Tezgel v Secretary of State for the Home Department [2004] EWCA Civ 1766

Case No C4/2004/0839[2004] EWCA Civ 1766
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Friday, 10 December 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE POTTER
LORD JUSTICE BUXTON
LORD JUSTICE SCOTT BAKER
Between
LEVENT TEZGELAppellant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR YASREEB ZAIRD (instructed by Duncan Lewis & Co, London E8 2JS) appeared for AppellantMS LISA GIOVANNETTI (instructed by Treasury Solicitor) appeared for Respondent
J U D G M E N T

LORD JUSTICE POTTER:

Lord Justice Scott Baker will give the first judgment.

LORD JUSTICE SCOTT BAKER:

[2]The applicant is aged 31. He is an Alevi Kurd. He arrived in the United Kingdom on 2nd June 2001 in the back of a lorry and claimed asylum. His claim was refused by the Secretary of State by letter dated 10th September 2001 and he appealed to an Adjudicator.[3]Mr J R Gibb (the Adjudicator) heard his appeal and promulgated his decision on 3rd April 2003. As is frequently the case, the Adjudicator had to consider concurrent claims by the applicant, both under the Refugee Convention and Article 3 of the Human Rights Convention.[4]The applicant's appeal succeeded on both bases. It did so in the main on a very specific ground, namely what might happen to him at the airport on his return. But it appears from paragraph 24 of the adjudication, to which I shall return shortly, that the Adjudicator also found in favour of the applicant on a more general basis.[5]In January 2002, that is between the original refusal of his claim by the Secretary of State and the hearing of his appeal by Mr Gibb, the applicant suffered a brain haemorrhage.[6]He underwent surgery and after some weeks in hospital was released into the care of his brother and his family.[7]Although improving, the applicant was still, at the time of the hearing before the Adjudicator, in what the Adjudicator described as "a fragile condition" with both concentration and memory problems.[8]The Adjudicator said that his concern was that the applicant's concentration and memory problems would be mistaken by the Turkish authorities for evasiveness. In the course of questioning on his return into Turkey, the authorities might resort to physical violence which, given his condition, could have disastrous consequences.[9]But for the particular fragility, as the Adjudicator described it, in the absence of any link to a Separatist Organisation, the applicant would probably on return only be questioned briefly and detained for a short period.[10]So the Adjudicator focused his decision in the main on what would happen to the applicant on his arrival at the airport.[11]The Secretary of State appealed against the Adjudicator's decision on the ground that it was not based on any evidence; it was surmise. True, the applicant was suffering from the brain condition described but there was no evidence to indicate that the Turkish authorities might behave in the manner he found. There was no direct evidence, nor was it an inference that the Adjudicator could properly draw.[12]There was no basis for the Adjudicator saying that the applicant's memory and concentration problems would be mistaken for evasiveness. One might suppose that if the applicant arrived armed with a medical certificate the authorities would pay heed to what it said. Nor was there any basis for the conclusion that if the authorities thought he was evasive - in the absence of any link to a Separatist Organisation - that they might resort to violence.[13]The Immigration Appeal Tribunal agreed with the Secretary of State's submissions and allowed the appeal.[14]The applicant sought permission to appeal to this court. The IAT refused. Sedley LJ, after calling for a copy of the relevant CIPU report, refused permission on paper.[15]But the applicant renewed and on 30th August of this year Sedley LJ and Neuberger LJ heard the renewed oral application.[16]They granted the applicant permission to amend his notice of appeal. They adjourned the application for permission to appeal to be heard by the full court on notice to the Secretary of State and with appeal to follow if permission was granted.[17]That is how the matter comes before us today.[18]Unfortunately, we have no transcript of what Sedley LJ said. However, we do have the amended grounds of appeal that were lodged shortly after the hearing at the end of July. Paragraphs 16 to 18 are in the following terms:
"The Tribunal, having dealt with the fact that the Appellant will have no difficulties at the airport and that the Adjudicator was wrong to have thought that he would have, did not apply their minds to what will happen to the Appellant after he passes through the airport. "
It is submitted [it] is clear that on the findings of fact of the Adjudicator [he did have] a well founded fear of persecution at his home village."[19]It is not very well phrased, but what it means is that he did have a well-founded fear of persecution at his home village:
"The Adjudicator has accepted the evidence of the Appellant's history of detention and mistreatment culminating in his last detention for a week, mistreatment leading him to be dumped in a field in an unconscious state. "
The Adjudicator having then found that he would have difficulty in passing through airport security did not need to decide on the issue of well founded fear of persecution in the Appellant's home village and whether internal flight alternative was open to the appellant."[20]It is desirable to have a brief look at the applicant's asylum claim.[21]The Secretary of State, in his decision letter, rejected four-square the applicant's claim to a well-founded fear of persecution and challenged his credibility. He did not take the point that the applicant could safely go and live elsewhere in Turkey.[22]When the Adjudicator heard the appeal, Mr Quy for the Secretary of State shifted the emphasis. While he maintained the credibility challenges in the refusal letter, he advanced as the main reason for dismissing the appeal internal relocation.[23]In the adjudication at paragraph 14 the Adjudicator said this:
"Although Mr Quy, for the respondent, submitted that the main reason that I should dismiss the appeal was not connected with credibility but rather with internal relocation there were a number of credibility challenges in the refusal letter. These were maintained, with the above qualification, at the hearing."
[24]It is unclear what, if any, argument or evidence was advanced in response to the submission that relocation was the solution, in particular whether it was suggested that the applicant's medical condition would make living elsewhere than in his home village unduly harsh.[25]The Adjudicator made no finding, with the exception of paragraph 5 which is in these terms:
"Where the issue of internal relocation has been raised I have considered whether, if there is a real risk in one part of the country, it would be unreasonable or unduly harsh to expect him/her to live in another part that is suggested to be safe."
[26]It seems to me that that paragraph is no more than a recitation by the Adjudicator of a standard form of words in the section of his adjudication dealing with the relevant law and that nothing further should be read into it.[27]We do not criticise the Adjudicator for the approach that he took. The point about possible internal relocation was not critical in the light of his decision that the applicant's appeal succeeded on the basis of events that might occur at the airport.[28]It is however necessary, for present purposes, to look at the applicant's case about what had happened to him in Turkey before he left. This is set out at paragraphs 15 and 16 of the adjudication.[29]He was born in Dagilgan in Aksaray. He was at school from the ages of 7 until 14, when he left because of bullying that resulted from the fact that he was an Alevi Kurd. He was treated differently by the teachers, and in particular the head teacher. The teachers insulted him in class, called him a "disgusting Alevi" and forced him and other Alevi Kurds to sit at the back and refused to allow them to join in activities such as sport. After leaving school he got a job in a leather factory but was sacked when it was found out he was an Alevi. He did not get another job and his opinion was that he was discriminated against in his job applications because of his ethnic origin and religion.[30]His evidence was that he was arrested seven times. Each time, they came to the Alevis' place of worship and took away a number of men. He was taken with his father and older brother - his brother left Turkey several years before he did for similar reasons. The applicant's first detention was when he was about 14.[31]He was subjected, during these detentions, to ill-treatment which included beating, falaka and electric shock. Most of his detentions lasted for about 24 hours. The final occasion was in April 2001 when he was held for a longer period. He found himself regaining consciousness in a grass field where he presumed that he had been left by his assailants. It was this final occasion that caused him to leave the country and eventually to end up in the United Kingdom.[32]The Adjudicator noted a number of errors and lack of detail in the applicant's evidence but decided, as he put it, to give him the benefit of the doubt and he concluded that he had established that the account that he had given was reasonably likely to be true.[33]The Adjudicator never dealt with the position of what would or might happen to the applicant if he returned to his home village. That was because he concluded that the applicant's asylum and human rights claims were established through likely events that would occur at the point of entry into Turkey.[34]Paragraph 14 of the Adjudicator's determination, to which I have already referred, suggests an acceptance by the Secretary of State before the Adjudicator that, if the applicant's account was accepted, relocation was an issue.[35]Having dealt at paragraph 23, which is the first paragraph of a two-paragraph conclusion, with how he saw the situation at the airport, the Adjudicator went on to say this at paragraph 24:
"Having applied the abovementioned standard of proof to all of the evidence relating to this appellant I conclude that he has established a well-founded fear of persecution for a Refugee Convention reason (race and religion) and that there is a real risk of a repeat of ill-treatment serious enough to amount to an Article 3 breach."
[36]In my judgment it is difficult, if not impossible, to read paragraph 24 as being confined only to events at the airport.[37]The Refugee Convention finding, referring as it does specifically to race and religion, it seems to me is directed towards events in the home village.[38]I note also that in the opening words of the paragraph the Adjudicator refers to "all of the evidence relating to this appellant". That of course must include the evidence of what had happened to the applicant in his home village which, albeit with some hesitation, was in the event accepted in full by the Adjudicator.[39]It may of course be that in paragraph 24 the Adjudicator was intending to do no more than wind up his finding by saying that both the human rights and asylum claims were established.[40]However, the Secretary of State's appeal to the Immigration Appeal Tribunal took it as having the greater significance with which I have read it.[41]At page 25 of the bundle, having set out in some detail the first ground of appeal relating to likely events at the airport, the Secretary of State goes on to lodge a second ground of appeal which runs as follows:
"The adjudicator has allowed the appeal (paragraph 24) under the refugee convention, stating he has a fear due to his race and religion. However he allowed the appeal primarily [and I emphasise that word] (paragraph 23) because of the appellant's medical condition and the consequences of this when returned and questioned. It is submitted that the Adjudicator erred in concluding that this breaches the refugee convention."
[42]The Tribunal in giving permission to appeal, significantly in my judgment, gave leave to appeal on both of the grounds.[43]The applicant, for whom Mr Adler acted before the Tribunal, appears to have directed his response to the appeal primarily towards what was likely to happen at the airport. Mr Waumsley, the Chairman of the Tribunal, put it this way in paragraph 6 of his determination:
"in his submissions on behalf of the claimant, Mr Adler did not seek to argue that, were it not for the continuing effects of his brain haemorrhage, the claimant would be able to show that he would be at risk of persecution and/or ill-treatment in breach of his human rights on his return to Turkey. He was right not to do so. In the light of the fact that, by his own account, the claimant has never been taken to court or charged with any offence, and that he does not claim that he is 'wanted' by the Turkish authorities, such a submission would plainly be unarguable in the light of the evidence to be found in the latest edition of the Home Office Country Information and Policy Unit Assessment relating to Turkey issued in October 2003 at paragraphs 5.37 to 5.43 inclusive."
[44]It is not clear in my judgment to what extent if at all the Tribunal's attention was directed to what might happen to the applicant if he passed safely through the airport and returned to his home village.[45]Having believed the applicant's account that I have recounted, an account that involved seven separate arrests, beating, and electric shock, the last occasion resulting in being left unconscious in a field, there was an unchallenged finding that the applicant had in the past been subjected to treatment that crossed the necessary threshold for both conventions.[46]Ms Giovannetti, who has appeared before us for the Secretary of State, does not suggest otherwise.[47]The last occasion when anything untoward happened to the applicant was as recently as 2001. What, one asks, might happen in the future were the applicant to return to his home village? It is at this point, it seems to me, that, first of all, the question of relocation arises and, secondly, the Tribunal did not apply its mind either to what was likely to happen or whether the relocation issue required serious consideration as a consequence.[48]True, the onus is on the applicant to show that it would be unduly harsh to relocate elsewhere and true it is that the applicant filed no respondent's notice inviting the Tribunal to uphold the Adjudicator's decision, even if the Tribunal was wrong about what might happen at the airport.[49]The position is, in my view, far from satisfactory. I have considerable sympathy with the Tribunal. We do not know what was said about internal relocation before the Adjudicator. Nor do we know precisely how far Mr Adler went in:
"Not seeking to argue that were it not for the effects of the brain haemorrhage the applicant would be able to show he was at risk of persecution and/or Article 3 treatment."
[50]The Tribunal, in referring to his approach, certainly appears to have been concentrating very much on events at the airport in that passage in paragraph 6.[51]The Tribunal appears, when referring to Mr Adler's submission, to have been focusing, as I have said, primarily on the position at the airport and not on what might happen thereafter.[52]Yet there was a second ground of appeal relating to the position in general rather than to that at the airport in particular.[53]This court's power to interfere with the decision of the Immigration Appeal Tribunal is dependent on there having been an error of law.[54]The Immigration Appeal Tribunal was, in my judgment, entirely correct on the basis of Subesh & Others [2004] EWCA Civ 56 to decide that the Adjudicator was wrong in his findings about what might happen at the airport. His conclusion quite simply was not evidentially based.[55]On the other hand, I have serious doubts whether the IAT was correct not to go on and consider the issues of risk of future treatment beyond the airport and the applicant's possible relocation.[56]Whether there was in truth an error of law is not possible to determine with certainty without full knowledge of what was conceded and/or argued before the Adjudicator and the IAT.[57]I cannot see that such information is now likely to be forthcoming. Bearing in mind the anxious scrutiny and care with which these cases must be considered, I would grant the applicant permission to appeal, I would allow the appeal and I would remit the case to the IAT for the issues of risk of persecution and Article 3 treatment together with the internal flight question to be considered.

LORD JUSTICE BUXTON: I agree. For the reasons given by my Lord, it seems to me inescapable that in paragraph 24 of his determination the Adjudicator made a specific finding that the applicant did have a well-founded fear of persecution for a convention reason and was in risk of serious treatment under Article 3 of the Human Rights Convention, in respect of his fears, as to what would happen to him if he returned to his home region.

[59]That the Adjudicator was referring by that comment in his adjudication to that question, and not simply to the question of what might happen at the airport, is, I think, demonstrated by the fact that he was specific that his concerns in that regard were in respect of persecution on grounds of race and religion.[60]As Ms Giovannetti very fairly accepted, anything that happened at the airport was not likely to be germane to race and religion, but rather directed at the applicant's political convictions, of which it was accepted there was no evidence at all.[61]Those two grounds upon which the Adjudicator proceeded, firstly the airport and secondly affairs at the applicant's home village, were in my view recognised by the Secretary of State who referred separately to both of those grounds in his/her notice of appeal to the Tribunal.[62]It is not demonstrated, in my view, that at the hearing before the Tribunal, reliance upon the second ground, that is to say persecution in the home area, was abandoned on behalf of this applicant.[63]That being the case, it was, in my view, incumbent on the Tribunal to deal with both of the grounds upon which the Adjudicator had found in favour of the applicant. That they did not do so is not, in my view, a matter for which they are to be criticised in view of the unsatisfactorily vague way in which this case appears to have been pursued in front of them.[64]Nonetheless, that question, in my judgment, remains unresolved. It, at the moment, stands as a finding in favour of this applicant and it is essential that the matter be remitted to the Tribunal in the way that my Lord has suggested so that the true view of the Tribunal can be ascertained on that important point.[65]I would agree that the matter should be disposed of in the way that my Lord proposes.

LORD JUSTICE POTTER: I agree with both judgments and the court will order remission in the terms referred to by Lord Justice Scott Baker.

[67]MS GIOVANNETTI: The only thing I was not entirely clear about was whether my Lords had in mind to remit to the same Tribunal to consider the outstanding matters, given that the Tribunal finds --

LORD JUSTICE POTTER: Yes, they are still around.

[69]MR ZAIRD: Your Lordship, the only thing I have to ask for is costs, detailed assessment.

LORD JUSTICE POTTER: Yes, you are entitled to that.

Order

Appeal allowed. The case will be remitted to the IAT for the issues of risk of persecution and Article 3 treatment together with the internal flight question to be considered. Detailed costs assessment.