Becerikli v Secretary of State for the Home Department [2006] EWCA Civ 693

Case No C5/2006/0254[2006] EWCA Civ 693
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(AIT NO.AS/11744/2004)
Venue Royal Courts of JusticeDate Tuesday, 9 th May 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE
Between
BECERIKLIAppellant- v -
Between
THE 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)
MRS S PANAGIOTOPOULOU (instructed by Messrs Sheikh & Co) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE BROOKE:

[1]This is a renewed application for permission to appeal from a decision by an immigration judge on 28 November 2005 on a reconsideration. The immigration judge dismissed the appellant’s appeals on both human rights and asylum grounds. The appellant is a Turkish Kurd, who is now 31. He came to this country about April 2004 and on 11 June 2004, he was refused leave to enter. The effect of the immigration judge’s findings was that the appellant was stopped and sometimes detained for short periods. He received some ill-treatment before coming to this country, but it did not amount to persecution or serious ill-treatment.[2]The immigration judge gave his reasons for this conclusion. Although the appellant had been arrested and detained six times in 15 years, most of the detentions were for up to two days and only once, in 1992, had he been detained for a week. He had not been ill-treated on the last two occasions in 1999 or 2001. The last time he was beaten the immigration judge thought was in 1993, although the appellant had given a confused answer about being beaten with batons in 2002. Even if he had been ill-treated then, that was the only occasion in 12 years and the immigration judge commented that this was not the sort of ill-treatment which was sometimes complained of in Turkish cases, and more seriously, that there was no evidence he ever required medical treatment.[3]It was then said that the appellant would not have accompanied a journalist to the home of a dead PPK guerrilla if he had thought he was being watched by the authorities. He had visited that house in daytime, which suggested that he felt he had nothing to fear. He was apparently stopped following this visit and if the authorities had any real interest in him, he believed he would have been detained. The fact that he was let off with a warning suggested that the authorities did not think he presented any challenge despite his family connections. Because he had been asked to become an informer, the authorities did not regard him as being so committed to one of the opposition groups that he would not help them.[4]The immigration judge thought that the appellant had exaggerated. He did not regard the authorities as having made him a serious threat if he was not willing to help them. There was a letter from an aunt which was called in aid, but the immigration judge felt that that letter betrayed no sign that the appellant might face difficulties because of his past political involvement and the immigration judge did not believe the authorities had been looking for the appellant recently, as he alleged.[5]He said that on return, the appellant was likely to be subject to some questioning but he did not believe he would be handed over to the anti-terrorist unit of the police. He would not be regarded as a PKK suspect. Reliance was placed on the decision in MS Turkey UKIAT 00192 which suggested that the vast majority of detentions of political detainees went completely unrecorded by anybody. The appellant had never been charged or prosecuted for any offence and the immigration judge considered on balance that there would be no record of his having been detained.[6]Even if on arrival he had been subjected to in-depth questioning, the evidence before the authorities would be to the effect that he had never been pursued as someone who was of any significance. The immigration judge therefore believed that he would be allowed to enter Turkey without any real difficulty. He could choose to return to his home area. He noted that relatives who were still involved in HADEP continued to reside there, including his grandfather, but if he wished to get away from this environment, he could reside elsewhere and in that case he would be less likely to encounter any problems at all. The immigration judge did not, however, accept that he would suffer serious ill-treatment wherever he was residing in the country.[7]The appeal is brought forward on three grounds. The first is an attack on the immigration judge’s findings of fact. The grounds are set out in paragraphs 11 to 14 of the grounds of appeal and have been pressed on me in counsel’s able submissions today. In my judgment, this is exactly the kind of case which this court had under consideration in R: Iran when it said that it was not likely to be in the business of entertaining appeals in relation to the assessment by a specialist tribunal of the risk faced in areas such as Kurdish Turkey. It was very much specialist stuff and the immigration judge reached findings of fact to which he was entitled to come on the evidence and I would not grant permission to appeal on those grounds.[8]Ground two is very much more substantial. At the time of the hearing before the immigration judge, there was a recent country guidance case called IK Turkey CG [2004] UKIAT 00312 which was published on 2 December 2004. I was told that both parties referred the immigration judge to different aspects of the decision in IK Turkey, which contains authoritative guidance on the way that immigration judges should consider cases in which it is said that it is unsafe for an appellant to return to Turkey.[9]In particular, the IAT re-stated the potential risk factors which had been set out by the IAT in its earlier decision in A (Turkey), and in paragraph 14 of the determination in IK these risk factors are set out. Later on in the determination in IK, the tribunal described the way in which records are accessed when somebody returns to Turkey. In paragraph 78 the tribunal said this:
“We consider that the starting point in any enquiry into risk on return should normally begin not with the airport on return, but with whether the claimant would be at any real risk of persecution or breach of article 3 in his home area as a consequence of his material history there. If the answer to that is no, then the claim cannot normally succeed unless of course the risk arises from or is aggravated by other factors, such as his material activities abroad or in other parts of Turkey.”
[10]When I refused permission to appeal on paper, I referred to that paragraph. What is said by counsel today is that the soundness of that approach depends on the quality of the decision which is made, and on this occasion, in addition to failing to refer to the determination in IK or to structure his judgment around it, the immigration judge did not consider one by one the potential risk factors set out in A Turkey. They include, in particular, whether the appellant has family connections with a separatist organisation such as KADEK or HADEP or DEHAP; whether the appellant became an informer or was asked to become one; whether the appellant has ever been arrested or detained and, if so, in what circumstances.[11]In this context, counsel refers to the finding in IK that the Turkish authorities do in general seek and collate quite detailed information about people they consider to be of adverse interest to them. That information will be the greatest in the area where they lived, and there is evidence that unofficial detentions are recorded locally.[12]In the grounds of appeal, reference is made to the members of the appellant’s family who do not really feature in the immigration judge’s determination. Given that the failure to take into account a country guidance case is capable of amounting to a error of law, so long as the failure is material, I consider that it is reasonably arguable that the failure on this occasion was reasonably material and accordingly, I am willing to grant permission to appeal on ground two.[13]I say nothing about ground three, which related to an internal flight alternative, because counsel accepted that if she won on ground two, that would fall away, and if she lost on ground two, that again would fall away.[14]In all the circumstances, I do regard this as a case which is appropriate to grant permission to appeal. It may be that when Treasury Solicitor has considered this judgment, a view may be taken that it would be better to have the matter remitted by consent to an immigration judge for a further hearing in which he can direct himself properly in accordance with the guidance given in IK, adopting the risk factors in A Turkey without going to the full length of a substantive appeal hearing in the Court of Appeal. But that is very much a matter for the future.[15]For the present, I would grant permission to appeal directed to be heard before a court that could include a High Court judge, but must include one Lord Justice with asylum expertise, and the hearing is likely to last three hours.

Order

Application granted.