Yapici v Secretary of State for the Home Department [2005] EWCA Civ 826

[2005] EWCA Civ 826Case No C4/2004/2491/IATRF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE xMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 July 2005
Before
LORD JUSTICE WARDLORD JUSTICE LONGMORELORD JUSTICE SCOTT BAKER
Between
YapiciAppellantSecretary of State for the Home DepartmentRespondent
Mr M.S. Gill Q.C and Mr Basharat Ali (instructed by Sheikh and Co) for AppellantMr Andrew Sharland (instructed by Treasury Solicitor) for RespondentHearing Hearing dates: 13/14 June 2005
Judgment
[1]This is an appeal by Mehmet Yapici, aged 25, against the decision of the Immigration Appeal Tribunal dated 23 September 2004. They dismissed his asylum and human rights appeals that had in turn been rejected by an adjudicator in a decision promulgated on 27 August 2002.[2]The appellant is an Alevi Kurd from Adiyaman in South East Turkey. He left Turkey hidden in a lorry in May 2001 and claimed asylum following arrival in this country on 19 May 2001. His claim was refused by the Secretary of State on 24 September 2001 and directions were given for his removal as an illegal immigrant. On 13 August 2002 Mr L.V. Waumsley, an adjudicator, rejected his appeal on asylum and human rights grounds. On 10 October 2002 the Immigration Appeal Tribunal refused him permission to appeal against that decision. He made a successful application for leave to apply for judicial review and on 7 August 2003 the tribunal’s decision was quashed by consent. On 3 November 2003 the tribunal granted him permission to appeal and on 23 September 2004 his appeal was dismissed. Sedley LJ granted permission to appeal to this court on 16 January 2005, observing that the single viable question that appeared to have been overlooked by both the adjudicator and the tribunal was the fact that the appellant was only conditionally at liberty when he fled and was in breach of a reporting requirement.[3]The appellant’s account of events, which the adjudicator broadly accepted, was as follows. In 1993 he started to support HADEP, a pro-Kurdish political party. He attended meetings and demonstrations and during elections he canvassed for the party by distributing leaflets, putting up posters and so forth. On three occasions he was detained. The first was on 21 March 1998. He was walking towards the centre of Adiyaman City to join other HADEP supporters and celebrate Newroz, the traditional Kurdish New Year Festival. While doing so he was detained by the police and taken to the gendarme station where he was accused of participating in an illegal demonstration. He was badly ill-treated and detained for 10 days before being released without charge.[4]His second detention was precisely a year later on 21 March 1999 when he was with some friends at a cemetery commemorating Kurdish victims who had been killed by the Turkish authorities. The ceremony was raided by the gendarme. Again he was taken to the gendarme station and badly treated. This time he was released after 8 days because, he said, of lack of evidence.[5]During the following year, 2000, he received his call-up papers requiring him to report for military service. He did not wish to serve in the forces because he saw himself as a victim of Turkish opposition. He therefore left home and went into hiding with various friends and relatives.[6]Despite being wanted by the authorities he attended a May Day rally organised by HADEP on 1 May 2001. While he was there the demonstration was raided by the police. He, amongst other demonstrators, was detained. This time he was released after 5 days, but subject to a condition that he signed on every day while his case was being investigated.[7]At this point he decided to leave Turkey and his friends made the necessary arrangements for him to travel in a lorry to the United Kingdom. He told the adjudicator he feared return to Turkey `because he would continue to be persecuted for his Kurdish ethnicity and his support for HADEP. He also feared detention as a draft evader and that he would be compelled to perform military service against his conscientious objections.[8]The adjudicator first considered the risk to the appellant as a result of his support for (but not membership of) HADEP. The adjudicator accepted the appellant’s evidence about the three detentions and his ill-treatment during these detentions but noted that he was released without charge on each occasion, with the consequence that there were no outstanding charges against him in Turkey. So, the critical factors to the adjudicator’s mind were that the appellant was a mere supporter rather than a member of HADEP and that he was released without charge because the authorities had no further basis for detaining him. If returned to Turkey the position of the appellant would be likely to be no different from when he left that country.[9]The adjudicator then moved on to consider the appellant’s claim that on his return to Turkey he would be likely to be subjected on arrival to ill-treatment which would in itself amount to persecution. It should be kept in mind that the adjudicator heard this appeal in August 2002 i.e. some months before the decision in the case of Hayser v The Secretary of State for the Home Department [2002] UKIAT 07083 and subsequent country guidance cases.[10]The adjudicator assessed the situation in the light of the report of the United Kingdom Immigration and Nationality Directorate fact finding mission to Turkey noting that undocumented returnees are not generally subjected to any ill-treatment while being kept in custody and that the Turkish government now recognised that the overwhelming majority of Turkish Nationals who had applied for asylum overseas had done so for purely economic reasons and were of no interest to the Turkish government.[11]The adjudicator considered finally the appellant’s third basis of his appeal namely concern that he would be identified as a draft evader and compelled to perform military service contrary to his conscientious objections. The adjudicator found that the appellant did not have an objection to military service per se but only to serving in the armed forces of the Turkish State. He directed himself in accordance with the principles set out in Sepet and Bulbul v Secretary of State for the Home Department [2001] ImmAR 451 and, correctly, decided the evidence did not support the appellant’s contention that his concerns about serving in the military formed the basis for a valid asylum claim.[12]The human rights claim, in the circumstances, added nothing to the asylum claim and the appellant’s appeal to the adjudicator failed on both grounds.[13]The appellant’s main ground of appeal to the Immigration Appeal Tribunal was that the adjudicator had paid insufficient attention to what had happened to him in the past as an indicator of what was likely to or might happen to him in the future. He relied on Demirkaya v The Secretary of State for the Home Department [1999] INLR 441.[14]When the case came before the Immigration Appeal Tribunal the tribunal said that the only real challenge to the adjudicator’s assessment of the appellant’s experiences concerned whether he had given sufficient consideration to the fact that the appellant would be viewed as an absconder because he had breached the signing on condition when he was released after his arrest in May 2001. Before us reference was again made to Demirkaya and while it is true that the adjudicator nowhere made reference to it I am not persuaded that this assists the appellant. It seems to me, as it seemed to Sedley LJ when granting permission, that the one real point on the appeal is the adjudicator’s failure to deal with the fact that the appellant had absconded while required to report every day and the impact of that on his likely treatment by the authorities when he returned. Interestingly, in Hayser being subject to reporting conditions is identified as one of a number of factors liable to excite the suspicions of the Turkish authorities on return to the country.[15]The tribunal noted that the adjudicator failed to deal with this matter specifically but went on to say it was sufficiently clear from paragraphs 22-24 of his determination that he had considered it and that the most significant fact was that “the authorities had nevertheless chosen to release him.” Also, there was no evidence of any follow up by the authorities. His family still lived in Turkey; he did not claim to have ceased contact with them and there was nothing unsustainable about the adjudicator’s decision not to treat the reporting conditions as decisive. It is, however, in my judgment not so much that the adjudicator decided not to treat them as decisive as whether he treated them as of any materiality at all.[16]The complete text of paragraphs 22-24 of the adjudicator’s determination is as follows:
“22. However, I take account of the fact that, on his own evidence, the appellant has never actually been a member of HADEP. He was only a supporter who was detained on a handful of occasions whilst attending events at which confrontation with the police was likely to happen. Nevertheless, despite his detention, the appellant was released each time without charge after a relatively short period. 23. It is clear from this that the Turkish authorities had no further basis for detaining him, otherwise he would not have been released in that way after such short periods. That was the situation when the appellant left Turkey a little over a year ago in May 2001. I am satisfied that, save in relation to the issue of draft evasion (which I shall deal with in further detail below), the situation would be likely to be the same if the appellant were to be returned to Turkey now. 24. Whilst it is clearly unsatisfactory that members or supporters of a legal political party should not be allowed to express their political opinions in a non-violent way without the risk of detention and violence at the hands of the Turkish police, nevertheless I do not consider that the appellant’s support for HADEP would, if continued following his return, be such as to expose him to a well founded fear of persecution as a result. The first main ground on which the appellant seeks to rely therefore provided no basis for a valid asylum claim.”
[17]In my view these paragraphs do not make clear that the adjudicator had taken into account the appellant’s conditional release. The adjudicator treats the appellant’s release as evidence that the authorities had no further basis for detaining him. Whilst that may have been true at the moment at which he was released, why was he only conditionally at liberty? What was likely to happen when the authorities enquiries were complete? And what was the effect of a HADEP sympathiser breaking the condition imposed by the authority? True it is that it is a point in the respondent’s favour that there was no evidence to show the appellant was being pursued on account of his breach of the reporting condition. But the authority’s attitude may be rather different if his breach becomes apparent when he presents himself on return at Istanbul Airport. In my judgment the adjudicator ought to have considered these questions and decided what materiality they had, if any, to the risk to him on return. The tribunal appears to have regarded as determinative:• a release on each occasion after just a few days detention;• the lack of outstanding charges;• support for, rather than membership, of HADEP;• all the arrests being on occasions where confrontation with the police were likely to occur;• lack of follow up when the appellant did not report daily.[18]In my judgment the adjudicator left one important ingredient out of the risk assessment exercise. On his return to Turkey the appellant will be returning as an Alevi Kurd who is a supporter of HADEP and has been detained on three occasions. Also, he left in breach of a condition to report daily while his case was being investigated. Daily reporting suggests the authorities were interested in keeping tabs on him. He will be returning to Turkey as a failed asylum seeker and also a draft evader. Bearing in mind the serious ill-treatment to which he had been subjected in the past, it seems to me that it was a defect in the adjudicator’s analysis not to consider the implication of the fact that the appellant broke the condition of his release by failing to continue to report daily to the authorities. The adjudicator should in my judgment have looked at the case in the round and taken into account this important ingredient.[19]In my judgment the test propounded by Laws LJ in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56 that the process of reasoning and application of the relevant law (see paragraph 44) required the tribunal to take a different view was met. The defect in the tribunal’s judgment is in effect the same as that of the adjudicator. They too failed to have regard to the true impact of the appellant’s departure in breach of the reporting conditions. The adjudicator’s approach to assessment of risk was erroneous; a matter that the tribunal has failed to appreciate. I would allow the appeal and remit the case to what is now the Asylum and Immigration Tribunal where the case can be reconsidered in the light of all the up to date material. The sole ground for allowing the appeal is failure to give due consideration to the appellant’s breach of the reporting condition. In practical terms there is no material distinction between the appellant’s human rights and asylum claims for the purposes of this appeal.

Lord Justice Longmore: I agree.

Lord Justice Ward: I agree.