Dede v Secretary of State for the Home Department [2005] EWCA Civ 1515

Case No C5/2005/0891[2005] EWCA Civ 1515
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Tuesday, 8th November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
Between
MERDAN DEDEAppellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR EDWARD GRIEVES appeared for Appellant for The Respondent did not appear and was not represented
J U D G M E N TTuesday, 8th November 2005

LORD JUSTICE SCOTT BAKER:

[1]The applicant is a citizen of Turkey. He is 32. He arrived in the United Kingdom on 17th December 2002 on his own passport which contained a visa. He was given limited leave to remain until 2nd June 2003 but on 22nd January 2003 he applied for asylum. The Adjudicator was somewhat concerned about the delay in applying for asylum but, in the end, did not regard it as determinative against the applicant. His application was refused by the Secretary of State on 17th March 2003, the Secretary of State's reasons being set out in his refusal letter of 14th March. He appealed to an adjudicator who promulgated his decision, refusing the appeal on both asylum and human rights grounds on 15th September 2003.[2]The applicant is an Alevi who claims he has suffered persecution as a result of his Alevi religion and political opinion. His problems started when he moved to Gaziantep in 1999. Thereafter, he and his family were pressured and windows smashed. He complained to the police, who did not do anything about it. He became a supporter of HADEP, who he saw as supporters of Alevi. On 21st August 2001 he was arrested, along with six others, and interrogated. He was treated brutally, detained for five days but released without charge. He then went to Hungary for ten days on a visa and, later, to Austria for another ten days, also on a visa, in each case returning to help to run the family's estate agency business.[3]His second arrest was just before the November 2002 election. He had been distributing leaflets and posters and, again, was actively supporting HADEP. He was again treated brutally, but released after four days. Soon after this, he got a visa to come to the United Kingdom, ostensibly on a business trip. He went to Istanbul by bus and flew from Istanbul to the United Kingdom without difficulty.[4]Despite some reservations, the Adjudicator broadly accepted the applicant's evidence, rejecting, however, his contention that he had been subjected to falaka. He found, however, that the two periods of detention did not cross the persecution threshold. He said at page 63 of the bundle:
"I appreciate that the Appellant may well be questioned at the airport upon his return. He will be able to travel on his own passport, but it has by now expired and this may give rise to some questions. The Turkish police records are efficient and it is likely that his two previous arrests will be shown on his record. However, beyond this fact I can see nothing which would actually lead the authorities to consider that they would have any interest in him. The Appellant has not demonstrated any separatist views. He has demonstrated interest in a legitimate party, which admittedly is still suspected by the authorities, but since the Appellant has been released on the two occasions without any problems, I do not see this being a difficulty for him."
[5]Mr Edward Grieves, who has appeared before me today on this oral application for the applicant, submits that the Adjudicator was in error with regard to his statement with regard to HADEP. HADEP was, he submits, not a legitimate party at that time, having been banned for a period of some nine months, a point which emerges from the judgment in the country guidance case of A, which is to be found at page 140 of the bundle. In particular, Mr Grieves refers to a passage in paragraph 6 of the determination, which reads:
"For now we consider that it is worth making the point that we are determining these appeals in this somewhat volatile context, and the particularly significant aspect of this, which again we shall deal with in more detail subsequently, is the recent outlawing of HADEP by the Constitutional Court."
[6]That, it seems to me, is the high point of Mr Grieves' submission that the Adjudicator here did make an error of law by an inaccurate assessment of the status of HADEP. He also submits that the Adjudicator did not refer to or have in mind, apparently, other risk factors referred to in the country guidance case, and also that there was evidence, not apparently rejected by the Adjudicator, that the authorities were looking for the applicant in early January.[7]One of the grounds of appeal to the Tribunal was put in these terms:
"The grounds argue that the Adjudicator was wrong to describe HADEP as a legitimate party and that he failed to consider all the factors in A."
[8]The Immigration Appeal Tribunal did not specifically deal with that point on the applicant's appeal. What the Tribunal did do was to refer in some detail to the situation, as they perceived it to be, on arrival at Istanbul airport. It is, it seems to me, arguable that what the Tribunal should have done was to identify the Adjudicator's error of law and then to reassess the case in the light of the true position, namely that HADEP was a banned party, and to consider the various risk factors adverted to in the most recent country guidance case, against that situation and the extent of the applicant's involvement with HADEP as it was found to be. That analysis was not carried and it seems to me arguable that in those circumstances the Tribunal was not able to carry out a complete and valid assessment of the true circumstances as they would face the applicant on returning to the airport. It seems to me, in those circumstances, that the internal flight alternative, upon which there was no appeal to the Adjudicator, itself has to be called into question and considered in the light of the true position on return to the country.[9]In these circumstances, I have come to the conclusion that there is a real, as opposed to a fanciful, prospect of success on an appeal in this case and, accordingly, I grant permission. In doing so, I do not wish to raise the hopes of the applicant, or appellant, as he now is, because it seems to me that there may very well be cogent answers to the points made by Mr Grieves. But at this stage, it seems to me appropriate that permission to appeal should be given. The Tribunal ought to be a three judge tribunal, one of whom may be a High Court judge. (Costs to be assessed.)