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

This is a renewed application for permission to appeal, permission having been refused on the papers by Latham LJ.

The decision sought to be appealed is that of the Asylum and Immigration Tribunal, promulgated on 23rd February 2006. That was a reconsideration hearing. The applicant’s case was that she was at risk of persecution upon return to Turkey, by reason of her Kurdish ethnicity and her Alevi faith, because she had become active in the TKEP from about 1994. She said that she had been an organiser of the Young Artists’ Centre, from where she had organised meetings and demonstrations against the government. She claimed that, on May Day 1996, she had been arrested with a number of others and detained for eight days; that, during this time, she had been subjected to ill treatment. She claimed that she had been arrested a second time in August 1996, that she was detained and was then taken to court and sentenced to six months imprisonment. She alleged that there was another case pending against her and her brother, Ilyas.

She came to this country in July 2002 and claimed asylum. The tribunal did not accept her claim, based on the account of detention in 1996 and the ongoing case against her in Turkey. The central issue raised now relates to the findings of the tribunal in relation to certain documents, which are said to support the reality of the ongoing case in Turkey. The tribunal correctly directed itself on the law, by reference to the authority of Tanveer Ahmed. The tribunal further accepted that, at first glance, the disputed documents appeared authentic; however, they concluded that they were not in fact authentic, for a number of reasons (set out in paragraph 84 of the determination).

The submission before us is that that reasoning was flawed, and that it was wrong for the tribunal to reach those conclusions, in the face of an expert report from Mr Norton, who had provided such a report but who did not give evidence before the tribunal. In effect, the tribunal rejected the opinion of Mr Norton on some of these matters. One of the points set out in paragraph (iv) is expressed in these words :

“If these documents are genuine it means that the proceedings brought against the Appellant in 1996 are still continuing. We do not consider that there is any likelihood that important proceedings would still be continuing at such a lethargic pace for so long. Mr Norton has failed to offer any explanation as to the likelihood of proceedings which commenced in 1996 still being current nor has he taken into account, in his assessment of the authenticity in these documents, the fact that the proceedings are said to be continuing almost 11 years after their inception.”

That approach is amplified in paragraph 87(i) where it is said :

“We do not regard it as credible that a case of such size and importance would be drifting in the way described by the Appellant or that, save for the documents produced by her lawyer in Turkey, no supporting evidence for this case should have been adduced. In particular no recent documents relating to this case have been produced.”

The tribunal then went on to refer to the November 2006 Country Information Report, and referred specifically to paragraph 11.02 of that report, to the effect that :

“…in 1999 the State Security Courts were abolished and were replaced by Regional Serious Felony Courts. Mr Norton does not explain why the old nomenclature appears still to be in use in respect of this case.”

In other words, the tribunal was taking the view that documents under the heading of the State Security Court were unlikely to be authentic, because that court had been abolished and replaced in 1999.

I accept that there is at least an arguable error at that point in the determination. We have been shown the relevant paragraphs of the Country Information Report and it seems that, correctly interpreted, they are referring in paragraph 11.02 to events that have amounted to improvements since 1999, and that, in paragraph 11.20, they state that the replacement of the State Security Courts, by the Serious Felony Courts, was actually implemented in May 2004 -- a date after the dates appearing on the documents relied upon.

The question, for us, is whether that (at least arguable) error may vitiate the entirety of this determination. I should add that it is submitted that the tribunal may have erred in other respects in paragraph 84 but, for my part, I am not satisfied that arguable errors have been established in other respects. One has to look at a case such as this in the round. Our attention has been drawn to Mibanga v The Secretary of State for the Home Department [2005] EWCA Civ 367 and the passage in the judgment of Wilson J in paragraph 24, where he said:

“What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant’s evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence.”

I am entirely satisfied that the tribunal, in the present case, did not fall into that trap. In a substantial and complex case, it analysed a number of areas of evidence. It is not and could not be suggested that the tribunal should reach its conclusion on each piece of evidence, in isolation from its findings on other matters.

Other matters in this case were of considerable significance. It seems to me that the point made in paragraph 84(iv) (about the lethargic pace of proceedings, over a period of ten years or so) is an extremely strong and indeed unassailable point. It is amplified by the further finding in paragraph 87(i), to which I have already referred. Moreover, in paragraph 87(ii), the tribunal attached some significance to the fact that, although it was said that a hearing had taken place in Turkey on 6th February, shortly before the hearing in the tribunal, no attempt had been made (by either the applicant or her brother Ilyas, who gave evidence) to find out what had happened at that hearing, so they could inform the tribunal about the progress of the case. That and other matters are of considerable significance in the assessment of the entirety of the evidence about the alleged continuing proceedings.

So, too, in my judgment, is the evidence and findings about some photographs. These were produced on behalf of the applicant, and were said to depict her and her brother, during the period of detention in prison in Turkey, in 1996. In paragraph 85, the tribunal concluded that it was extremely unlikely that detainees, in relation to such allegations, in a country of this kind, would permit photography within a prison, by a visiting photographer (on two occasions) who also had the facility to supply the prisoners with prints of the proceeds of his work. That seems to me to have been a very strong finding of fact, with serious implications for the credibility of the applicant and her brother. In addition, the tribunal referred to numerous matters of discrepancy in the applicant’s account, and also made findings in relation to the evidence of her brothers. None of these findings are criticised in this application.

In my judgment, if one stands back and assesses whether there was a careful approach to credibility upon a correct legal basis, the answer, emphatically, is that there was. I accept the arguability of the error about the timing of the abolition of the State Security Courts; however, in the context of the case as a whole, I would not conclude that, by itself (and in my judgment, it is the only arguable point raised in the course of this application), it could sustain an appeal with a real prospect of success. It is simply one arguable error, but it is not a material error. It does not, in my judgment, vitiate the credibility findings as a whole, even on an arguable basis, and, for that reason, I would refuse permission.