Bozkurt, R (on the application of) v Immigration Appeal Tribunal [2004] EWHC 70 (Admin)

Case No CO/3222/2003[2004] EWHC 70 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 16th January 2004
Strand
London WC2
B E F O R E:
MR JUSTICE BEATSON
Between
THE QUEEN ON THE APPLICATION OF BOZKURTClaimant-v-
Between
IMMIGRATION APPEAL TRIBUNALDefendant
MR N S STANAGE (instructed by Newcastle Law Centre) appeared for CLAIMANTMISS J ANDERSON (instructed by the Treasury Solicitors) appeared for INTERESTED PARTY
J U D G M E N TFriday, 16th January 2004
[1]MR JUSTICE BEATSON: This is an application for the judicial review of the refusal of the Immigration Appeal Tribunal on 9th April 2003 to give permission to the claimant to appeal the decision of the special adjudicator dismissing his appeal from the decision of the Secretary of State in relation to his asylum appeal.[2]The claimant is a Turkish citizen of Kurdish ethnicity who arrived in this country in November 2001. The special adjudicator, although dismissing the appeal, accepted a number of aspects of the claimant's case. As well as evidence concerning the claimant, the objective evidence considered included a Home Office country assessment dated November 2002. His findings of fact included the following (which I take from Mr Stanage's skeleton argument paragraph 6):
"(i) [the claimant] is from Tunceli, until recently a province under a state of emergency; (ii) [the claimant] was detained and beaten by Turkish police in 1986; (iii) [the claimant] was questioned and beaten unconscious by the authorities in March 1997. It was accepted that he was beaten, subjected to death threats, and interrogated in order to extract information on Kurdish revolutionaries; (iv) [the claimant] is the cousin of Celal Alpay; (v) Celal Alpay was a supporter and member of the Turkish Communist Party Marxist Leninist (TKPML); (vi) TKPML is an illegal left wing party and in October 1999 it announced its complete disagreement with the call by Abdullah Ocalan to end the armed struggle. Hence, it remains active; (vii) Celal Alpay was serving a sentence for political activities as a member of TKPML and, following a hunger strike, died in prison on 12 April 2001; (viii) [the claimant] attended the funeral of Celal Alpay where he shouted slogans and carried placards; (ix) Persons suspected of membership of left wing radical organisations such as TKPML or anyone suspected of giving support or shelter to such organisations is handed over upon return to Turkey to the Anti-Terror Branch. Torture or ill-treatment of suspects at the police anti-terror branch cannot be ruled out."
The adjudicator, however, also found that in 1997 the claimant was not formally arrested or charged (paragraph 34) and that his account that there had been a systematic campaign of persecution after Celal Alpay's funeral was not credible (paragraphs 37 and 40). He concluded that "... the core of the Appellant's account of persecution lacks credibility and is a fabrication designed to gain access to the United Kingdom" (paragraph 41).[3]After setting out the law on the asylum, the adjudicator concluded in paragraph 45 that he was not satisfied "that the authorities would have a record of any involvement in or sympathy for any of the separatist organisations which are still operating in south east Turkey" (paragraph 45). In paragraph 46 he stated:
"Having considered these factors I am not satisfied that on return it would be reasonably likely that the authorities would have a record on this Appellant or that they would wish to interrogate or detain him in order to make further enquiries. Even if they were to do so I am satisfied that the authorities would not conclude that the Appellant is from the suspected separatist category."
[4]The grounds upon which the claimant appealed to the tribunal included in 4(c) a submission that the adjudicator, in paragraph 46, failed to give due weight to the facts he had accepted when assessing the likelihood of the authorities having a record on him such that he might be detained, interrogated and tortured on suspicion of a separatist political opinion.[5]The tribunal, as I have stated, refused permission to appeal. It stated in its reasons that the adjudicator's findings were open to him on the evidence.[6]Mr Stanage, in the judicial review proceedings, submits that the adjudicator erred in law in concluding on the facts found that there was no reasonable likelihood of detention or ill-treatment amounting to persecution if the claimant was returned to Turkey, and that the tribunal erred in failing to take proper account of those facts, accepted by the adjudicator, in considering whether there was an error in his decision.[7]In these proceedings the significant point on which the claimant relies is the decision in Hayser v Secretary of State for the Home Department [2002] UKIAT 07083, a decision of the tribunal given on 6th March 2003, after the grounds of appeal were lodged but before the tribunal considered this case. On 15th September 2003 Maurice Kay J, as he then was, gave permission on the papers on the ground that the submissions based on Hayser were arguable.[8]Mr Stanage's submissions, in both his skeleton argument and before this court, were essentially that, in reaching his conclusion regarding risk on return, the adjudicator did not give due weight to all material factors regarding risk. He pointed to the factors listed in paragraph 70 of Hayser, which were drawn out of the general conclusions the tribunal had made from the objective evidence. These conclusions were set out in 16 points in paragraph 68 of the tribunal's decision.[9]It is not said by Mr Stanage or stated in the grounds that the adjudicator did not take these into account. What is said is that he did not take proper account of them and this constitutes an error of law. In particular, Mr Stanage challenged the conclusion in paragraph 46 of the adjudicator's determination that he was not satisfied that the authorities would have a record on this appellant as being inconsistent with what is contained in the objective evidence. He contended this was not a conclusion the adjudicator could properly come to on a proper appreciation of the guidelines in Hayser. He also submitted that the conclusion that the adjudicator was not satisfied that the claimant would risk interrogation and detention was irrational because all returnees are stopped and checked and detained. In his oral submissions Mr Stanage also emphasised the absence of any discrete assessment of the risks on return as a person expelled from the UK, a matter dealt with in the objective evidence and marked out in Hayser.[10]His skeleton argument sets out the following points drawn from the general conclusions distilled in Hayser from the Home Office's country assessment. These are:
"(i) The Turkish government keeps a centralised computer record on those who, like [the claimant], have been previously arrested [paragraph 5.61]; (ii) All those who are returned to Turkey are checked against the said central computer [paragraph 6.89]; (iii) The Turkish border authorities 'often' interrogate those who have been previously arrested and those, like [the claimant], who left illegally [paragraph 6.90]; (iv) Anyone suspected of giving support to the very group of which [the claimant]'s cousin was a member is handed over to the Anti-Terror Branch. Torture or ill-treatment of suspects in those circumstances cannot be ruled out [paragraph 6.91]; (v) Torture in Turkey is still 'endemic' [paragraph 6.1]."
[11]Miss Anderson, on behalf of the Secretary of State, the interested party, submits that this challenge and the way it is put, which was not clearly put in the grounds of appeal to the tribunal, is an attempt to re-visit the facts as found by the adjudicator. She reminded the court of the need for the Immigration Appeal Tribunal to discover an error before it has jurisdiction, and relied on the decision in Indrakumar v Secretary of State for the Home Department [2003] EWCA Civ 1677 as to the circumstances in which the tribunal may interfere with a decision of an adjudicator.[12]She also submitted, in support of the main thrust of her argument that there was no challenge to the findings of fact concerning the claimant, that the standard upon which a reviewing court and the tribunal could interfere with the adjudicator's findings was that of Wednesbury unreasonableness. This is, she submitted, a high standard and there are many decisions, of which Indrakumar is one of the most recent, which remind the courts of the limited role they have.[13]In her skeleton argument she pointed to the facts the adjudicator found. She submitted that paragraph 46 of the decision was a conclusion which had to be assessed in the light of the findings of fact as to the evidence relating to this claimant and the assessment of the objective evidence earlier in the decision.[14]I am very conscious of the limits upon both the tribunal and this court. The issue in this case, given the way Mr Stanage has put his argument, concerns what Hale LJ, as she then was, characterised as findings as to the application of general country conditions to the facts of a particular case (see Indrakumar paragraph 13, proposition (4)(b)). Her Ladyship stated that, in relation to findings as to the application of general country conditions to the facts of the particular case, there will be an inference to be drawn by the adjudicator and then, if appropriate, by the tribunal. The tribunal will be entitled to draw its own inferences, just as is the appellate court under the CPR, once it has detected an error in the adjudicator's approach.[15]I have concluded, with regard to paragraph 46 of the adjudicator's decision, that the conclusion concerning the record on this appellant is an error in the application of the general country conditions to the facts of this particular case. I do so because of the features of the country assessment highlighted in the claimant's skeleton argument, which are set out earlier in this judgment. Accordingly, I conclude that the tribunal erred in law in refusing the claimant's application for permission because of the condition and what is said in paragraph 46 of the adjudicator's decision.[16]This application is therefore allowed and the matter is to be remitted to the tribunal.[17]MR STANAGE: My Lord, the claimant enjoys a certificate of public funding in this matter. I wonder whether the court would be good enough to grant costs.

MR JUSTICE BEATSON: Yes.

[19]MR STANAGE: I am most grateful.[20]MISS ANDERSON: My Lord, I do ask for permission to appeal in this matter, I appreciate I do not have to. The view that is taken of the background material is of course of some considerable importance. In my submission, if the findings of the adjudicator in this case can be found to be irrational, that is a matter which, in my submission, should be considered further, given that of course it is material that applies in many cases. It is a high test, and where --[21]MR JUSTICE BEATSON: I am just wondering where on the ratchet it comes. What is a high test?[22]MISS ANDERSON: For the tribunal to be compelled to interfere, as it were, or to have --

MR JUSTICE BEATSON: Not compelled.

[24]MISS ANDERSON: To be found to be irrational or erroneous in law for not finding they ought to interfere, perhaps that is two tests together, a test of finding that the tribunal has it wrong, which is irrationality or error of law --[25]MR JUSTICE BEATSON: Error of law. When you are looking for appeal you always focus on the irrationality ground because it sounds so unlikely, but it is the same thing.[26]MISS ANDERSON: Here what is being said is that the adjudicator has reached a conclusion on the objective material which no reasonable adjudicator could have reached and therefore the tribunal should have interfered, should have found that they had a jurisdiction to interfere, as it were. Given the applicability of the background material to so many cases, for that to be not just a question of weight but to be a question of error of law in my submission is a matter which may be of some significance to very many cases, so perhaps it is something that ought to be looked at, if not for any other reason but for the court to give guidance as to the application of the various tests in this context. Those are my submissions, my Lord.[27]MR STANAGE: My Lord, I can respond briefly in the following manner. Hayser had only just been promulgated some three weeks before the defendant in this matter refused permission. The case of Hayser, my learned friend and I can perhaps agree, is now so widely known and so often put as the starting point in Kurdish cases which originate from Turkey before adjudicators and the tribunal that my learned friend's concerns about the scope of Hayser are perhaps unfounded. In my submission, very much in this case did turn on the very recent promulgation of Hayser. The principles now happily are very well-known and so there is no cause to believe that they need further clarification in any other court.[28]MISS ANDERSON: Just to respond briefly, my Lord --[29]MR JUSTICE BEATSON: I do not think I need to call on you. I am going to give permission to appeal because the issue is not really about Hayser, but about the interrelationship between the application of the objective evidence to the facts of the particular case. I am minded to say on the form that the reason for my decision is that the case concerns the fourth category, the circumstances in which the tribunal should find that an error of law has been made in the application of general country conditions to the facts.[30]MISS ANDERSON: Yes.[31]MR JUSTICE BEATSON: Of course, if you are right about your prediction of the future, then it would be of interest for a very short time.[32]MISS ANDERSON: Given the number of cases that are going through the system I think in actual fact there are a large number of cases that it could potentially still affect.

MR JUSTICE BEATSON: Thank you both for your submissions.