A v Secretary of State for the Home Department [2006] EWCA Civ 422

Case No C4/2005/0175[2006] EWCA Civ 422
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
(AIT NO.HX/40161/2001)
Venue Royal Courts of JusticeDate Monday, 27 th March 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE CHADWICK
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
Between
AAppellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR E GRIEVES (instructed by Messrs Howe & Co, London W5 2BS) appeared for Appellant.MR S GRODINSKI (instructed by The Treasury Solicitor, London WC2B 4TS) appeared for Respondent.
J U D G M E N T

LORD JUSTICE SEDLEY:

[1]The appellant is a Turkish Kurd in his 30s who fled to this country at the end of a long, albeit intermittent, history of detention and interrogation under torture by the Turkish security services. He is a member of HADEP, a political party which was banned as being a political wing of a separatist movement, the PKK. He has become psychologically disturbed at least partially as a result of his experiences.[2]Following the Home Secretary’s refusal of asylum and after its remission by the IAT for a fresh determination, his appeal was allowed both on asylum and on article 3 grounds by an adjudicator, Ms C J Wright, in November 2002. At that date, by virtue of paragraph 22 of schedule 4 to the Immigration and Asylum Act 1999, appeal lay from an adjudicator both on law and on fact. The Home Secretary sought and obtained leave to appeal to the IAT on grounds which can be summarised as recanvassing the current security situation affecting the Kurds, querying the consequence risk to the appellant personally, mentioning the availability of medical services in Turkey, questioning the appellant’s links to HADEP and the relevance of police visits to his parents, and finally contending, without any specificity, that not all the risk factors identified in the case of Polat had been addressed by the adjudicator.[3]The IAT, Mr A Jordan, vice-president, Mr G H Getlevog and Mr J B Wilson, in November 2004 allowed the appeal, essentially on the ground that the adjudicator’s conclusion that the appellant was at risk of persecution and torture as a perceived separatist was not sustainable on the evidence. Shortly before the date of the IAT hearing, 27 October 2004, four days of argument had been concluded in a case designed to act as a factual precedent for the risks facing Turkish returnees IK (Returnees – Records – IFA) Turkey [2004] UKIAT 00312*. Two of the vice-presidents had sat with a third member and the case had been argued by experienced counsel on both sides. The present appellant’s solicitor asked the IAT to adjourn until the decision in IK was promulgated. His reason was that a number of concessions had been made in that appeal by the Home Secretary, but the IAT said:
“At the moment we are not satisfied as to the nature and extent of those concessions. In any event we do not consider that they are material to the outcome of the present appeal.”
They refused to adjourn.[4]This refusal was the first ground of appeal before us. I am bound to say that if anything still turned on it, I would need to be persuaded that the IAT’s reasons for refusing to wait a short while to see what IK decided were tenable. But the outcome of this issue taken by itself could only be remission to what is now the AIT, and as Sam Grodinski, for the Home Secretary, concedes that remission is required in any event because of the IAT’s failure in reaching its own decision to take into account, among other things, the evidence that the police knew that the appellant was an active member of HADEP. On any such remission, not only IK but any further data about the practices of the Turkish security services would be admissible, so that any harm done by the refusal to adjourn would be cured.[5]However, Mr Grieves for the appellant is not satisfied with remission. He contends that the IAT, having foregone the assistance which an adjournment would have afforded, had no right to substitute their view for that of the adjudicator. The grounds of appeal, he says, advanced none of the reasons which in the event commended themselves to the tribunal and in any event their critique and findings were not such as to entitle them to interfere. This court is accordingly invited to allow the appeal outright and to restore the adjudicator’s decision.[6]These were the adjudicator’s findings at paragraph 14: “(a) I accept that the appellant is a Turkish Kurd, I accept that his family have been involved in political activity for many years, and I accept that when the appellant was younger he witnessed his brother and father being arrested and detained on regular occasions. I accept that in the 1980s the appellant’s family were forced to flee their village, there is support in the objective evidence for the description given by the appellant that their village was set on fire by gendarmes in an attempt to evacuate the village of Kurdish people whom the authorities believed were supporting the PKK. (b) I accept that the appellant was politically active, probably the whole time that he lived in Turkey. I accept that the appellant’s home was searched on a regular basis by the police, and that in 1989 the appellant experienced himself his first detention after he attended a Newroz celebration. I accept over the next few years the appellant was detained on four occasions, on each occasion the appellant was interrogated about his support of the PKK, the fact that he was Kurdish and he was asked for information about other political activists. I accept the appellant was tortured, he was subjected to falaka, he was also beaten with truncheons and fists. I accept that after his first detention, and before the appellant was released his fingerprints and photograph were taken and he was threatened. I accept that the appellant was detained again in 1992, in 1994, and the most recent occasion was in October 2000. The most recent occasion was the most serious in the sense that the appellant had attended a rally organised by HADEP, he was arrested during the course of the rally, he was taken to a security headquarters, he was subjected to falaka, he was also beaten and hit. I accept on this occasion before the appellant was released after a few days he was told by the police he would be killed if he was found again. I accept the appellant took this threat more seriously than previously, and in those circumstances he arranged to leave Turkey shortly afterwards. (c) I accept that the appellant carried out his compulsory military service between 1990-19991. It appears that the appellant had a very difficult time whilst he was completing his military service, and although there are few details about what happened to him it may well be that he was sent outside Turkey to fight on behalf of the country in the Gulf War. The appellant has suffered from psychological and psychiatric difficulties since he completed his military service. That is apparent from both his sister’s evidence as well as the psychiatric report which I have summarised above. I have no reason to doubt the content of the psychiatric report, nor indeed the evidence given by the appellant’s sister both in her witness statement and in her evidence before me. I accept the appellant was detained on two occasions after he completed his military service in 1992 and 2994, and in 1994 the appellant’s sister was also present when the appellant was arrested and detained. I do not consider the points made by the Secretary of State in relation to the detention in 1992 to be particularly valid in the sense that the appellant had Kurdish cassettes in his home which were impounded, although the appellant himself chose to speak Turkish in his asylum interview. It is apparent the appellant has learnt Turkish, and indeed he was forbidden to speak Kurdish, whilst he remained living in Turkey. (d) I accept on each occasion when the appellant was detained he was eventually released without any charge. I place no particular reliance upon this, given that I accept the appellant’s evidence that he was known to the police previously, and that he effectively had a record of being detained. In those circumstances I have to look at the objective evidence in relation to return of those who are perceived to be supporters of the separatist cause. In relation to the Tribunal decision of Marasli, I have taken note of the Tribunal’s findings that on that occasion there were four instances of detention each of which resulted in considerable maltreatment. The Tribunal also found that failed asylum seekers are likely to be stopped and questioned at the airport upon their return. The Turkish authorities have a computerised system which informs them as to whether or not any such returnee will have been detained and questioned in connection with terrorist activity. The evidence in that case suggested as the appellant had been detained on four occasions there was more than a reasonable likelihood he would be on the authorities’ computer records. The Tribunal referred to the Amnesty Report and the US State Department Report. The Home Office had not been able to produce any evidence to indicate that the circumstances of the leader of the PKK, in relation to his arrest, trial and sentence have resulted in a cessation of the activities of the PKK or more importantly any relaxation by the Turkish authorities over attitudes towards suspected members of the PKK or those who are returned to Turkey as failed asylum seekers. In the Tribunal decision of Salt the Tribunal reviewed the evidence in relation to returnees to Turkey, and the fact that any returned asylum seeker should be judged on his own merits taking into account the specific circumstances surrounding each case. (e) The CIPU Report in relation to Turkey has a section on the treatment of returned asylum seekers. There is no organisation or government that consistently and formally monitors the treatment of returnees to Turkey. The only way incidents of mistreatment are brought to notice is if the person him or herself notifies human rights organizations, press, embassies and so on. In principle, the Turkish police can question any deported citizen upon their arrival at the airport. The interrogation aims to establish the identity of the individual and also to check whether they have been implicated in any common law case. In general there is no follow up unless the individual is the subject of legal proceedings. However, and more importantly, if the returnee is known to the police for whatever reason he is possibly taken into custody for more interviews. Amnesty International have taken the view that while it is true most asylum seekers or returnees are released after reaching interview, there have been an increasing number of cases where returned asylum seekers were picked up later by unknown men and beaten up or arrested by the police and taken into police custody. The mistreatment is carried out in order to obtain confessions from suspected persons. In general rejected asylum seekers returning to Turkey do not risk persecution. However, returnees without documents will be questioned. This is likely to be an in depth questioning by the Turkish Border Police and is to be distinguished from the routine identity check on arrival. As a rule the questions refer to personal data, date of and reason for departing Turkey, possible criminal record and contacts with illegal Turkish organisations abroad. In some cases further enquiries are made by other officers in order to find out if the returnee is liable to prosecution for a criminal offence. The enquiry can take from several hours to several days during which time the returnee will be kept in custody. Currently available information indicates that undocumented returnees are generally not being maltreated while being kept in custody. However, ill treatment cannot be ruled out in cases where returnees are suspected separatists. The Report goes on to state that being of Kurdish origin does not in itself constitute a high risk of inhuman treatment. Everything depends on the individual and his activities in Turkey and abroad. PKK activists and sympathisers who are thought to be of great interest to the Turkish authorities risk being insulted, threatened, maltreated or tortured during the questioning process. (f) I have to bear in mind, in accepting the psychiatric report, that this appellant is a vulnerable individual who clearly has suffered from psychiatric problems for some years. This appellant would be an undocumented returnee if he were returned to Turkey. This appellant has been detained on four occasions as a result of the authorities’ perception that he has been involved in separatist activities and political acts. Although the appellant has been released on each occasion without charge, he clearly has a police record, and he has been perceived in the past as a separatist. I consider this appellant to be at risk, particularly in relation to his psychiatric condition and the fact that he is prone to becoming violent, particularly in situations of stress. I take note of the appellant’s sister’s evidence which is that her parents are still visited by the Turkish authorities, and they are still perceived to be political activists. I consider in those circumstances this appellant must be at risk in being returned to Turkey, at this time. The risk is in relation to the authorities’ perception that he has been involved in separatist political activity in the past, that he has been detained in the past, and that he has also been subjected to torture, therefore he would be particularly fearful of that occurring in the future. The appellant says he has made no admissions in relation to his activities, but clearly he has been documented in the past and there is no reason to believe the authorities will not have continued to keep up records in relation to this appellant’s history. In all the circumstances I consider this appellant is at risk of persecution for a Convention reason if he is returned to Turkey at the present time. The Convention reason is in relation to his imputed, and actual, political opinion, and the risk of persecution is in relation to the interrogation that he will undoubtedly undergo if he is returned. I also accept, in the circumstances, that the appellant is at risk of being subjected to torture or other inhuman or degrading treatment in a similar way to that he has endured in the past. I do not consider it is necessary to go on to adjudicate on the other human rights claims made by the appellant, although I bear in mind that other than Article 2 they are qualified human rights and therefore the appellant would not necessarily succeed on these matters alone”.[7]If, as the adjudicator found, the appellant had been detained and interrogated under torture on four separate occasions over 11 years in an endeavour to extract information about separatist activity, it is not difficult to see why she regarded him as “a perceived supporter of the separatist cause” or why, since his photograph and fingerprints had been kept, she considered it likely that he was now on the authority’s computerised records. Nor is it difficult to see why, given the institutional history of torture in Turkey and the tenuousness of recent indications of its reduction, she took him to be at risk if he were returned.[8]The IAT, nevertheless, took a different view. Having looked at the CIPU report which had been before the adjudicator, they concluded that: “The Turkish government now recognises that the overwhelming majority of Turkish nationals who have applied for asylum overseas have done so purely for economic reasons”, and so are of no interest as returnees. This may be true, but it fails to address the situation of the appellant, who had not come here as an economic migrant and who, on the adjudicator’s findings, would be identified as a separatist suspect.[9]The IAT, however, go on to consider recent in-county material about the risks facing both documented and undocumented returnees. In passing, one has to say that it emphasises how much would have been gained by waiting for the decision in IK. The upshot was contradictory. One source quoted by the IAT indicated that even those with temporary travel documents were likely to be detained for enquiries at the point of entry “if the GPTS computer records reveal information regarded as relevant”. Another indicated that questioning about the reasons for returnees’ asylum applications was routine. A third, however, indicated that persons returning without a permanent or emergency travel document – and the IAT went on to place the appellant in this category – “would not be likely to be given … in-depth questioning”. Again in passing, I record my unhappiness at the IAT’s use of euphemisms like “in-depth questioning” and “robust interrogation” in relation to the known practices of the Turkish police and security services.[10]The IAT went on to reach the following conclusions: “16. In paragraph 14(d) of the determination the adjudicator then set out the basis upon which she reached her eventual conclusion that the claimant was at risk on return. She accepted that the claimant was detained and was eventually released without charge. She place no particular reliance upon that given that she accepted the claimant’s evidence that he was known to the police previously and that he effectively had a record of being detained. It is not clear from the determination as to the nature of the record here referred to. Thereafter the adjudicator went on to say, ‘In those circumstances I have to look at the objective evidence in relation to return of those who are perceived to be supporters of the separatist cause’. It seems to us that what the adjudicator was there doing was saying that, as a result of the occasions when the claimant had been detained, he was to be perceived as a supporter of the separatist cause. Mr Saldanha who appears on behalf of the clamant referred to a statement that was prepared by the claimant in which he stated that throughout his detentions he was questioned about the PKK as well as HADEP and that the Turkish authorities accused him of being a member and persecuted him because of his HADEP membership. However, it is made clear that the claimant never gave information about his links with the PKK: ‘I could have helped the police and led them to certain PKK members that I knew but I told them that I did not have any information’. The adjudicator also records the fact that the appellant made no admissions during the course of his arrests.17. In those circumstances it seems to us the adjudicator’s finding that the claimant was perceived to be a supporter of the separatist cause is not sustainable. The evidence that was before her was that the latest and most serious arrest had involved a demonstration in relation to prison conditions in the F type prisons. Of course, some of those who were involved may have been separatists or PKK activists or members of HADEP. It was clear that not all were so involved and there was no reason to suggest that the claimant himself was perceived to be a separatist merely by participating in a demonstration attended by many about prison conditions. In relation to his other arrests those were all similarly devoid of any significant evidence that he was deemed to be a separatist. It was clear that he was questioned about whether he was a separatist. He denied that. In those circumstances we are not satisfied that the adjudicator was able to reach the conclusion that the appellant was ever perceived to be a separatist, far less a terrorist. Indeed had the clamant been considered to fall into that category, we doubt that he would have been released in the circumstances that he describes. Furthermore, there is no credible evidence that the authorities had any material with which they could charge him with separatist activities.18. The adjudicator then went on to say: ‘The Turkish authorities have a computerised system which informs them as to whether or not any such returnee will have been detained and questioned in connection with terrorist activity. The evidence in that case suggested as the claimant had been detained on four occasions there was more than a reasonable likelihood that he would be on the authorities’ computer record.’ This appears to have been a conclusion of the clamant reached on the basis of the Tribunal decision in Marasli. We were not provided with a copy of that determination and the background material which we have referred to does not establish that the nature of the detentions going back to 1989 that the claimant experienced were recorded as the adjudicator found.19. The adjudicator then went on to say, in paragraph 14(e), that in general rejected asylum seekers returning to Turkey do not risk persecution. However, returnees without documents will be questioned. She described this as likely to be an in-depth questioning by the Turkish border police and was to be distinguished from the routine identity check on arrival. Referring to the information in the CIPU report she spoke of the questions referring to personal data, date and reason for departing Turkey, possible criminal record and contacts with illegal Turkish organisations abroad. It is apparent that the adjudicator assumed that the claimant would be returning as an undocumented returnee. See also paragraph 14(f). In our judgment that is not supported by the background material that was before her and, in particular, paragraph 5.82 of the Country Assessment of April 2002 (see above) which deals specifically with the availability of travel documents for those returning to Turkey. Indeed, as a matter of common sense, we do not consider that the Secretary of State would return somebody who was entirely undocumented to Turkey because it could not reasonably be expected that he would be allowed to enter. Accordingly, there would have to be arrangements made with the Turkish authorities to provide either the one-way temporary travel document or, if the claimant himself chose to apply, a passport. If the claimant in this case were to apply for a passport the account that he has already given about his arrests would not in our judgment either prevent him obtaining a passport or create the reasonable risk that the claimant would be seen as a separatist or a terrorist.20. The adjudicator properly took into account the psychiatric condition of the claimant. She considered that he was a vulnerable individual and she therefore considered him to be particularly at risk. In paragraph 14(f) the adjudicator said: ‘Although the appellant has been released on each occasion without charge, he clearly has a police record, and he has been perceived in the past as a separatist. I consider this appellant to be at risk, particularly in relation to his psychiatric condition and the fact that he is prone to becoming violent, particularly in situations of stress … I consider in those circumstances this appellant must be at risk in being returned to Turkey at this time’.21. In our judgment that conclusion is not sustainable. The claimant has been questioned about being a separatist but there is no credible evidence provided by the claimant or elsewhere that he will be either treated or perceived to be a separatist far less than he would be deemed to be treated as a terrorist. In our judgment looking at the history of the claimant’s arrests, three of those arrests took place between 1989 and 1992 or perhaps 1994. They were arrests that took place many years ago. The most significant arrest that took place in 2000 was a result of his attending a single demonstration organised by HADEP. He did not organise the demonstration. He was arrested in the process of the relatively random arrests during the course of the disturbances. Thereafter he was questioned about his separatist activities and provided no information to support any charges on those matters. In our judgment therefore he can only be seen as a demonstrator. These circumstances do not, in our judgment, permit the adjudicator to approach the case as if he were deemed (and would be deemed in future) to be a separatist. The adjudicator was accordingly in error.22. We are satisfied, having looked at the material that was before the adjudicator as well as the rather more recent material, that the adjudicator’s conclusion is not sustainable and that the claimant has not established that the evidence accepted by the adjudicator establishes a reasonable likelihood that, on return to Turkey, he will suffer persecution or a violation of his Article 3 rights.” ‘In those circumstances I have to look at the objective evidence in relation to return of those who are perceived to be supporters of the separatist cause’. ‘I could have helped the police and led them to certain PKK members that I knew but I told them that I did not have any information’. ‘The Turkish authorities have a computerised system which informs them as to whether or not any such returnee will have been detained and questioned in connection with terrorist activity. The evidence in that case suggested as the claimant had been detained on four occasions there was more than a reasonable likelihood that he would be on the authorities’ computer record.’ ‘Although the appellant has been released on each occasion without charge, he clearly has a police record, and he has been perceived in the past as a separatist. I consider this appellant to be at risk, particularly in relation to his psychiatric condition and the fact that he is prone to becoming violent, particularly in situations of stress … I consider in those circumstances this appellant must be at risk in being returned to Turkey at this time’.[11]In the years when appeal lay on fact as well as on law to the IAT, it is perhaps unsurprising that not a great deal of attention was paid to the grounds of appeal once leave had been given. Grounds tended, as Mr Grodinski has reminded us, to be widely cast, and the practice was to take the adjudicator’s primary findings, notably as to credibility, as given, but to be prepared to review the factual inferences or conclusions drawn from them. No decided case appears to have laid down the law now laid down in Miftari [2005] EWCA Civ 481, that appeals are restricted to the issues on which permission to appeal has been given. But the power to interfere was not at large. This court, per Laws LJ, made it clear in Subesh [2004] EWCA Civ 56 that an appeal could succeed only where “there are objective grounds upon which the court ought to conclude that a different view is the right one”, in the sense not that the IAT “might prefer a different view” but that “the process of reasoning and the application of the relevant law require it to adopt a different view”. Was this such a case?[12]Mr Grieves is entitled to make the point he does in his skeleton argument (we have not found it necessary to call upon him orally) that the IAT’s eventual reasons for oversetting the adjudicator bear little or no perceptible relationship to the grounds upon which leave was obtained by the Home Secretary. But I do not think that at this point of history we can import into the former appellate jurisdiction the discipline which the present jurisdiction calls for. For my part, at least on the present argument, I would not be prepared to hold that the issues addressed by the IAT were not open to them.[13]Mr Grodinski submits that on two points the notice of appeal to the IAT was upheld by that tribunal. The two points were put thus:
“3. … The appellant’s last detention was as a result of an arrest during a rally organised by HADEP (para 14b) when ‘police arrived to disburse the crowds’ (para 2h). The appellant was not specifically targeted and was released without charge after being held for five days. There is nothing in the medical report to specifically support allegations of torture ‘worse than previously’ during this detention.” “7. The Secretary of State also relies on the case of Polat 2002 UKIAT 04332 para 29 which sets out a number of factors which should be considered when assessing real risk of persecution and it is submitted that the adjudicator has not considered all the factors required to support their conclusions.”
With respect, I disagree. The point in paragraph 3 of the notice of appeal is simply a partial recital of evidence which was considered in its totality by the adjudicator. It forms part of a different evaluation of the facts from that urged by the Home Secretary. Paragraph 7 of the grounds is so vague as to be meaningless. I do not therefore think Mr Grodinski can legitimately say that in any meaningful respect the Home Secretary’s grounds of appeal to the IAT were upheld. What he nevertheless relies on is the adjudicator’s failure, as he submits it is, to grapple with the passage of six years between 1994 and 2000 without the appellant’s being detained and tortured, and the fact that his detention in the year 2000, which precipitated his flight to this country, had not been a targeted detention but detention as part of a group arrest of demonstrators at a HADEP rally.[14]The outcome of the IAT’s reconsideration of the case was that, albeit upholding none of the Home Secretary’s grounds, they overset the adjudicator’s determination on the critical issue of risk. Mr Grodinski’s concession that the case must on any view go back to the IAT derives from his recognition that the IAT, in doing this, overlooked or misapprehended potentially determinative facts. He identifies as a particular oversight the appellant’s own evidence, accepted by the adjudicator, that the police knew that he was an active HADEP member, suspected him of having PKK links and had repeatedly questioned him – under torture that is – about them. The IAT’s holding that the appellant’s arrests were “devoid of any significant evidence that he was deemed to be a separatist” can plainly not stand in the light of this. The mistake is arguably compounded by the absence of any express recognition of the limits set by Subesh on the tribunal’s power to interfere with a determination with which they found themselves in disagreement; although in fairness to the tribunal, its use of the criterion of sustainability might suggest a broadly similar standard.[15]In such a situation Mr Grodinski could not and does not suggest that the appellate decision was founded on a satisfactory re-appraisal of the evidence tested to the correct standard. What he urges is that the IAT on a proper approach was not bound to dismiss the appeal and might legitimately have reached the conclusion it did; hence his argument in favour of remission, his reason, as developed today, being that the adjudicator can be seen to have overlooked the significance of the two matters to which I have referred. But when one returns to the adjudicator’s reasoning, one finds that within sub-paragraph (f) of paragraph 14, which I have already set out, both matters are mentioned and form part not only of the history and analysis but of the synthesis which the adjudicator arrives at in coming to a conclusion on risk.[16]For these reasons, I do not think that remission is in this case an admissible solution. I recognise, of course, that in other cases remission will be the only just, or the least unjust, outcome. But here the appeal came to the IAT on grounds which disclosed only disagreements on fact, none of which was made out. Instead the IAT made its own re-appraisal of the case on a flawed basis of fact and a doubtful basis of law. Mr Grodinski’s brave attempt today to construct a yet further basis for oversetting the adjudicator’s decision does not stand up, for reasons I have given.[17]The upshot is that the Home Secretary’s appeal to the IAT had failed and that the IAT’s distinct grounds for oversetting the adjudicator cannot be sustained. The public and private interest in the finality of legal process speaks against any prolongation of these proceedings and, in particular, against allowing the respondent yet another attempt to secure a decision which has so far eluded him and which there is no reason of fact or law to believe that he will obtain.[18]I would therefore allow the appeal and restore the determination of the adjudicator.

LADY JUSTICE ARDEN: I agree.

LORD JUSTICE CHADWICK: I also agree.

Order

Appeal allowed.