THE QUEEN ON THE APPLICATION OF INANC OZCAN v IMMIGRATION APPEAL TRIBUNAL [2002] EWCA Civ 1133

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN’S BENCH DIVISION

(Mr Justice Scott Baker)

[2002] EWCA Civ 1133

Case No Case No: C/2001/2352

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

THE QUEEN ON THE APPLICATION OF INANC OZCANAppellant

IMMIGRATION APPEAL TRIBUNALRespondent

Before

Lord Justice Potter

Lord Justice Judge

Sir Murray Stuart-Smith

Ronan Toal (instructed by Wilson & Co, London) for the appellant

Jenni Richards (instructed by Treasury Solicitors) for the respondent

Date 30 July 2002

Lord Justice Potter:

[1]INTRODUCTION: This is an appeal from the decision of Scott Baker J. dated 23 October 2001 whereby he refused permission to the appellant to claim for judicial review of the decision of the Immigration Appeal Tribunal (‘IAT’) dated 20 March 2001 by which the IAT refused the appellant permission to appeal from the dismissal of his asylum appeal by the adjudicator on 2 February 2001. Permission for the appeal to this court was granted on 22 February 2002 by Schiemann L.J. following an oral application by Mr Toal who appears for the appellant. We have since directed that the matter should come before us not simply as an application for permission to apply for Judicial Review, but, if permission be granted, as the substantive hearing of the application for Judicial Review which would otherwise be heard by the Administrative Court.

[2]S.20 of the Immigration Act 1971 provides:- “Subject to any requirement of the rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal affirm the determination or make any other determination which could have been made by the adjudicator.”

[3]Rule 18(7) of the Immigration and Asylum Appeals (Procedure) Rules 2000 (SI2000/2333) provides:

“Leave to appeal shall be granted only where – a) the Tribunal is satisfied that the appeal would have a real prospect of success; or b) there is some other compelling reason why the appeal should be heard.”

[4]The claimant submits that the IAT erred in law in finding that there was no ‘real prospect’ of his appeal succeeding.

[5]The appellant had arrived in the U.K. on 29 September 1999 without valid travel documentation and applied for asylum at the port of entry. His wife had travelled to the United Kingdom about three weeks before he did. His asylum interview took place on 13 January 2000 and on 17 April 2000 he received from the respondent a letter of refusal in respect of his application on the basis that, on grounds set out at considerable length, he did not qualify for asylum. It is not in dispute that paragraphs 2-5 of the letter of refusal accurately set out the basis of the appellant’s claim at interview as follows:

“3. You have applied for asylum on arrival in the United Kingdom on September 29th 1999. You claimed that you had been persecuted by the Turkish authorities and members of the MHP (Nationalist Action Party) because of your Kurdish Alevi ethnicity and your political identity as a TDKP (Turkish Revolutionary Communist Party) supporter. You were also persecuted after you witnessed a murder in April/May 1999. You stated that you had migrated to Mersin from your village in Goksun in 1990 because you had been put under pressure by the PKK (Kurdistan Worker’s Party) and the authorities. The military was pressurising you into becoming a village guard and the PKK were demanding you help them. You claimed that since living in Mersin you have been arrested on four or five occasions for undertaking activities for the TDKP. On each occasion you were detained for three or four days, tortured, and then released without charge. In April/May 1999, you were travelling in a dolmus when the vehicle was stopped by five armed men who claimed to be MHP supporters. They began to argue with the driver of the dolmus, stating that he should not be driving on their territory. The argument continued and the men then shot the driver dead. The armed men threatened you ands the other passengers that you should not act as witnesses to the event. However, when the police arrived at the scene, you and another passenger came forward and reported the incident. You were asked to go to the station where you gave a full witness statement. A week after you had given this statement, you started receiving threats. These soon became death threats and you decided to go into hiding. You remained in hiding until you left the country on 20 September 1999 concealed in the back of a lorry. You claimed fear of persecution in Turkey because of your Kurdish ethnic origin…”

[6]The appellant gave evidence before the adjudicator to the effect that he had a history of being detained and tortured by the Turkish authorities on account of his involvement with illegal, political organisations. The appeal is based upon the contention that both the adjudicator in his determination and the IAT in refusing to grant leave to appeal erred in law, in that they failed to take account of the background evidence provided as to the risk of ill treatment on return to Turkey for those with such a history. Alternatively, it is submitted that, given the adjudicator’s findings about the appellant’s history and background evidence to which I have referred, the IAT could not rationally have concluded that the claimant had no reasonable prospect of succeeding in an appeal to the IAT. THE APPELLANT’S EVIDENCE

[7]The account given by the appellant and accepted by the adjudicator included the following facts. He was born and lived until 1990 in an Alevi village in Goksun. In that village, on a substantial number of occasions, he was detained for short periods and beaten by the security forces being accused by the police of supporting the PKK (the illegal Kurdistan Worker’s Party) which advocates armed struggle both at home and abroad to achieve an independent Kurdish State. This was principally because of the political activity of other male members of the aplicant’s family. In order to escape such treatment he moved to the city of Mersin in 1990.

[8]The appellant’s brother and two of his uncles (who are now in the U.K. enjoying refugee status) were active members of Halkin Kurtulusu, an illegal political organisation which later became the TDKP, a party whose aim centred around belief in revolution and armed activity to support or play a pioneering role in its mass organisation. The appellant attended the meetings of TDKP, took part in marches and distributed leaflets and posters. As a result of such activity he was detained four or five times in Mersin between 1990 and 1995, the detentions lasting from three days to one week in the Central Police Station, during which time he was tortured. The torture to which he was subjected included being tied up and left in a room filled with water; having water dripped on his head for prolonged periods of time; being beaten with truncheons and plastic pipe; being kicked by police officers wearing boots; and being hit with a gun butt. He said the purpose of the beating to which he was subjected was to find out about his organisation and because he was an Alevi Kurd.

[9]By 1995 the appellant’s politically active brother and uncles were no longer in Turkey. He had completed his military service in 1993 and was married in February 1996. Thus far the adjudicator accepted his story. However, the appellant also stated that police interest in him revived after 1995 and he was detained several times. He said later that in 1999 he witnessed a murder by members of the MHP, a parliamentary party which, since May 1999, had been one of the parties in the coalition government. He gave a statement to the police in respect of the killing and thereafter his house was raided successfully by the MHP and the police and he received threats to get him to withdraw his statement. He then went into hiding because he considered his life was in danger. He was unable to leave at once. His wife left Turkey first and he followed 20 days later. He left Turkey concealed in a lorry and arrived in the U.K. on 29 th September 1999 without valid documentation. THE FINDINGS OF THE ADJUDICATOR

[10]The decision of the adjudicator broadly recognised a watershed both in the history of the appellant’s treatment and his general credibility as between his account of events up to 1995 and thereafter. For a variety of reasons, not least because his account as to being taken into detention post-1995 in Mersin did not come out at interview, the adjudicator did not accept that the claimant had been detained since that period or that the police or MHP were interested in him at the time he left Turkey. Nor did the adjudicator consider that the situation had changed in the meantime.

[11]The adjudicator had before him extensive documentation as to the conditions in Turkey in relation to the position of Kurds and the hazards which might be faced by returned asylum seekers. These included the Turkey Assessment of the Country Information and Policy Unit (CIPU) of the Immigration and Nationality Directorate of the Home Office for April 2000, as well as a lengthy report compiled for the appellant by Mr David McDowall, a specialist in Middle-East Affairs with a particular interest in the Kurds. The report took issue with a number of points advanced by the Secretary of State in his Letter of Refusal but, in particular, under the heading ‘What risks does Mr Ozcan face if he is returned to Turkey?’ Mr McDowall stated as follows:- “If, as I assume, Mr Ozcan is not in possession of a valid travel document, he will be fully interrogated by the Anti-terror Police if he is returned to Turkey. This is likely to take 24 hours or more. During this process it will be established that he is originally from Goksun, a contested area where the local Alevi Kurdish population was deemed to be largely sympathetic to the Kurdish guerrillas. A check will also be run on him in Mersin and there is clearly the danger that the police there will inform Istanbul that they wish to interview him and that he should be transferred to Mersin for further ‘interrogation’. I cannot say it definitely will happen, but I do think it is a distinct danger. It is very difficult to know the extent of the MHP networks inside the police, but I think one has to assume they are pretty extensive. I think one also should bear in mind the routine and systemic nature of torture while in detention. I append my file of e-mail press cuttings of the recent findings of the Turkish Parliamentary Human Rights Commission. ….. Most significantly, the Commission has clearly fingered the highest levels of the State as sanctioning torture, thus not allowing government ministers to get away with their usual excuses that it is simply regrettable misbehaviour at junior levels. I could not therefore put my hand on my heart and opine that your client would be safe if he returned to Turkey. There seems to me to be a clear risk that he might suffer miss-treatment if he returned.”

[12]The adjudicator did not specifically refer to the CIPU assessment report or other documents before him, the contents of which dealt with the widespread use of torture in Turkey in relation to detainees and the categories of person most vulnerable to the use of such methods and which the appellant had relied on. He simply stated his conclusions as follows:- “95. For the reasons set out, while I accept that the appellant’s account of his own and his family’s problems in Goksun up to 1990 is reasonably likely to be true, and also his account of his own and his family’s problems in Mersin up to 1995 is reasonably likely to be true.96. However, I do not accept that it is reasonably likely that: a) The appellant has been arrested on a frequent basis since 1995. b) The police or the MHP had any interest in the appellant at the time he left Turkey. c) The situation has changed in the meantime.

97. Neither the subjective nor the objective element of a well-founded fear of persecution for a Convention reason has been established to the required standard, and the appeal is dismissed.

98. As regards returnability, I note what Mr McDowall says on page 60, but in view of my assessment of the evidence I do not consider that the appellant is in a vulnerable category which might prejudice his treatment on arrival at Immigration Control in Turkey.” THE GROUNDS OF APPEAL

[13]The principal ground of appeal to the IAT and the only one with which Scott-Baker J. was concerned was a challenge to the rationality or sustainability of the final finding set out in paragraph 98 quoted above. The way in which it was and is put is as follows. The adjudicator had accepted that the claimant who was a Kurd had, up to 1990, been repeatedly detained for short periods and beaten by the security forces on account of their belief that he supported the illegal PKK; he had moved to the city of Mersin in 1990 in order to escape such treatment; he had been detained and tortured four or five times between 1990 and 1995 on account of his support for another illegal party, the TDKP. Further, the background evidence before the adjudicator demonstrated a risk of ill treatment including detention and torture for asylum seekers returned to Turkey if suspected by the authorities of support for illegal political organisations. In these circumstances the adjudicator’s conclusion that the claimant would not be at risk of persecution on returning to Turkey was irrational, as was the conclusion of the IAT that the claimant’s appeal did not have a real prospect of success. For these reasons, Scott-Baker J. was wrong not to grant the claimant permission to apply for judicial review of the decision of the IAT. THE BACKGROUND EVIDENCE

[14]Mr Toal has directed our attention to the following matters emerging from the documents placed before the adjudicator and the IAT which he submits are relevant to the case of the appellant but which he submits appear to have been overlooked by the adjudicator in concluding that the appellant was not in a ‘vulnerable category’ which might prejudice his treatment on arrival at immigration control in Turkey.(a) Article 169 of the Turkish Penal Code makes ‘aiding an illegal organisation’ an offence. That offence falls within the jurisdiction of the State Security Court in respect of which offences or suspected offences a person detained may be held incommunicado (see CIPU report 4.9-4.11).

(b) In November 1998 the Special Rapportuer of the UN Commission on Human Rights found that while torture was not systematic in Turkey in the sense that it was approved of and tolerated at the highest political level, in relation to offences falling under the jurisdiction of the State Security Court:

“the practice of torture may well, in numerous places around the country, deserve a categorisation of systematic in the sense of being a pervasive technique of law enforcement agencies for the purposes of investigation, securing confessions and intimidation in numerous places around the country. This was especially true if the less extreme, but still serious, forms of torture or ill-treatment referred to above are taken into consideration.” (CIPU Report, para 5.2). (c) the PKK (which the appellant had been accused of supporting prior to 1990) and the TDKP of which he had been an active supporter and in connection with which he had been detained and tortured prior to 1995, are both illegal political organisations. (d) the opinion of the UNHCR is that in Turkish cities where there has been a large influx of Kurds, the group most likely to be exposed to harassment/persecution/prosecution are Kurds suspected of being connected to or being sympathisers with the PKK. “in view of the above, UNHCR advise that it is essential to find out if Turkish asylum seekers, if returned, would be at risk of being suspected of connection to or sympathy with the PKK or have otherwise a political profile. If this is the case, UNHCR continue, they should not be considered as having been able to avail themselves of the option to relocate in the region outside the south-east of the country”. (See CIPU Report, para 7.28). e) Evidence as to the treatment of asylum seekers returned to Turkey, summarised in the CIPU report includes the fact that returnees known to the police for any reason may be taken into custody for interviews; those without documents will be subject to an ‘in depth interrogation’ referring, inter alia, to contacts with illegal Turkish organisations; in some cases enquiries will be made with other Government offices; ill-treatment cannot be ruled out in cases where returnees are suspected separatists; there has been an increasing number of cases lately where returned asylum seekers were picked up later by ‘unknown men’ and beaten up or arrested by the police and taken into police custody in order to obtain confessions from suspected persons. Finally the CIPU report states that: “7.37 Being of Kurdish origin does not in itself constitute a higher risk of inhuman treatment. Everything depends on the individual and his activities in Turkey and abroad.”

[15]Mr Toal has drawn our attention to certain observations by this court in two cases concerning the return of asylum seekers to Turkey. In Turgut –v- Secretary of State for the Home Department [2000] ImmAR 306 , the Court conducted a detailed assessment of the background evidence described as a ‘massive amount of material’ which, in the words of Simon Brown L.J. left ‘feelings of inevitable disquiet about the general situation in Turkey’. At the end of his searching review, Simon Brown L.J. stated:

“I come at last to my conclusion. It is not one that I found easy to reach. It can now, however, be stated very shortly. Despite the great wealth of material available to show that grave human rights abuses still regrettably occur in Turkey, and despite the lingering sense of unease which one must inevitably feel at the return of those like this applicant to Turkey, I am unable to hold that the Secretary of State was bound to find the risk of this particular applicant being ill-treated to be a real one. Clearly there exists a conflict of opinion as to the degree of risk faced generally by returnees to Turkey. I cannot say that the Secretary of State has not conscientiously appraised the question. Whether I myself would necessarily have made the same judgment is immaterial. His judgment, I conclude, was reasonable. It is therefore unassailable.”

[16]While Mr Toal recognises that every case has to be decided on its individual facts, he points out that the background material considered by the court in that case was very much to the effect of that before us. However in that case the Kurdish appellant, although a draft evader, had no real or suspected connection with the PKK or TDKP and had no criminal or political record in Turkey. Nor had he ever in the past been subjected to ill-treatment there.

[17]Mr Toal has also referred us to a decision of this court some six months after Turgut , namely Yelocagi –v- Secretary of State for Home Department (C/1999/7970), 16 May 2000, in which the court was concerned with the case of a Turkish national who had been an active sympathiser with the PKK and a campaigner for the rights of Kurds. In that case the adjudicator, whose findings were the subject of some criticism from the IAT and the court, had to consider, but had failed to make clear findings concerning, the extent of the connection existing between him and the PKK and the degree to which such connection was known to the authorities. The court considered that such was necessary in order to constitute ‘a firm factual base’ on which to determine whether, if returned to Turkey, the appellant was at risk of persecution for Convention reasons. On appeal to the IAT the parties had been in agreement in submitting that the matter should be remitted for re-hearing. However, the IAT ruled that that was not necessary and went on to deal with the matter on a basis which the Court of Appeal regarded as an unsatisfactory ‘gap-filling’ exercise. The principle assistance which Mr Toal seeks to derive from the decision in that case is that the court appears to have accepted that it was appropriate for the IAT to act (as it had) on the basis of a letter from UNCHR dated 22 March 1999, the relevant part of which reads:

“Persons who are suspected of having the slightest links with the PKK are detained and kept in detention. It is known that they are at times subjected to torture and ill treatment and cases of extra-judicial executions have been reported. In view of the above, it is essential to find out if Turkish asylum seekers, if returned, would be at risk of being suspected of connection to or sympathy with the PKK, or have otherwise a political profile.”

The advice in this letter is plainly that referred to in the extract from the CIPU report which I have quoted at 14(d) above.

[18]Mr Toal has in addition, referred us to a number of individual decisions of the IAT in which, on the evidence provided, it has been accepted that the appellant concerned faced a real risk on his return to Turkey of ill-treatment of a type which he had experienced prior to leaving. We have considered these decisions, but for my part I have found them of little or no assistance, bearing in mind the diversity of facts from case to case, and the fact that Miss Richards for the Secretary of State was equally in a position to refer us to many decisions in which the appellants’ case had been unsuccessful. Cases necessarily turn, and must be decided on, their own individual facts, and the observations of the IAT should be read with that in mind. The only decision which I consider is worthy of special reference is that of Cafer Kulet –v- The Secretary of State for the Home Department (IAT Appeal No.HX8798497(00 TH 00391) , an appeal by a Kurdish man whose family was actively politically involved in the illegal organisation DHKP. His sister-in-law had been imprisoned on account of her activities and the appellant had been detained and released after a short period as a result. He had subsequently taken steps to avoid military service. The adjudicator found that, because the appellant had been released after a short period, he was not suspected of involvement with DHKP. However, the President, Mr

Justice Collins observed:

“4. What the Special Adjudicator did not do, unfortunately, was to consider whether, on return, the Appellant would fall foul of the authorities because of the involvement of his family with the DHKP. The Tribunal is aware from many cases involving Turkish Kurds that there is a real risk that on return, they will be interrogated and indeed may be detained for a period while interrogated. If there is no reason to connect them with any past activities which would have drawn them to the attention of the police, then the likelihood is that they will be released and there is no reason to believe that there is a real risk of persecution, notwithstanding the Turkish Authorities propensity to engage in torture. But the situation may be somewhat different if there is a reason for the authorities to link the individual with activities of which the authorities disapprove and that clearly seems to us to be the position here, having regard to the activities of the family. We should say that although it is not entirely clear from the adjudication, it does not seem that the Special Adjudicator was rejecting the Appellant’s account so far as it related to the involvement of his family.”

[19]In the event, the IAT found that the decision of the adjudicator could not stand as it had failed to deal with those matters. It is necessary, however, to note the observation made by Mr

Justice Collins at the end of his judgment (which I would endorse) to the following effect:

“We would like to make it clear, largely because there is too great a tendency to cite decisions of the Tribunal in cases such as this as precedents, that this is not a precedent. This is a case which is decided, as so many are, purely on its own facts….”

[20]In opposing the appeal, Miss Richards has submitted that, on the facts as found by the adjudicator, the appellant was someone who had been subjected to ill-treatment in the past because of the political activity of his male relations, but had not since 1995 been either the subject of ill-treatment by the authorities or of apparent continuing interest to them. The adjudicator’s finding that “ in view of my assessment of the evidence I do not consider that the appellant is in a vulnerable category which might prejudice his treatment on arrival at immigration control in Turkey” should be read on the basis that, despite lack of specific reference to the background evidence, the adjudicator had fully taken it into account. Miss Richards points out that in R (on the application of Roszkowski ) –v- Special Adjudicator , 31 October 2000 (CO/2609/1999) Keene LJ stated:

“I cannot accept that in such a situation an adjudicator is required to spell out a detailed analysis of the numerous reports and documents produced by way of background material in such a case. It would, as Mr Hunter submitted, place an intolerable burden on adjudicators. It is to be borne in mind that the duty is to give reasons for the decisions reached, not to give reasons for every individual conclusion arrived at in the course of the decision. As was said in Reg –v- Criminal Injuries Compensation Board ex parte Cook [1996] 1 WLR 1037, the reasons should contain sufficient detail to enable the reader to know what conclusion has been reached on the principal important issue or issues, but it is not a requirement they should deal with every material consideration to which they have had regard. It is not necessary to demonstrate that “the conclusion has been reached by an appropriate process of reasoning from the facts”: per Aldous LJ at 1043 CD and 1045D.”

See also R -v- Secretary of State for Home Department, ex parte Befekadu [1999] Imm AR 467 at 474-5.

[21]I do not seek to detract from these statements or to add to the burden on adjudicators in cases of this kind. However, I do consider that, on a thorough examination of the adjudicator’s decision, it is well arguable that he failed to bear in mind those factors relevant to the appellant’s case history which he had accepted, when considering whether, on the return of the appellant, he was in a ‘vulnerable category’ as the adjudicator put it. The difficulty seems to me that it is not clear(a) what categories the adjudicator considered were vulnerable/not vulnerable as a result of the background information he had seen;

(b) why the adjudicator considered that the appellant did not fall within a vulnerable category. It is to be inferred that the adjudicator’s decision was based on the absence of arrest ‘on a frequent basis since 1995’ and the absence of police interest ‘at the time he left Turkey’. However, the adjudicator did not apparently approach or address the position which troubled the IAT in the Cafer Kulet case, namely the likelihood of interrogation of the appellant on his return and the making of enquiries into his past activities and links with his family. In this connection, his male relations who had been politically active in the past had themselves fled and were now enjoying the status of refugees in this country on the basis of their activities. It seems to me that it is arguable on appeal that the decision of the adjudicator involved his having overlooked or left out of account the individual circumstances of the appellant in those respects.

[22]I should not by this decision be taken to suggest that it is necessary or even desirable for the IAT to create defined categories of those Turkish or Kurdish refugees who should be considered ‘vulnerable’ or ‘not vulnerable’ upon their return. It is clear from the material provided that treatment of individuals who are, or may be, suspected on their return of being political activists or past activists is uneven. What is important is that, as indicated in the CIPU report, each case falls to be considered on an individual basis rather than on the basis of categorisation. The IAT and the judge seem to have been satisfied that that is what happened in this case. I am unable to agree. I think it arguable that the appellant was dealt with on the basis of a method of categorisation in the mind of the adjudicator which is not clear and deserves reconsideration on appeal.

[23]I would therefore allow the appeal from Scott Baker J; I would grant the appellant’s application for Judicial Review of the decision of the IAT to refuse leave to appeal, and order that the appeal proceed to a hearing before the IAT.

Lord Justice Judge:

[24]I agree Sir Murray Stuart-Smith

[25]I also agree

Order

Appeal allowed with costs; detailed assessment of costs here and below. (Order does not form part of the approved judgment)

Cited in 1 later judgment

Dagdelen, R (on the application of) v Secretary of State for the Home Department 2003