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

XY is a Turkish national of Kurdish ethnicity and Alevi Muslim. He arrived in this country in July 2002 and claimed asylum. The case has an unfortunate history, having been subject to a number of reconsiderations without achieving a legally effective determination. However, we are directly concerned only with the most recent decision, which is that of Senior Immigration Judge Goldstein, sitting with Immigration Judge Osborne, promulgated on 19 July 2007.

The claim is based principally on the treatment of the applicant and his wife by the Turkish police between 1996 and 2002 and the risks to him said to result from that treatment if they were to be returned to Turkey. It is common ground that his treatment in that period was linked with the activities of his father who was a “fervent supporter” of a proscribed Kurdish organisation called the PSK. The father eventually disappeared in December 2001 and a year later, in December 2002, he was found dead – perhaps murdered, as the applicant understandably believed, but the tribunal felt unable to make any finding as to the cause of his death.

The only live issue before us is whether the tribunal was entitled to dismiss the appeal, on the basis that the authority’s interest in the applicant was solely linked to his father’s political activities and would, in consequence, have ceased with his death. It is common ground that the correct framework for considering this case was to be found in the country guidance case of IK (Turkey) CG [2004] UKIAT 00312. In that decision the tribunal repeated a list of what were called “potential risk factors” taken from a previous decision in A (Turkey) CG [2003] UKIAT 00034. They are at paragraphs 46 and 47. Paragraph 46 sets out factors which:

“…inexhaustibly we consider to be material in giving rise to potential suspicion in the minds of the authorities concerning a particular claimant.”

I will come back to some of them. Paragraph 47 is important:

“We cannot emphasise too strongly the importance of avoiding treating these factors as some kind of checklist. Assessment of the claim must be in the round bearing in mind the matters set out above as a consequence of a careful scrutiny and assessment of the evidence. The central issue as always is the question of the real risk on return of ill treatment amounting to persecution or breach of a person’s Article 3 rights. The existing political and human rights context overall is also a matter of significance as will be seen from our assessment of the particular appeals in our determinations of those below. The particular circumstances that prevail today may not be in existence in 6 months time for all we know.”

I note that, at paragraph 63, following IK (Turkey CG) [2004] UKAIT 00312, there is a valuable discussion of sources or information that may be available to the Turkish authorities, in relation to a person in this applicant’s position if he were to return. They discuss there what is called the GBTS system which, as they say, does not include detentions by security forces that have not resulted in some form of court intervention. But they refer to other sources of information such as “Nufus” records, which are connected with the national Nufus registration system. At paragraph 70 they point out that it is possible that, if a person of material interest to the authorities has not been charged with any offence and disappears from sight without registering his residence elsewhere, then a marker can be placed on his Nufus file. Then there is a reference to “Tab” records. There follows this at paragraph 73:

“There is no dispute that some information about individuals who have come to the adverse attention of the authorities is kept by a variety of organisations in Turkey, which include systems such as the GBTS, border control information, Nufus and judicial records to which we have already referred. There are also records on individuals kept in local police and Jandarma stations and by the local Mukhtar. This information would appear to be in part on computer and part in documentary form. We also accept that MIT and the anti-terrorist police would have and be able to access a further computerised system or systems that common sense suggests would include information about individuals of actual potential concern to them. It will comprise information generated by themselves and their own activities and possibly information collected from other available information systems.”

Then paragraph 78 on which Mr Collins relies particularly says this:

“On this basis, we consider that the starting point in any inquiry into risk on return should normally begin, not with the airport on return but with whether the claimant would be at any real risk of persecution or a breach of Article 3 in his home area as a consequence of his material history there. If the answer to that is ‘no’, then the claim cannot normally succeed, unless of course the risk arises from or is aggravated by other factors, such as his material activities abroad in other parts of Turkey. Any real risk would arise only from a person’s material history, to borrow Mr Grieves’ expression, and this history will in most normal circumstances be at its most extensive in the individual’s home area...”

The determination goes on to consider the question of internal relocation which is not an issue in this case.

It is instructive to note how the tribunal dealt with the particular case before them. At paragraph 4 they noted that the respondent was an Alevi Kurd from a village in the south-east of Turkey and a sympathiser of the PKK who would supply them with food. Two of his cousins had joined the PKK in 1992 and were subsequently captured and convicted of terrorist offences and sentenced to life in prison. This “triggered specific interest by the authorities in the respondent’s family”. Following that the respondent was arrested, questioned and beaten by the authorities on two occasions in 1997. At the end of their decision, they came back to consider the way the adjudicator had approached the matter. They listed the various risk factors which they thought to be relevant to the case at paragraph 129, including the history or the treatment of the applicants and their relationship with their cousins which “may have focussed the authorities adverse attention on their family and the village”. In conclusion they held that, although this was a marginal case, they were not going to interfere with the adjudicator’s decision that the asylum claim had been made out.

Turning to the present case, the tribunal’s decision is clearly and succinctly set out and summarises all the material matters. They refer to the particular incidents which had been relied on. The first incident was in June 1996 when the applicant, his wife and members of their families were celebrating a wedding. The police arrived and demanded to see the identification documents of all those present, and subsequently the appellant, his father and his brother were arrested and detained for two days; they were harshly beaten and questioned continually about their activities on behalf of the PSK. Eventually the appellant began to learn more about the activities of the PSK from his father. Mr Collins has referred us to the applicant’s statement, of which that is, I take it, a summary. He says that it shows that this was a clear example of the family as a whole being targeted by the authorities.

Then was a period when the applicant was away for periods working as a welder in another city. During that period, while he was away, his wife was detained and harassed. On one occasion she was burnt with a cigarette and on another she was threatened with sexual assault. In March and April 1998 the applicant underwent two further periods of detention; on each occasion he was treated badly but was eventually released without any formal charges.

Then, as I said, in December 2001 his father disappeared. The family had no knowledge of what had happened to him in spite of the appellant travelling all over Turkey to try and find him. Then in February 2002 the applicant was once again detained and the security forces were demanding information as to the whereabouts of his father. Paragraph 22 of the decision says this:

“After this period of detention the Appellant was detained on numerous occasions but not held for lengthy periods of time -- each time he would be asked about his father’s whereabouts but he could give no information. The last time he was detained was on 3rd July 2002 and on that occasion he believed that his treatment was worse than before -- he was threatened with death and following his release he and his wife decided the time had come for them to leave Turkey in order to preserve their safety.”

There follows an account of his activities in this country with a Kurdish welfare association. At one point there was some reliance on that material but it is no longer part of the case as presented before us today.

The tribunal accepted his truthfulness generally, and to that extent they disagreed with the Secretary of State. In paragraph 43 they said that he had given a truthful account of what had happened to him and his wife in Turkey, and they found that the treatment he had suffered was persecutory behaviour at the hands of the authorities. At paragraph 44 they said this:

“We agree (and the appellant does not deny) that he was only involved in the PSK at the very lowest level but we do not share the view that this would prevent the authorities in Turkey from detaining and questioning him if they were suspicious of the activities.”

They continued:

“The Secretary of State’s representative did not accept that the authorities would have continuously harassed the Appellant for any reason arising out of his father’s disappearance in December 2001. However, by the Appellant’s own account after the events complained of between 1996 and 1998 there do not appear to have been any further incidents until February 2002 which lead us to the conclusion that at that time the Appellant was of no interest to the authorities.”

The one matter on which the tribunal found that the applicant’s account had been seriously exaggeratedwas in respect of the time when he was away working in another city. He had said that when he came home he had to live like a fugitive to avoid the attentions of the authorities; but this evidence did not chime with that of his wife who, in her oral evidence, indicated that when her husband came home he lived openly with her and their child in their family home. The tribunal commented that the difference between these two accounts was irreconcilable and could not be regarded as a mere discrepancy.

So his history of maltreatment by the authorities was broadly accepted. However, the key to the decision of the tribunal, as I have already said, was their conclusion that the interest related to the applicant’s father, not him. This they based, at least in part, on the evidence of the appellant himself which they referred to at paragraph 47:

“[He] laid great emphasis throughout on the fact that whenever he had been detained he was asked about his father’s whereabouts and what the Appellant knew about his activities on behalf of PSK.”

They also relied on the fact that when he was detained he was always released without charge, on the basis that there was no evidence against him. They summarised the position, as they saw it, at paragraph 50:

“Therefore to summarise our finding at this stage we find that the Appellant’s essential account of events in Turkey are likely to be true to the low standard required. We find that he had suffered various episodes of detention and harassment at the hands of the authorities in his home area and that all of this was due to the relationship with his father as the authorities wished to have information about the father’s activities on behalf of the PSK.

We are therefore satisfied that based on the extent of the harassment extending over several years the Appellant did experience persecutory behaviour at the hands of the authorities in Turkey.”

They then turned to consider what risk there would be to him if he were to be returned. They started by repeating the conclusion that his past treatment related specifically to the activities of his father. They accepted, at paragraph 55, that his father had died and made no specific finding about how he met his death. Then , at paragraph 56, their considered the risk assessment:

“…it appears to us that as the father’s death has been officially recorded and based upon the findings we have made in accordance with the evidence we have heard we have concluded that the authorities in Turkey can no longer have any interest in the Appellant. We accept that it is possible that he and his family may continue to experience less favourable treatment because of their ethnicity and religious persuasion but again we conclude that that in itself does not amount to persecution and does not add to the risk on return.

These matters are risk factors which have to be borne in mind when assessing the totality of risk on return to Turkey.”

They referred to the list of factors in IK and continued (paragraph 58):

“We have noted the efforts made by the Turkish government to improve their previously very poor record on the human rights particularly with regard to torture and accept that in certain situations torture continues and that there may be a real risk of ill-treatment in the course of questioning on return to Turkey particularly of those suspected by the authorities of involvement in left-wing or separatist groups. We find that there are two aspects of the evidence which are important here -- the first being whether the Appellant would be likely to appear on the GBTS system but we are satisfied that in accordance with the findings of the Tribunal in IK that the system does not include details of detentions by the security forces which did not result in some form of court intervention. We are satisfied and the Appellant states that he and his wife have never been formally charged -- that on each and every occasion they have been detained they have been released without charge and it has been clear that there has been no substantive evidence against them.”

Finally, at the end of their decision, they said:

“70.

We have given careful consideration to the question of how, if at all, the Appellant would claim to demonstrate that he is likely to be of any interest to the authorities in Turkey but based on the evidence we have concluded there is no evidence that the authorities will be looking for the Appellant if he is returned.

71.

For the sake of completeness we have taken account of the submissions which were made on behalf of the Appellant about relocation -- we accept a person in the Appellant’s position (with a dependant wife and children) could not behave as a young single man and it would be necessary for him to register with the local Mukhtar even if he chose not to return to his local area. But on the basis that we cannot be satisfied based upon our careful examination of the evidence that the Appellant has anything specifically to fear from the authorities arising out of past events we do not take that into account as a further risk factor.”

The arguments on both sides have been admirably concise and without, I hope, disrespect my conclusion can be equally so. I say at once that I make no criticism of the relative brevity of the tribunal’s reasoning. Indeed in many respects it is a model of how a decision can be expressed relatively shortly while covering the relevant material.

Mr Kovats says that the only question, in substance, is whether the crucial finding is perverse, that is the finding that the sole cause of the applicant’s problems with the authorities was his connection with his father whilst still alive, and that with his death those problems and risk have gone. Mr Collins says that that approach is much too simplistic and does not comply with the more sophisticated risk assessment required by IK.

I agree with Mr Collins. Paragraph 47 of A (Turkey), quoted in IK, makes clear that there needs to be a rounded assessment based on the up-to-date circumstances taking account of the various risk factors. Like Mr Collins, I do not consider that the tribunal has undertaken that task. I do not see this as a question of perversity. The conclusion which the tribunal reached about the connection with the father’s activities as a matter of history is understandable but that, as I read IK, is only the starting point for the assessment.

To my mind, the most important failure comes in paragraph 56, where the tribunal moved from the proposition that the past problems were associated with the father and the reference to his death, to the consequence that he “can no longer be of interest to the authorities”. They then proceeded on the basis that the relevant risk factors were simply those related to ethnicity and religious persuasion. However, if one looks at the list in IK (being careful not to treat it as a “checklist”) it is quite clear that two of the most important factors are background experiences and family connections. There is nothing in IK to suggest that, simply because the family connection has died, that is the end of the story; nor that because of that fact that one can wipe from the record, as it were, the whole of the material history, which we have been told in paragraph 78of IK is the starting point for the exercise.

There are two further matters which cause me concern.. The first is the treatment of the information system. The tribunal mention, and it is not in dispute, that the applicant would be unlikely to appear on the GBTS system. That is baseed on IK. Ifthey were seeking to infer that he would not come to the attention of the authorities, that seems to me to fly in the face of what is said in IK about the other forms of information that may be available.

The other point of which Mr Collins complains is the failure to consider the up-to-date objective material. Now at the time of IK, which was decided in 2004, there was understood to be an improvement in the experiences of treatment of Turkish Kurds in the south-east. This is referred to by the tribunal at paragraph 110 of IK where they refer to the evidence of:

“some significant reduction of reported incidents as the Government’s policies begin to bite”

Before this tribunal there was more recent material, which is summarised in Mr Collins’s skeleton. It included a June 2007 CMI Report and an Amnesty International report of May 2007. They show an unfortunate deterioration in the behaviour of the authorities in this area. Mr Collins says that there is no indication that the tribunal has taken any account of that. As I have already noted, the tribunal in IK commented on the fact that the assessment needs to be made in the light of the existing political and human rights context, which may very well change from time to time. That again seems to me an indication of a failure by the authority to carry out the comprehensive assessment required by IK. For those reasons, although I am very reluctant to say that this case must be considered yet again, I see no alternative but to allow this appeal.

I agree.

I also agree that the appeal should be allowed. I would, for myself, respectfully add to Carnwath LJ’s commendation of the structure and, with one crucial omission, the content of the AIT’s determination my own commendation of what they say in paragraph 49:

“We do not find that the fact that the Appellant and his wife ran away from the police when they arrived at Dover to be of great significance -- when assessing his credibility -- the Appellant explained that he was fearful that the police were about to return him immediately to Turkey and in all the circumstances of his arrival in a foreign country and not knowing what to expect we find that a reasonable explanation. We similarly do not hold it against the Appellant when assessing his credibility that he failed to claim asylum in another country on route from Turkey to the United Kingdom.”

The assertion of the independence of judicial fact-finding and evaluation in the context of the well-known endeavour by Section 8 of the 2004 Act to control it seems to me deserves the endorsement of this court.

The appeal plainly cannot be allowed outright since there is more than one possible answer to the unaddressed question. It follows, as it seems to me, that it must be remitted to the AIT for redetermination. Assuming then that the Home Secretary considers it right to continue to oppose this appeal on what will be its fifth appearance before the AIT, the next question is on what terms the redetermination is to take place. Provisionally it seems, I think, to all of us that the remission should be, in fairness to everybody, to a differently constituted tribunal; but we would like to hear counsel briefly both on this, if they have any submission about it, and on the perhaps more difficult question of what should be taken on the remitted hearing as given and what should be at large.