning Issue". There is some overlap between them. In advancing both of them the Appellant asserts that the Adjudicator accepted and found, as the Appellant had consistently stated, that during the periods of his arrests the Appellant had been interrogated about his involvement in terrorist groups and had been asked to identify leaders within the groups and the activists he knew. This he maintains indicates that on those occasions he had been suspected by the authorities of having relevant information.
The Secretary of State maintains that on a proper reading of the Adjudicator's Decision the arguments advanced by the Appellant are wrong.
It is accepted by the Secretary of State, and it was accepted by the AIT as being a matter of common sense, that the answer to the question what the Appellant knew, or his actual involvement in political activities, does not of itself, or without more, answer the question whether he was asked to provide information and to help by providing information after his release on the basis of the authorities' perception of him. So it is accepted that, even if as found the Appellant did not have anything other than very low level political involvement it is possible (a) that the authorities could have suspected that the Appellant had relevant information, or (b) that they could have hoped that he might be able to provide such information and therefore have sought to discover whether he could do so both during, and then after, his last detention by asking him to be an informant. Thus it is accepted that the underlying basis of the crunch point described by Sedley LJ exists.
The AIT's interpretation of the Adjudicator's Decision is that she made appropriate findings and there is no material error of law in her determination. The Appellant therefore argues that the AIT failed to recognise the failings in the Adjudicator's Decision that are now advanced again to this court.
The Adjudicator and the AIT both refer to the AIT Decision, A (Risk – Guidelines – Separatist) Turkey CG [2003] UKIAT 0034 (ACDOG),in which the Tribunal identified areas of enquiry that are likely to build up a picture from which the assessment of risk can be made. As appears from the citation from ACDOG by the AIT it referred to the guidance given in the earlier case of A (Turkey) CG [2003] UKIAT 00034 (see in particular paragraph 14 of the decision in ACDOG citing paragraphs 46 and 47 of A (Turkey),and paragraph 133 cited by the AIT). As the Adjudicator recognised that list of areas of enquiry is not exhaustive, and it is not to be treated as a box-ticking exercise, but the factors are nevertheless a helpful focus of attention. So both the Adjudicator and the AIT identified a case that provides appropriate and extensive guidance on the issues in this case.
The appeal is primarily focused on the findings and reasoning contained in the Adjudicator's Decision. That decision should be read in the round, against the background known to the parties and a broad and not a technical approach should be taken to it. However on such a reading it must include necessary findings and provide proper reasoning.
The Adjudicator's Decision
The Adjudicator gives an account of the evidence in paragraphs 12 to 32 of the Adjudicator's Decision. As appears therefrom:
the Appellant claimed that many of his family members were politically active and that a number of them were refugees,
the Appellant claimed to have a high level involvement in politics,
the Appellant gave an account of his arrests,
a medical report was submitted and relied on by the Appellant and he cited examples of maltreatment during his military service including the amputation of a finger, and
the Adjudicator read objective evidence and the guidance case I have referred to demonstrating amongst other things: daily discrimination and harassment of Kurds, that a returnee from the UK with no travel documents will be thought of as a failed asylum seeker and be detained for interrogation and that the current situation in Turkey is volatile and there is no minimum number of factors which is to be satisfied before an individual comes under suspicion and in some cases one factor alone is sufficiently weighty for it to be properly concluded that the individual concerned is at risk on return.
At paragraphs 19 to 21 the Adjudicator says, (with my emphasis):
The appellant claimed to have been arrested and detained for 3 days in 1994 at his cousin's gym; in 1996 for 5 days after attending the funeral of a hunger striker; in August 2001 he attended a march in support of hunger strikers and was arrested from his home and detained for three days; in April 2002 a police car drew up and he was arrested and detained for 2 days. The respondent stated that he was not going to submit that the arrests did not happen.
In August 2001 whilst being arrested he says that his wife was pushed by police and as a result had a miscarriage. After his release he and his wife left Mersin and went to Istanbul where they remained for 7 months. When asked what he had been doing during his time in Istanbul he said he was resting; on holiday; his political activities continued; he took his wife to the doctor; he wasn't that active politically; he went to meetings/gatherings about hunger strikers. He said that on his return to Mersin he was arrested within a week of return and had, on his return being distributing papers and magazines for Dev Sol and DHKP-C.
The appellant claimed that after his return from detention in April 2002 he was stopped about every two days by the authorities and asked to disclose information about his left-wing political contacts. He says that he evaded answering. He said he had agreed to disclose information to the authorities whilst making plans to leave Turkey."
We were also referred to the Appellant's statement to "flesh out" what was accepted as an accurate précis given by the Adjudicator.
The position was therefore that the Appellant claimed that over a period of about 8 years he was arrested on four occasions and after each arrest he was released without charge. He asserts in his statement that:
on his first arrest, in 1994, he was "interrogated about my involvement with political groups. They wanted to know what groups I was involved with and who were the leaders within the groups" and that he repeatedly denied any involvement with political groups,
on the second occasion in 1996 he was asked why he had attended a funeral and who was encouraging him to get involved in political activities,
in 2001, after a march in favour of hunger strikers which he attended, his house was raided, his wife was pushed and the resultant fall caused a miscarriage and he was detained. No reason for his detention was given but he was held for three days and asked to name the left-wing activists that he knew, and
on the final detention in 2002 when he was stopped when walking along the street and then detained, the police told him that he was detained "in order for them to talk to me about left-wing activists that I know. I did not give any name so they began to beat me. They said that by family would pay if I did not collaborate. I agreed to help them. They released me. They said that they would get in touch with me. I was very frightened. The police were calling at my home and stopping me on the street and reminding me that I had agreed to help them."
The position was therefore that before the Adjudicator, and in his earlier interviews, the Appellant advanced his case on the basis that he and members of his family had a level of political involvement that triggered him being interrogated and asked to identify activists, that he had always resisted doing so, that he had on each occasion been released without charge but that on the last occasion he had agreed prior to his release to be an informer and following this release he continued to evade providing information whilst planning to leave Turkey. Thus:
his case was that the agreement to act as an informer with the follow up of him being regularly approached by the police was the trigger to his departure from Turkey and at the heart of his claim to be a refugee,
he did not argue in the alternative that the pattern and history of his arrests absent the agreement to act as an informer founded his claim to be a refugee,
he did not argue in the alternative that if it was found that he was only involved at a low level in political activities and that he did not have any relevant information to provide in answer to the questions put to him during his arrests, he would still be at risk if returned to Turkey, and
he did not assert that he had been asked questions about his family or friends, rather the assertion was that he had been asked on more than one occasion to identify leaders of groups and activists.
The Adjudicator sets out her findings and reasoning in paragraphs 33 to 46 of her decision. Of particular importance are paragraphs 33 to 41. They contained emphases typed in bold. With my emphases underlined they read:
In coming to my decision I have considered all the evidence before me, including passages that I may not have specifically mentioned.
The appellant's account of his arrests and detention is consistent between his undated witness statement, his interview with the respondent, his witness statement dated 15.01.04 and his oral evidence. The medical evidence is unsatisfactory. It is not at all clear where and to what extent Dr Rundle is currently practicing. His clear assertion that the appellant is suffering from brain damage following an assault in 2001 without any indication that any particular tests have been done on the appellant other than talking to him appears to be contradicted by the specialist article submitted attached to the report which indicates the difficulty in diagnosing some conditions. The appellant is not on medication and yet Dr Rundle states that he needs to be on medication for the rest of his life. Whilst it is appropriate to ensure that adequate investigation of the appellant's condition is undertaken I take the view that the conclusions drawn by Dr Rundle as to the extent of the injuries suffered by the appellant (namely brain damage) are not, on the basis of the information provided, sustainable save to indicate that there are problems which justify further investigation. I do accept that the appellant shows some symptoms of post traumatic stress disorder although there is insufficient evidence disclosed in the report to justify the doctor's conclusion that it is settled and permanent.The report does not in itself provide corroboration that the appellant has been arrested, detained and maltreated to the extent claimed. I note that the respondent does not challenge the appellant's account that he has been arrested on a number of occasions.
The appellant claims to have been involved at a high level politically. Although the appellant's evidence was consistent in terms of the numbers and timing of his arrests it was apparent from his written and oral evidence that he was not involved politically in any particular organisation other than providing general support for left-wing Kurdish organisations. He claims not to support violence and yet also claims to have sold newspapers and magazines for Dev Sol and DHKP-C. Dev Sol ceased to exist in 1993 and DHKP-C seeks to overthrow the Turkish State by armed revolution. He also claimed to support HADEP, yet was unable to give any information about their method of political campaigning. He also claimed to support the PKK and to distribute their papers/magazines yet the relationship between DHKP-C and PKK is described in the CIPU report as "difficult". I do not believe that the appellant read or distributed magazines or newspapers for any of these organisations.Had he done so he would have been aware of the contradictions in his support for such organisations and, given his professed dislike of violence he would not have continued to assist in the propagation of material that calls for the violent overthrow of the Turkish State. His lack of political knowledge does not support his contention that he distributed or even read the journals and magazines produced by DHKP-C, PKK or HADEP. The appellant's evidence in connection with his activities whilst in Istanbul was contradictory and vague.At most I accept that the appellant has an underlying sympathy with left-wing Kurdish organisations and that he attended some demonstrations, marches and gatherings. I do not accept that he attended meetings – his level of political knowledge and his evidence that he was unable to keep up with all the political organisations at once, indicates a general level of unstructured support rather than any specific political activity or knowledge.
I have some doubts as to whether the appellant was arrested on the number of occasions he claims but looking at the appellant's account in the round, taking into account the fact that the medical report indicates at least some level of ongoing trauma, that the respondent does not challenge the appellant's account of his arrests and viewed in the light of the background informationI accept that the appellant has been arrested and detained for periods of time. I also accept, in the light of the evidence before me that during these detentions he is likely to have been badly treated.
The background information makes clear that many individuals are arrested and detained and then released without charge. Such actions could be said to be typical of authoritarian states seeking to prevent political activity through fear of consequences. The arrest and detention of the appellant falls, in my view, into this category. His lack of political involvement and knowledge is readily apparent. Even if he were asked by his captors to disclose information about contacts and activity, he had none to disclose. His level of political knowledge and his level of political activity was extremely low level, amounting to no more than attendance at demonstrations, marches and gatherings.I do not believe that he was asked to provide information on political contacts after his release or that he was stopped every couple of days and asked what information he had. He clearly did not have any and I find it extremely doubtful that the authorities would use their resources to stop the appellant every two days or so. This does not contradict my findings that I accept that the appellant has been arrested and detained. Those arrests arose subsequently to demonstrations and marches at a time of heightened political controversy in Turkey, particularly around the issue of F-Type prisons. The background information illustrates that many individuals are arrested, threatened and abused and then released.
The appellant claims to have many relatives who are recognised as refugees and that this would be an issue that would increase the possibility of him being drawn to the attention of the authorities on arrival in Turkey. If there are such relatives I would have expected corroborative evidence to be produced. I do not accept the assertion that Turkish nationals have now naturalised as British Citizens or have indefinite leave to remain is adequate evidence that they are refugees. Corroborative evidence to that effect, if it exists would be readily available. In any event although the appellant claimed to come from a well-respected and well known political family there was no evidence that he had been questioned during any of his detentions about his relatives and their political activities. On the basis of his oral evidence it appears that some at least of these relative visit Turkey and thus would appear not to be refugees. They have the same family name as the appellant but there was no evidence that they have difficulty on arrival. Although he claims that his uncle's car accident in 1997 was not an accident and that his uncle was very active politically, it appears from the evidence that the uncle (although he may well have been away from Turkey for some 8 years) had returned for a two week holiday. It appears unlikely, had the uncle been as politically active and astute as the appellant states, that he would have returned if he felt he would be at risk. There was no evidence that the car accident was not an accident other than the appellant's oral evidence. There was no evidence that following the accident the appellant, or his family were maltreated in any way connected with his uncle.
I have considered all of the evidence in the light of the principles outlined in the case of ACDOG, referred to above. I have taken note of the appellant's representative's assertion that the source of the information about the material held on the GBTS is an uncorroborated FCO communication. I am aware that the factors to be considered are not to be treated as a checklist. In this case the appellant is Kurdish with left leaning sympathies and will be returning to Turkey undocumented. He has been arrested and detained on a number of occasions but has not been charged. His level of political activity is very low level, consisting of no more than attendance at marches and demonstrations. He lived for several months in Istanbul with no difficulties. He has a number of relatives, all bearing the same family name, who are settled in the United Kingdom and there is one relative (the deceased uncle) who although described in a Turkish newspaper as a revolutionary had returned to Turkey for a holiday. He has only four digits on one hand. I find it very unlikely that the appellant's arrests will be recorded on the GBTS system. I consider it possible that the appellant will, as a returning undocumented Turkish citizen be interrogated on arrival. I do not consider that the appellant will be identified as a political activist with PKK or DHKP-C sympathies who has been arrested previously. I do not consider that the appellant will be transferred to the Anti Terror branch for interrogation but that he will be released (if he is detained) after some few hours, as referred to in the CIPU report.
I have also considered whether the appellant will be at risk of being persecuted if he returns to Turkey but is not detained at the airport. Although he has been detained in the past such detentions have arisen in the main following his attendance at demonstrations and marches. The appellant did not participate in political activity whilst in Istanbul and confirmed in oral evidence that he has not been following Turkish politics for the last few months. Any low level political activity that the appellant my have had in the past is simply not evident now. If returned to Turkey I find that he is very unlikely to become involved in any form of political activity. I find that as a consequence he is unlikely to even come to the attention of the authorities and he is very unlikely to be arrested or detained. Even if he were to be at risk of detention in Mersin he would, on the basis of his evidence not be at all likely to have any problems if he were to go elsewhere in Turkey as evidenced by the lack of any interest in him when he was in Istanbul.
I find that the appellant has not discharged the burden of proof that there is a reasonable degree of likelihood that he is at risk of being persecuted if he is returned to Turkey now."
The AIT Decision
Paragraphs 17 to 24 of the AIT Decision read, (with my emphasis):
We are satisfied that it was entirely open to the Adjudicator to conclude that it was apparent from his written and oral evidence that he was not involved politically in any particular organisation other than providing general support for left-wing Kurdish organisations. She was entitled to make her assessment of his involvement by taking into account his limited knowledge of the political organisations which he claimed to support, particularly as he appeared to treat them globally as Kurdish left-wing organisations when, in reality, it is apparent that they each have very different approaches. She did not believe that the appellant read or distributed magazines or newspapers for any of these organisations. It seems to us that it was perfectly open to the Adjudicator to treat the appellant's professed abhorrence of violence as being entirely contradictory to a professed support for a terrorist organisation. In our judgment, it would be perverse to espouse such an organisation merely because, like other legal groups, it sought greater freedom for Kurds. In paragraph 35 of the determination, the Adjudicator therefore concluded that the appellant had no more than an underlying sympathy with left-wing Kurdish organisations and that he attended demonstrations, marches and other public gatherings but was not sufficiently involved in politics to attend political meetings. We consider that the distinction drawn between these two types of event is clear and the Adjudicator had ample evidence before her to draw that distinction. It was, in our view, an important part of the Adjudicator's assessment of the appellant's level of involvement.
The Adjudicator then went on to consider whether the appellant was arrested on the number of occasions that he claimed but, quite properly because the Secretary of State did not challenge the appellant's account of his arrests, she accepted both that he had been arrested and that, during the course of his detentions, he had been badly treated.
She then considered the impact of those arrests on the appellant's claim to be at risk of ill treatment on return. She acknowledged that many individuals are arrested, detained and released without charge. She concluded that these arrests were part of the State's attempts to suppress political dissent by Kurdish people by using (perhaps indiscriminate) arrest and detention as a tool. The Adjudicator relied upon her previous finding that the appellant lacked political involvement or knowledge and was, therefore, incapable of providing information because he had nothing to disclose. Mr Grieves submitted that this was entirely wrong because of course, he had information about his friends and those who attended the marches. We reject that. The appellant provided no credible evidence that he had any information that was of any interest to the authorities about those on such marches. Accordingly, she did not believe his evidence that he was asked to provide information about political contact after his release. We consider that conclusion was properly open to the Adjudicator. Notwithstanding the random nature of police brutality, the Adjudicator was entitled to assume that the police would not asked (sic) somebody to act as an informer if they had no material before them to establish he had useful information to provide. A purchaser of newspapers and an attendee of demonstrations, marches and gatherings is unlikely to have information on any value. That, at any rate, was the view of the Adjudicator and, in our judgment, she was entitled to reach it.Accordingly, the appellant's claim that he was stopped every couple of days by the authorities after he had agreed to assist them was not credible. We see no perversity in that finding. For these reasons the Adjudicator formed a very different view from that put forward by the appellant as to the nature of his political involvement and what the authorities would perceive that involvement to have been. Such findings were crucial to the Adjudicator's task of assessing this appellant's risk on return, bearing in mind the case by case basis upon which such judgments are made. It was for these reasons that the Adjudicator concluded that the appellant had not discharged the burden of proof that there was a reasonable likelihood of his being at risk of persecution on return to Turkey.
--------------------
Paragraph 5 of the grounds seeks to establish that it is not whether the appellant is a separatist or has been involved in separatist activity that matters; rather, it is how the appellant is perceived by the authorities to be. This is, of course, simple common sense.However, this in our judgement was precisely what the Adjudicator was attempting to grapple with in paragraphs 35 to 37 of her determination. It is clear that perceptions might be irrational and based wholly upon irrational thinking on the part of the authorities. Alternatively, a perception might arise perfectly logically on the basis of factors known to the authorities from which they draw inferences, correctly or not. The Adjudicator was concerned to consider whether there was any credible evidence that the appellant's activities would give rise to incorrect perceptions about the appellant's involvement with separatist activity. She reached clear findings that his actual activities did not give rise to any such perceptions. If, therefore, the appellant's case is that he is unfortunate enough to be at risk of unwarranted inferences being drawn about his political activities, he has to provide credible evidence that, in his case, such an adverse inference will be drawn. In our judgement, it is not sufficient to say that the appellant's account of past events establishes such a reasonable likelihood.
For these reasons, we do not consider that the Adjudicator misdirected herself at law.
The grounds continue that the Adjudicator gave inadequate reasons for her conclusions in paragraph 37. For the reasons that we have set out above, we consider that the Adjudicator's reasons in paragraph 37 are both clear and compelling. It is, however, stated that it was not open to the Adjudicator to reject the appellant's account that he was stopped every couple of days after he had been released and asked what information he had. In our judgment, this demonstrates a fundamental misunderstanding of what the Adjudicator had found. She did not believe he had been asked to provide any information on his political contacts because, according to her sustainable assessment of the appellant's past political involvement, he would not have been identified by the authorities as an informant.It inevitably follows that, if he was not telling the truth about this aspect of his claim, he would not have been stopped by the authorities as a result of any promise made by him to assist them. Insofar as paragraph 7 of the grounds seeks to argue that it was unsafe for the Adjudicator to conclude that the appellant had no useful political knowledge, this is a simple attempt to re-open the Adjudicator's sustainable findings of fact. The assertion that the appellant's attendance and arrests at pro-Kurdish events were reasonably likely to suggest to the authorities that the appellant had greater political involvement than he actually possessed was a matter that the Adjudicator simply rejected as she was entitled to do.
In the course of his submissions to us, Mr Grieves submitted that the Adjudicator's treatment of paragraph 37 was inherently irrational and that, because he was in the middle of demonstrations, the authorities would perceive he knew the names of those involved and would attribute to him a much greater knowledge than he actually possessed. For the reasons that we have given, we reject that assertion but, more importantly, the Adjudicator was not required to make such a finding in favour of the appellant. In our judgment, taking the determination as a whole, there is no material error in the Adjudicator's approach to the evidence. The conclusions that she reached were properly open to her for the reason she gave and we are not persuaded that the grounds of appeal or the submissions made in support of them undermine her conclusions."
The stance of the Respondent before the Adjudicator in respect of the Findings Issue
In the decision letter dated 7/10/03 the Secretary of State had said this in paragraphs 7, 9 and 11:
--------------------- You claim that if you returned to Turkey you would be detained because you escaped after agreeing to become an informer and would also be charged and tortured because of your political beliefs.
Your claim to have been detained by the Turkish police on account of your alleged involvement with the PKK. HADEP and the DHKP-C has been considered. It is understood that the PKK and the DHKP-C are illegal organisations and that HADEP was banned on 13/03/2003. It is considered reasonable to think that if you were found in possession of illegal publications and/or caught while carrying out activities on behalf of these groups you would have been charged with an offence under the relevant Article of the Turkish Penal Code or the strict Anti-Terror Law. There is nothing to indicate that the authorities do not make full use of their powers under this legislation. In view of your claims that you were released without charge following your alleged detentions it is not credible that you were detained as claimed. It is also not accepted that you would be charged and tortured on return because of your alleged political beliefs.
In fact, it is clear from your own account that you were not a member of the named organisations and only a sympathiser and supporter whose support amounted to financial donations, buying newspapers and magazines, helping with access to the gym and attending marches and demonstrations. It is considered that such alleged activities represent the very lowest level of involvement with an organisation. The view is held that the police would not be interested in employing you as an informer because as a non member of the named organisations or of left-wing organisations you would not be in a position to know or have access to confidential information about them. The claim, therefore, that you feared persecution on return to Turkey because you escaped after agreeing to become an informer is not well founded."
It is to be noted that in paragraphs 19, 34 and 36 of her decision the Adjudicator refers to the stance of the Respondent. These references are in slightly different language which read in isolation could have different meanings. For example, if the relevant sentence in paragraph 19 is read in isolation it seems to me that the natural meaning of the stance referred to is simply that there was no challenge to the assertion that the arrests occurred. That is not an acceptance of the account given concerning the reasons for those arrests, what happened during them and what deal was struck at the end of the last arrest. Whereas if the relevant phrases in paragraphs 34 and 36 are so read, it seems to me that their natural meaning is that the lack of challenge was to all of the account given by the Appellant of, and relating to, the arrests particularly as that accords with the reference to his account in the first sentence of paragraph 34.
Paragraph 18 of the AIT Decision does not advance the debate. But it is to be noted that in paragraph 23 thereof the AIT record that in their view the submission that it was not open to the Adjudicator to reject the Appellant's account that after his release he was stopped every couple of days demonstrated a fundamental misunderstanding of what the Adjudicator had found.
It seems that either there was no cross examination on what happened during the arrests or it was very limited. I proceed on the basis that there was no cross examination expressly directed to, or any express challenge to, the Appellant's assertions that he had been interrogated and asked to identify for example "activists that he knew" and "leaders within the groups". But there was cross examination in respect of the Appellant's assertions as to his involvement in political activity and that of members of his family. This is in line with the approach taken in the decision letter.
Standing back and considering the Adjudicator's Decision as a whole and reading it broadly in my judgment the Adjudicator's understanding was that:
the Respondent was not accepting the entirety of the Appellants' account as to his arrests,
what was not being challenged, and thus was accepted, was that the Appellant had been arrested on the number of occasions he asserted and on each occasion released without charge,
the Respondent was not accepting and did challenge the reasons for the arrests advanced by he Appellant, namely his alleged involvement with PKK, HADEP and DHKP-C, and in particular the Respondent was denying and challenging the assertion that the Appellant had agreed to become an informer for the reasons stated in paragraph 11 of the decision letter, and
the Respondent was not accepting, although there was no cross examination on the point, the accounts of what occurred during the periods of the arrests.
In my view this flows from (a) the findings of the Adjudicator relating to the political activities of the Appellant and members of his family, (b) the finding at the beginning and end of paragraph 37 as to why the Appellant was arrested, and (c) the approach of the Adjudicator in paragraph 37 of stating "even if" the Appellant were asked by his captors to disclose information. Points (a) and (b) do not accord with the Appellant's account and therefore demonstrate that the Adjudicator was not treating the lack of challenge to that account as an acceptance of these parts of it. If the Appellant's account of his interrogation, and thus of what he had been asked during his arrests, was accepted the hypothetical approach mentioned in point (c) would not have been adopted.
This view as to the Adjudicator's understanding also flows from my conclusions on the Findings Issue and the reasons for them which I hope demonstrate why this point is not a boot straps argument.
I return to the approach of the Adjudicator and the parties to the assertions made by the Appellant as to what he was asked to reveal during his arrests and why he was asked to do so, when considering the Reasoning Issue.
Conclusions
The Findings Issue
In my judgment on a fair reading of the Adjudicator's Decision against the background of the respective stances and assertions of the parties before her the Adjudicator does not accept and find that during the period of his last arrest the Appellant was asked and agreed to become an informer.
The argument advanced on behalf of the Appellant that she did is based on:
the Adjudicator's reference, in particular in paragraphs 34 and 36 of her Decision, to the Respondent not challenging the Appellant's account of his arrests, and
the Appellant's argument that the finding in paragraph 37 that:
"I do not believe that he was asked to provide information on political contacts after his release or that he was stopped every couple of days and asked what information he had."
is limited to a finding as to what happened after his release.
The Respondent argues that the above passage in paragraph 37 is on its true interpretation an express finding that the Adjudicator did not believe that during the period of his last arrest the Appellant had been asked (and agreed) to be an informer following his release.
Both contentions fall within a literal interpretation of the finding read in isolation.
The Appellant also points to paragraph 21 and argues that the finding in paragraph 37 is directed, and limited, to that allegation as recorded. I do not agree that this follows from a reading of those two paragraphs which are worded differently. Paragraph 21 refers to the evidence of the Appellant concerning what he says happened after his release and after he had agreed to act as an informer. That agreement was disputed and literally the range of meaning of the finding in paragraph 37 can cover a rejection of the assertion that prior to his release such an agreement was.
To my mind the nature of the inconsistency asserted by the Appellant is of itself a pointer to a conclusion that the finding in paragraph 37 was that the Adjudicator did not believe that prior to his release the Appellant had been asked to and had agreed to provide information about political contacts after his release. This is because looked at in the context of both:
a finding that the Appellant had agreed to act as an informer but had not been approached after his release, and
a finding that the Appellant had agreed to act as an informer but was not at risk of being persecuted if he is returned to Turkey,
the inconsistency is very stark, and thus in my view it would be surprising if the Adjudicator had accepted that the Appellant had agreed to act as an informer.
On the wider point (i.e. the overall risk finding) it seems to me that a fair reading of the Adjudicator's Decision as a whole makes it plain that she did not accept that prior to his release the Appellant had been asked, and had agreed, to be an informer and this view is strengthened when it is remembered that the Adjudicator had regard to the principles outlined in ACDOG. In my view the whole of the reasoning in the remainder of paragraph 37 and that in paragraphs 38 to 40 (and in particular 39 and 40) is on a fair reading based on the premise that the Appellant had not agreed to act as an informer.
Contrary to the submission of the Appellant, the reasoning in the sentence following the finding in paragraph 37 relating to the use of resources does not in my view indicate that the finding was limited to the period after release. This is because the point is also relevant to the credibility of the Appellant's assertion of the agreement founding, or leading to, such approaches being made. Further, by the next two sentences, the Adjudicator makes clear that she was aware of the potential for conflict between her two findings and explains why in her view it does not exist. In my view that recognition and explanation point strongly to the conclusion that the Adjudicator did not think that a factor in the conflict was her acceptance and finding that prior to his release the Appellant had agreed to act as an informer. It seems to me that if she had thought this she would not have overlooked the relevance of that factor and would have dealt with the potential for conflict that she recognised differently.
As I have already indicated in my view there are other indications in the Adjudicator's Decision which show that her understanding was not that the Respondent was accepting that prior to his release the Appellant had agreed prior to act as an informer. Also it should be remembered that in the decision letter the Secretary of State did not accept that the Appellant had agreed to act as an informer and there was cross examination on the Appellant's lack of knowledge about Turkish politics and thus on the basis of this rejection of the Appellant's case.
For those reasons I have concluded that on a proper reading of the Adjudicator's decision she did not believe, and rejected, the Appellant's assertions that:
prior to his release he had been asked, and had agreed, to act as an informer, and
following that agreement and his release he was stopped about every two days by the authorities to disclose information about his left wing political contacts, which he evaded answering.
It follows that in my judgment the Adjudicator made credibility findings rejecting the heart of the Appellant's case as to why he would be at risk if he was to be returned to Turkey.
The Reasoning Issue
This issue is directed to the questions whether:
in reaching the findings I have concluded the Adjudicator did reach, namely (a) that the Appellant was not telling the truth when asserting that prior to his release he had agreed to act as an informer and therefore (b) that that agreement and the approaches that followed it were the trigger to his departure from Turkey, and
in reaching her overall conclusion,
the Adjudicator erred in her approach and reasoning.
Put another way this attack is that those findings should not have been reached on the basis simply of a rejection of the Appellant's case as to his political activities and thus the finding as to what he actually did and actually knew.
The attack also goes back to the decision letter.
In considering this issue it needs to be remembered :
that although she expressed doubt as to the number of times the Appellant was arrested the Adjudicator in paragraph 36 said:
"I accept that the appellant has been arrested and detained for periods of time. I also accept, in the light of the evidence before me that during those detentions he is likely to have been badly treated,"
in my view that is an acceptance that he was arrested on the number of occasions he alleged over an 8 year period,
there is no finding as to the extent of the bad treatment referred to in the finding in paragraph 36, and
there is no finding as to what, if any, interrogation the Appellant had been subjected to, and thus whether, as he alleged, he had been asked to identify leaders of groups or activists, but
there is an express finding as to the reasons for his arrests.
The Appellant makes the point, which I accept and was not disputed, that if on four occasions he was arrested, interrogated and asked to identify persons as he alleges:
this is an indication that the authorities perceived him to be, or treated him as, someone who was, or might be, involved in the relevant political organisations or had relevant information about them and their members, and
this perception and treatment, for whatever reason and however incorrect and ill informed that reason might be, is a factor in favour of a finding that the Appellant was asked and agreed to become an informer.
I accept, and the contrary was not argued, that:
the stance of the Respondent at the hearing as to whether the Appellant was asked to identify leaders of groups or activists is not clear, and
it was not put in cross examination, or submission, or by the Adjudicator, that he was not.
In my view it is fair to say on a reading of the Adjudicator's Decision that she was sceptical as to whether the Appellant had been interrogated and asked to identify persons as he alleged. But reasoning at the beginning of paragraph 37 of the Adjudicator's Decision, namely I repeat (with my emphasis):
" The background information makes clear that many individuals are arrested and detained and then released without charge. Such actions could be said to be typical of authoritarian states seeking to prevent political activity through fear of consequences. The arrest and detention of the appellant falls, in my view, into this category. His lack of political involvement and knowledge is readily apparent. Even if he were asked by his captors to disclose information about contacts and activity, he had none to disclose "
shows that her approach was not to determine whether or not this was the case, but to pose herself the question: What would have occurred had the Appellant been asked such questions? She answered that question in the manner set out and by so doing, and by her findings elsewhere, clearly rejected the reason advanced by the Appellant for his arrests, detentions and questioning.
As I have already said, in my judgment it follows that the Adjudicator rejected the core of the Appellant's case as advanced before her.
However the question remains whether in doing so the Adjudicator erred in law by not considering, or giving proper weight, to the alternative argument and possibility that although the Appellant was not involved at a high level of political activity (and whatever was meant by that it is different to the finding of the Adjudicator) as he alleged, nonetheless because of their perception of him the authorities did interrogate the Appellant as he alleged and did decide to ask the Appellant to act as an informer.
The Adjudicator does not expressly address this possibility in her Decision. But in my judgment that does not of itself amount to an error of law because the Adjudicator's decision has to be read as a whole.
As I understand it this possibility was understandably not argued before the Adjudicator in the alternative. The argument has emerged and been pressed on appeal for the Adjudicator's Decision and thus in the light of her findings.
The alternative argument advanced to us and the AIT is (and would have to have been) that:
the objective material and cases show that it is possible that what the Appellant says the authorities in Turkey did to him is true even if he was not, and they did not consider him to be, a member of the relevant organisations, or active politically, or a person who through his political activities had useful information about left wing leaders or activists,
this possibility and the perception and approach that goes with it that he nonetheless might be able to provide useful information, or a false perception of the Appellant, could provide a reason for the actions of the authorities as alleged by the Appellant, and thus for the agreement that he would act as an informer,
so the facts as found, namely that the Appellant had only a very low level of political involvement and did not have family who had a political involvement at a level that would be likely to excite interest in him, or them, does not preclude his questioning and the request that he act as an informer being prompted either (a) by a mistaken perception as to his knowledge and contacts that warranted him being approached every couple of days after his release, or (b) a hope that he might be able to provide something useful and that this too warranted him being approached so often (or that that part of his evidence was an embellishment), and
he could have provided information about friends or acquaintances the authorities might think was useful.
I do not dispute any of those points, indeed it seems to me that they reflect the common sense referred to by the AIT and the points made and the guidance given in ACDOG referred to by the Adjudicator and the AIT.
However it seems to me that the argument advanced by the Appellant on this appeal and before the AIT fails to give proper regard:
to the point that this line of argument is an alternative to the main case advanced by the Appellant as to the reason he asserted he had been treated in the way that he was and thus the background advanced by him to the agreement he relied on that he would act as an informer,
to the point that that reason, namely the level of his political activity, and thus his knowledge of political issues relating to Turkey, was at the centre of, his case, the rejection of that case by the Respondent in the decision letter and the issues argued on both sides before the Adjudicator, and thus
to the point that the argument now being advanced concerns the way in which the Adjudicator considered an alternative possibility which was not expressly put.
Also in my view it is relevant to remember that:
the Appellant was always released without charge and on the first three occasions this does not fit easily with a mistaken perception by the authorities as to the level of his political activities (on the fourth it would fit with an agreement to act as an informer),
the effect of his statements and oral evidence is that he had relevant information but resisted providing it at any time during the periods of his arrest and, in respect of last arrest, not only did not do so when he agreed to act as an informer, but he also evaded doing so after his release, although he was approached every couple of days,
the Appellant has not identified any friends or associates who are leaders within the groups he asserted he was involved in or left wing activists, and
it is difficult to see how at the time he agreed to act as an informer and after his arrest he could have evaded identifying friends or acquaintances who, for example, had attended a march with him if this is what the authorities wanted to know.
I repeat that the Adjudicator reminded herself of the guidance in ACDOG and thus, in particular, paragraphs 14 and 133 thereof. Against that background in my judgment a fair reading of the Adjudicator's Decision shows that she did not err by failing to have regard to the point that the perception of the authorities was important, and had regard to this, in her approach and conclusions in that:
she considered and rejected the reason for the interest in the Appellant that was advanced by the Appellant and with it his case as advanced,
she also considered that if the Appellant had been asked questions as to his activities and to name contacts it would have been readily apparent that his political and other relevant activity was very low level and he had no relevant information,
she recorded that the Appellant had never been charged (which the guidance in ACDOG indicates is relevant to her findings that it is very unlikely that his arrests are recorded on the GBTS system), and
she recorded, and made findings, that the Appellant had not asserted that he had been asked about his relatives and their political activities.
In those circumstances in my judgment it is clear that the Adjudicator for the reasons she set out concluded that:
there was no persuasive evidence based on the Appellant's case as to his level of political involvement or that he was arrested and questioned on four occasion over a period of about 8 years to indicate that the reasons for his arrests and mistreatment were other than the general ones referred to in paragraph 37 of the Adjudicator's Decision,
there was no persuasive evidence to indicate that the authorities may have taken a different view to that reached by the Adjudicator as to the level of activity and potential usefulness of the Appellant as an informer, and
there was no persuasive evidence that the authorities might have reasonably or unreasonably have perceived or suspected that it was worthwhile to ask the Appellant, or someone with his very low level of political involvement, to act as an informer on the basis of the chance and hope that he might provide something useful.
This shows that on her findings, and a proper reading of the reasoning, contained in the Adjudicator's Decision she regarded the possibility that, for reasons other than those advanced by the Appellant, the perception of the authorities was such that it warranted them asking the Appellant to become an informer with the result that because he had so agreed and fled, or otherwise because of their perception of him, the background to his departure from Turkey put him at risk of persecution if he was to return, was nothing more than speculation, or a theoretical possibility.
An alternative argument that although he did not agree to act as an informer the history of his arrests founds risk of persecution was not argued before the Adjudicator, would be a very different case, and on the guidance in ACDOG one which in my view would not have succeeded.
It follows in my judgment that the Adjudicator's conclusion in paragraph 41 was one that she was entitled to reach on the evidence and, that in doing so, she did not err in law either in her approach or by failing to give proper reasons.
Fairness
The Appellant argued before us that the Adjudicator had accepted that he was questioned as he alleged. I have concluded that this was not the case but that there was a lack of clarity as to whether or not this was the position. In view of that I have considered whether there was a lack of fairness in the approach taken by the Adjudicator in that the Appellant was not questioned about this and neither the Adjudicator's scepticism as to the extent of his questioning, nor her hypothetical approach, was put to him and his representative. I have concluded that there was no such lack of fairness because (a) the thrust of the Appellant's case and its rejection by the Secretary of State was fully dealt with, (b) the alternatives now argued were not put, and (c) in those circumstances they are, for the reasons I have given, properly dealt with by the findings and reasoning in the Adjudicator's Decision.
The AIT Decision
It follows in my view that the conclusion reached by the AIT on reconsideration was correct and there is no need to further analyse their reasoning which broadly coincides with mine.
Result
In my judgment, for the reasons I have given this appeal should be dismissed.
In short in my judgment the Findings Issue is based on a misreading of the Adjudicator's Decision and the Reasoning Issue is an impermissible attempt to overturn an adverse credibility finding which was effectively determinative of the appeal to the Adjudicator.
Lord Justice Latham:
I agree.
Lord Justice Ward:
I also agree.