Aytac, R (on the application of) v Immigration Appeal Tribunal

1. MR JUSTICE COLLINS: The claimant is a Kurd and comes from Turkey. He is now 26 years old. He is sympathetic to the separatist movement. He said that since he was Kurdish, he had and his family had always supported the PKK, but he lived in an area where the PKK were active and so there were security forces there, and his village was regularly raided. Houses were searched and there would be beatings of members of the house owner's family.

2. He said he himself was first detained in July 1996 during such a village raid and was questioned regarding PKK activities in the area. He said he was tortured by being subjected to cold pressurised water and by being beaten. At the end of five days he was released.

3. The next detention was about a year later in August 1997, when again he was taken from his home. Apparently he was told that someone had informed that there had been a meeting at his house in commemoration of the beginning of the PKK armed struggle. He, and it would seem his family, were taken into custody. He says that he was asked in particular about a cousin. He was unable to give answers and was further tortured. He stated that his hearing had been damaged and his hands shake since he has lost control of his nerves.

4. He said he was then forced to become an informer. Between August 1997, (so presumably immediately after his release) and February 1999, he undertook his military service. As a result he said he became more interested and aware of politics and on his return began to discuss issues with other young men in his village. He would go and attend meetings of HADEP and when guerrillas came to the village, he would assist to accommodate them and to provide for them.

5. He said in October 1999 the gendarmes found out about the assistance he was giving the guerillas, came to his house and began beating his family and handcuffed him, took him away and interrogated him. He was tortured for about a week. Again, he was pressurised into becoming an informant. Because of the torture he decided to accept that offer, but decided on release that he should go to Istanbul.

6. His final detention was following a demonstration in protest at the banning of 1 May celebrations in Kurdistan in 2000. He said he was taking a banner into the protest area and was then detained by the police, taken to the anti-terrorist branch and detained for six days. During that period he was tortured and his fingerprints were taken. He decided that following that he ought to leave, and he managed to arrange to be taken in the back of a lorry to the United Kingdom where he arrived on 18 June 2000 and claimed asylum.

7. His claim was rejected on 24 January 2001. In the course of that rejection, the Secretary of State made it plain that he did not believe the account which had been given, at least did not believe certain salient features of that account. Thus in paragraph 12 the Secretary of State noted what was said about the period of detention in October 1999 and stated as follows:

"He considers your simultaneous claims that your village was constantly raided by the Turkish gendarmes and that PKK guerrillas stayed at your village where you helped them, however, to be in conflict and therefore undermine the legitimacy of your account. The Secretary of State does not consider it credible that the guerrillas would have spent so much time in a village which was allegedly raided so frequently by the authorities, or, if this was indeed the case, that the gendarmes would not have discovered your alleged activities until eight months after your return to your village."

8. In the next paragraph he noted the fourth period of detention in Istanbul. He went on:

"He finds the alleged facts that you ran away to Istanbul to avoid the authorities and your attendance at HADEP meetings and the May Day demonstration, however, to be in conflict. The Secretary of State considers this to demonstrate that you deliberately brought yourself to the attention of the authorities even though you claim to have been fleeing from them because you believed yourself to be a target."

9. Because he also took the view that the earlier releases without any charge showed that in fact the claimant was of no real interest to the authorities, he rejected the claim that he was a target, or that he had any well-founded fear of persecution. He did go on to take a thoroughly bad point that a genuine refugee, who travelled through a safe country would claim asylum there even if the United Kingdon was where he wished to settle. The badness of that point does not detract from the other points that were taken in the refusal letter.

10. The claimant appealed to an adjudicator. His appeal was heard by Miss Grimmett on 22 February 2002. The Home Office was not represented before the adjudicator. Her determination is relatively short, and none the worse for that. She rejected the appellant's evidence of the detentions in October 1999 and May 2000. She accepted that he had been detained and ill-treated in 1996 and 1997, saying that his evidence was consistent and that many such detentions were occurring at that time when the struggle between the PKK and government was continuing.

11. She went on to note that by October 1999 there had been a ceasefire. The leader of the PKK, Abdullah Ocalan, who had himself been arrested, had instructed the PKK to withdraw from Turkey. Certainly the situation as a result of that ceasefire had improved.

12. Mr Hardy's complaint, as will become apparent, is that the adjudicator placed far too much reliance upon the existence of the ceasefire in rejecting the claimant's account and in finding that he was not at any real risk if returned.

13. What she said in paragraph 13 was as follows:

"However, there was considerable change by October 1999 when he claims to have been detained for the third time. By then Ocalan had instructed the PKK to withdraw from Turkey and most had. There were a few dissident groups, but the Appellant suggests he was at that time regularly helping the PKK by sheltering them. He does not explain how this became known to the authorities. The violence had considerably reduced and it seems to me that the authorities would have been unlikely to target him at that time more than two years after his previous detention when he had not come to their attention in the interim. In addition he was arrested from his home where he says the PKK were sheltered yet does not claim any other member of his family was troubled as a result of this save at the time he was arrested. Had he been suspected of helping the PKK from his home I would have expected his father to have been detained at the same time."

14. It seems to me that the adjudicator cannot be criticised for making the point that after the ceasefire and the instructions to withdraw, it would be less likely that there were PKK guerrillas who needed shelter and, therefore, the claimants's activities were unlikely to have occurred.

15. Equally reasonable is the point that if it was his household which was giving succour to the guerrillas, then the likelihood would be that all in the household would be detained, and not just the claimant, particularly as the last occasion on which he had come to the attention of the authorities and been detained was some two years before albeit of course he had been undertaking military service in the mean time.

16. That leaves the sentence which is particularly attacked by Mr Harding, that violence had considerably been reduced and that the authorities would have been unlikely to target him at that time. If one looks at the paragraph as a whole, it seems to me that the adjudicator is using the existence of the ceasefire in a perfectly proper way to throw considerable doubt upon the likelihood of what the appellant says he was doing which led to his detention being true. There would have been an improbability that guerrillas, as I have said, would need to be sheltered because the ceasefire would have made it unlikely that they would still be in the area. Equally, that too would make it unlikely that the claimant would be the subject of targeting for that reason. All is tied in with the existence of the ceasefire and, more importantly, the result of the ceasefire in that guerillas would have left the area.

17. When dealing with the 2000 May detention in Istanbul the adjudicator said this at paragraph 14:

"Similarly by May 2000 the authorities in Istanbul would have in my view been unlikely to detain and torture a man unknown to them at a time when the security situation had improved and the armed struggle was at an end."

18. Of course, if he was on record as a suspected dissident who was or had been involved with the PKK and if he was re-arrested, he might well find himself being tortured. The point that the adjudicator was clearly making in paragraph 14 was that by May 2000 the atmosphere made it unlikely that someone who was demonstrating as was this claimant against the banning of a parade would have been arrested in the first place. It is not suggested that everyone who attended that demonstration was automatically arrested.

19. True it is that the claimant said he was carrying a banner. Equally the adjudicator found that it was, in her view, not the case that following his earlier detentions and releases in 1996 and 1997, the claimant's detail would have been kept on record. She dealt with that in paragraphs 16 and 17 of the determination. Having rejected the account of arrest and detention in Istanbul, she found that he was not fingerprinted.

20. All this is of course material to the one question that the adjudicator had to determine, which was whether at the date of the hearing before her, the claimant had a well-founded fear of persecution. That meant in the context of a case such as this, was there a real risk that if returned, he would be detained and, if detained, he would be tortured?

21. It is important that findings should be made whether he was someone who was likely to arouse the interest of the authorities on return if he was someone who was a suspected activist, or who had been suspected of criminal acts of violence, or was the subject of a warrant for his arrest, or had been charged and had evaded arrest, or was a member of a family containing activists, and there was reason to believe that he might have information which would enable other activists to be detected. The mere fact of the ceasefire would not remove interest in those who had been actively involved in the PKK. The security forces would no doubt maintain an interest.

22. The crucial point would be whether the particular individual, in this case the claimant, was someone who would arouse the adverse interest of the authorities on return. The adjudicator's findings were that he would not. That was largely because she did not accept his account of the detentions in 1999 and 2000.

23. The adjudicator was, in my view, entitled to reach her conclusions in relation to the account given by the claimant. She gives sufficient reasons for concluding as she did. She did not, in my view, rely excessively upon the existence of the ceasefire, but put it into its proper context.

24. Mr Harding has sought to rely on conclusions reached in other determinations of the tribunal. Those are not of any real assistance because they all depend upon the facts of the individual case. As I have already indicated, a person who is, for`whatever reason, likely to be of interest to authorities because of suspicions that he may have been involved with the PKK on an active basis, or may be able to provide useful information, may well establish that there is a real risk of persecution on return. Each case has to be considered on its merits.

25. The refusal of permission to appeal which is under attack, was given on the 15 April 2002. Mr Rapinet, the Vice President, stated that the findings of the adjudicator in relation to the alleged 1999 detention took full account of the objective evidence despite what was alleged in the grounds. He referred to the CIPU report which stated that the PKK was almost completely inactive during 2000 and referred to the end of the conflict in 1999.

26. As I have already said, it seems to me that cannot properly be criticised and certainly cannot be regarded as an error of law. It may be that another adjudicator might not have reached the same conclusion on the facts. But the tribunal only decides that findings of fact should be reconsidered if those findings are clearly wrong. The tribunal's view that another decision was a possible one, is nothing to the point and does not mean that the findings made by the adjudicator are arguably wrong.

27. Mr Rapinet continued:

"The findings as to the risk of return are equally valid. Returned asylum seekers do have travel documents despite what is stated in the ground."

28. So far as that is concerned, the point is made that there was no evidence before Mr Rapinet that returned asylum seekers had travel documents. As it happens, the latest CIPU report indicates that that is the position, and Mr Rapinet has enormous experience of dealing with cases from Turkey, as indeed do all members of the Immigration Appeal Tribunal. But that is a point which is not and cannot be in any way determinative. The real issue, as I have said, is whether the adjudicator was correct to indicate that there was no real risk of detention on return. Even if the claimant returned without travel documents, he would be recognised as someone who was being returned from the United Kingdom, as was the case with many Turkish Kurds.

29. The fact is that many come to the United Kingdom in order to better themselves. The situation in Turkey for Kurds has been an unpleasant one, and there have been economic difficulties as a result. There is no question that some have come to this country as economic migrants and not only to this country but also, in particular, to Germany. Thus, the authorities would readily believe that someone returned might well have sought asylum as a means of trying to remain in the United Kingdom, but in reality, was an economic migrant. That in itself is a perfectly good motive for having left Turkey. Therefore, unless there is any reason why that person's details should be recorded because of the previous detentions and suspicions, even if his identity were checked at the airport, he would not run any real risk of anything worse.

30. Here the adjudicator's findings that he would not be on record as a result of the previous detentions which she accepted is one which is of importance and is, in my view, one which is not arguably wrong.

31. The absence of a presenting officer before the adjudicator has led Mr Harding to take the point that the adjudicator's findings or the matters that were troubling the adjudicator may not have been put to the appellant so that he could deal with them. In particular, the ceasefire point may not have been put. I say may not because the claimant was represented by counsel before the adjudicator and no steps have been taken to ascertain from counsel whether that was or was not a good point.

32. It should be made clear that if such point is to be made, then it must be based on material and at the very least, whoever represented an appellant before the adjudicator should be asked to confirm whether it is or is not a good point. Because if such an allegation is made, an adjudicator may have to be asked for his comments upon it or at the very least the record of the proceedings will have to be examined. That has not happened in this case, and it is not a point which I regard can properly be taken at this stage. It was mentioned somewhat in passing in the grounds of appeal to the tribunal, but again no material to support it was produced. In all the circumstances, I see no error of law in the determination of the tribunal.

33. Accordingly this application is dismissed.

34. MR HARDING: My Lord, could I ask for what my learned friend tried to ask for earlier, but could not remember either? I believe it is a detailed assessment.

35. MR JUSTICE COLLINS: Yes. Mr Patel, I take it in the circumstances you ask for nothing more?

36. MR PATEL: No, my Lord.