“28. Ms Ahmed could not say very much about the decision that the claimant is not a danger to the community. The point is made in the grounds and the fact remains the claimant’s offence, appalling as it was, was an isolated incident. It arose from a particular set of facts and has not been repeated. I appreciate it is not the same test but it is relevant that [it] satisfied the Parole Board that he should have been released; that certainly does not follow automatically after the completion of the twelve years’ minimum term. 29. I can find no fault in the decision that the claimant has discharged the burden of dispelling the inference that he is a danger to the community. The judge’s finding is based on little from the claimant himself except his ability to keep out of trouble. The judge gave weight to the probation officer’s opinion that the claimant would re-establish himself in the community and although it may have been possible to resolve the point differently the judge was entitled to resolve it as she did for the reasons she did.”
“1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
“So far as “danger to the community” is concerned, the danger must be real, but if a person is convicted of a particularly serious crime, and there is a real risk of its repetition, he is likely to constitute a danger to the community.”
“38. I have carefully weighed up the evidence in the round, in reaching a conclusion as to whether the appellant has rebutted the presumption as to whether he constitutes a danger to the community of the United Kingdom. I find that he has rebutted the presumption, taking account of the following: a) The appellant has a conviction for one offence. Whilst there is no doubt that murder is an extremely serious offence, he has no other history of offending. b) The appellant was released from prison in August 2018, a period of over four years as of the date of hearing. Since release, he has not reoffended and is fully engaging with the Probation Service. He is assessed by the Probation Service as presenting a low risk of committing a further offence. c) The appellant undertook rehabilitative courses whilst in prison to address his offending. Further, since his release, he attends monthly supervision sessions with his Probation Officer. Further, the appellant has learned techniques so as to control his emotions. d) Whilst the Parole Board assessed the appellant as posing a medium – high risk of serious harm to intimate partners, this has been downgraded by the Probation Service as a risk of medium. Further, this assessment was based on his offending behaviour. 39. For the reasons given above, notwithstanding the seriousness of the appellant’s offending, I am satisfied that he has rebutted the presumption. It follows therefore that he remains protected from refoulment.”
“A risk of 17% re-offending over a 2-year period is not, in my judgment, in the context of a deportation case a matter which can be treated as insignificant. It is a good reason for supporting a decision to deport.”
“40. … The great value of the guidance is that it invests the decision-making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator's ability to make the findings which he conscientiously believes to be right. It therefore admirably fulfils its intended purpose.”
“(1) The first adjudicator’s determination should always be the starting-point. It is the authoritative assessment of the appellant’s status at the time it was made. In principle, issues such as whether the appellant was properly represented, or whether he gave evidence, are irrelevant to this. (2) Facts happening since the first adjudicator’s determination can always be taken into account by the second adjudicator. (3) Facts happening before the first adjudicator’s determination but having no relevance to the issues before him can always be taken into account by the second adjudicator. (4) Facts personal to the appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection. (5) Evidence of other facts, for example country evidence, may not suffer from the same concerns as to credibility, but should be treated with caution. (6) If before the second adjudicator the appellant relies on facts that are not materially different from those put to the first adjudicator, the second adjudicator should regard the issues as settled by the first adjudicator’s determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. (7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the appellant’s failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare. (8) The foregoing does not cover every possibility. By covering the major categories into which second appeals fall, the guidance is intended to indicate the principles for dealing with such appeals. It will be for the second adjudicator to decide which of them is or are appropriate in any given case.”
“20. On the evidence before me, I don't accept that the evidence of either Mr or Mrs D is consistent with involvement at any level of DHKP-C and, in my view, they have manufactured an account of such involvement to justify their asylum application. I don't accept that Mr D could have been involved in DHKP-C for six years whether as an important activist or a low level supporter without being aware of the fundamentalist Marxist-Leninist ethos of armed revolution and attacks on “symbols of Imperialism” as well as the Turkish security forces and public figures. … I don’t accept that Mrs D was interested in politics either before or after her marriage. 21. A clash with local villagers in June of 2000 prompted Mr and Mrs D to move to Istanbul. It is Mr D’s claim that whilst the incident began as a dispute over grazing rights, the issues were truly an attempt to persecute them because of their Kurdish ethnicity. Mr D was accused of being behind the violent incident because of his involvement with the DHKP-C. Mr D would have me believe that subjected to all kinds of torture including Palestinian hanging, falaka and electric shocks, he refused to confess to his DHKP-C involvement and was allowed to go free. I don't accept that if Mr D had been involved in DHKP-C as actively as he would have me believe between 1994 and 2000, that the authorities, suspecting his involvement, would not have been able to satisfy themselves with regard to the same such as to bring charges against him. On his own evidence, he’d been involved in various activities and given that he says that others confessed under torture and were charged with various offences arising from the grazing rights fracas, I find that if the authorities had been intent upon pursuing him as a supporter of DHKP-C, they would have been able to secure such information sufficient to bring charges or deal with him summarily as a known terrorist. I don’t accept that given these circumstances, Mr D would have been allowed to walk free to return home, subsequently to move to Kucukarmutlu in Istanbul.” … “36. … I had the benefit of observing both Appellants give oral evidence. I found them hesitant, confused, vague and evasive. I find that any one of the contradictions, inconsistencies and improbable events I have referred to aforesaid would go to the core of each of the Appellants’ accounts to be in need of international protection for a Convention reason. Looked at in the round, I find they have submitted wholly fraudulent asylum applications with no truthful foundation. 37. I have considered the implications for the return of Mr and Mrs D in terms of [2003] UK IAT 0034 A (Turkey) but do not accept there is anything in either Appellant’s background to place them at risk on return other than their Kurdish ethnicity. I do not accept that Kurdish ethnicity per se is sufficient to found a claim. I do not accept either Appellant would be at risk from the Turkish authorities on arrival there and find they will be viewed as nothing other than failed asylum seekers. I have been asked to accept various copy letters contained in the Appellants’ bundles with regard to AD, Mr D’s brother, HD, his cousin and various other relatives. [Counsel] tells me her instructions are that each of these individuals has been recognised as a refugee in the United Kingdom. There has been no evidence produced to me nor submissions made as to precisely how or in what manner, these individuals came by their ILR status in the United Kingdom and with the exception of AD and HD, their relationship to either of the Appellants. There is nothing before me to indicate that any of these individuals have been accepted as refugees. None of them attended court to give evidence nor was there any witness statement prepared by any of them for my consideration. On the evidence before me, I have found Mr and Mrs D to be wholly unreliable witnesses with regard to their claim to persecution in Turkey. I do not accept either of them come from a politically significant background nor that the relationship they have (if any) to the individuals whose documents are photocopied in their respective bundles, is significant in terms of A in placing either of the Appellants at any risk on return. I don’t accept, given my adverse credibility findings, the genuineness of the documentation relating to Mrs D’s family in terms of Tanveer Ahmed [2002] UK IAT 00439. 38. I have considered the position of each of the Appellants on return in terms of MS (Turkey) GBTS Info at Borders, Turkey [2004] UK IAT 00192, CE Turkey CG [2004] UK IAT 00233 and AG Turkey CG [2004] UK IAT 00168. I do not accept that either Appellant ever came to the attention of the authorities in Turkey. I don’t accept that their details will be logged in the GBTS or any other system. I don’t accept Mr D’s photograph and fingerprints were ever taken. I don’t accept either Appellant has any record which will adversely affect their return.”
“I find that the appellant has provided evidence in support of his imputed political opinion which post-dates the decision of Judge Peart. As such, I find that I can consider these matters in making my findings.”
“Imputed political opinion 60. I move on to consider whether the appellant would be at risk on return on account of his imputed political opinion. As stated above, Judge Peart made adverse credibility findings in respect of the appellant and did not accept the appellant’s account that he was a supporter/member of DHKP-C, nor did he accept that he would be at risk of persecution on return. I take his findings as my starting point. 61. The appellant seeks to rely on further evidence in support of his claim that he would be at risk on return. He also advances the same facts that he advanced in his asylum appeal before Judge Peart. As to new evidence, he relies on the accounts given by AD and AHD, and further documentary evidence. 62. In his witness statement dated8 April 2021 , AD stated that his (and by extension, the appellant’s) family have been involved in politics in Turkey, that many have been involved with the DHKP-C, and some have been imprisoned. He goes on to state that their cousin, DD, was murdered by the police in 2015. There is little doubt in his mind that if the appellant was returned to Turkey, he would be identified as a member of the family, questioned and tortured. In his further statement dated19 July 2022 , AD stated that the appellant was involved in politics in Turkey with DHKP-C. 63. In his witness statement, AHD stated that the appellant was a supporter of DHKP-C. He confirms that other family members have also been involved with DHKP-C and imprisoned as a result. He states that DD was murdered by the police in Istanbul in 2015. 64. The appellant also relies on an arrest warrant issued in his name by I.S.T State Security Court. This identifies the appellant as ‘Being a member and aiding and abetting of terror organisation called (D.H.K.P.C).’ The warrant is dated2 August 2001 . There is a further document from the ‘Office of the Chief Public Prosecutor’ dated15 August 2001 identifying the appellant as a person who did not attend court hearings as required to do so. It stated that the appellant gave ‘shelter and assistance to the illegal organisation (DKHP-C/Revolutionary People’s Liberation Party/Front) and also provided assistance and shelter to MD and AZD, close relatives of the individual concerned, who are militants of the organisation.’ The appellant further relies on an indictment issued by the Ankara Chief Public Prosecution Office in 2021, in respect of his nephew, HD. Under cross-examination, Ms Ayodele asked the appellant how he obtained these documents. He was unable to recall when he received the documents dated 2001, but said that they could have been sent by his brother, RD. 65. The appellant was asked what he thought would happen to him if he returned to Turkey, to which he said that he would have problems with the authorities, on account of his involvement with a left-wing organisation, and due to the fact that he was Kurdish. He was also asked whether he believed there were any outstanding charges against him in Turkey, to which he said he did not know. He said that it had been so many years since he left Turkey, he did not know what he would face on return. 66. AD was also questioned under cross-examination. He was asked why he believed that the appellant would be questioned and detained on return to Turkey. He stated that it was on account of him being a member of DHKP-C. He was asked whether the arrest warrant was still outstanding against the appellant, to which he said he did not know. 67. AHD was also questioned about the risk to the appellant on return to Turkey. He stated that he believed the appellant would have problems with the authorities, due to his political background. As per [46] above, Judge Mitchell allowed AHD’s asylum claim in July 2019. He made findings that a significant number of his family members have been accused of being DKHP-C members, or suspected as such; that the political fallout from DD’s death is unlikely to be at an end, with the finger of blame to continue to be pointed at the Turkish authorities; he would return without an up-to-date passport; his departure from Turkey would have aroused suspicion in terms of his political activities and allegiances; and, consequently, he would be at risk of persecution on return. 68. I have considered the evidence in the round. Whilst the findings of Judge Peart were my starting point, I find that I can consider facts which have occurred since the decision was made. I find that the murder of DD and the political activity of other family members of the appellant are facts I can now take into account. Further, I find that there is new evidence which supports the appellant’s claim that he is a supporter of the DHKP-C, namely the evidence of AD and AHD, and the arrest warrant, document from the ‘Office of Chief Public Prosecutor’ and the indictment pertaining to HD. 69. I am able to depart from the adverse credibility findings of Judge Peart. I do so because I found AD and AHD to be credible, and as such, accept their accounts. Furthermore, I find that the arrest warrant and document from the Office of the Chief Public Prosecutor demonstrate that the appellant was arrested, and has been subject to charges in Turkey, on account of his association with DKHP-C. They are corroborative of his account.”
“30. I turn now to the criticisms about the failure to follow Devaseelan. They really do not work; the judge’s directions were impeccable. Of course, it does not follow that the judge heeded the directions she had given but it is a reasonable assumption unless dispelled by clear evidence. The main reason for allowing the appeal was not what the claimant said because he was discredited but what other people said who were not available last time and that established a link between the family and the political party. Again, this was a matter for the judge and there is nothing unlawful in what she has concluded. 31. There is more merit in the point that one of the documents was criticised for being available but not produced on an earlier occasion. It may be that the judge has not really engaged with this although it is also possible that she did and could not get very far because it was the claimant’s evidence that he did not know why it was not available. Even if the judge was wrong about this I cannot see that it displaces the conclusion that was reached. It was part of the reasoning but the bigger part was the evidence believed from the live witnesses or family members who told their own story. 32. I am not persuaded that the lack of explanation for giving any weight to the document that must have been in existence at the time of the earlier hearing if not available to the claimant amounts to a material error. It is at most part of the package of reasoning and the decision is not dependent on it. 33. As was pointed out in argument before me important evidence was just not available before. An important reason for allowing the appeal was the evidence of Mr AD who arrived in the United Kingdom in April 2017 and successfully claimed asylum, or rather was refused asylum but successfully appealed the decision. AD is a relative of the claimant who gave supportive evidence that the judge believed. Paragraph 69 of the Decision and Reasons is particularly clear about this.”