Gurtekin, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1545 (Admin)

Case No CO/5190/2006[2008] EWHC 1545 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 22 May 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF GURTEKINClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr James Collins (instructed by Sheikh & Co of London) appeared for ClaimantMiss Katherine Olley (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE BEAN: The claimant is a citizen of Turkey. He arrived in the United Kingdom clandestinely on 3 March 2001 and sought asylum on arrival. His application was refused. An appeal against that refusal was dismissed by an adjudicator Mr G Hart in a decision promulgated on 23 April 2004. Leave to appeal to the tribunal was refused on 12 August 2004. No application to the High Court was made at that stage.[2]In June 2006 removal directions were set. There was an exchange of letters on 20 June and 21 June. The claimant's solicitors made two sets of representations and argued that they amounted to a fresh claim. The defendant, by a letter of 21 June, rejected those submissions and refused to treat the matter as a fresh claim.[3]An application was made to me as duty judge for an injunction to prevent removal, which I granted. Nobody suggests that this disqualifies me from hearing the substantive case. Proceedings were issued seeking leave to move for judicial review. After refusal on the papers, such permission was granted by Mr Justice Holman following an oral hearing on 19 March 2007.[4]In the meantime, between the decision under challenge and Mr Justice Holman's grant of permission, the Court of Appeal had decided the important case of WM (DRC) which, it is common ground, is now the leading case on the interpretation of paragraph 353 of the Immigration Rules. The leading judgment of Lord Justice Buxton and in particular paragraphs 6 to 11 are now very familiar to immigration lawyers and judges.[5]Essentially as Miss Katherine Olley, on behalf of the Secretary of State, accepted there are two questions when allegedly new material is put forward in support of what is alleged to be a fresh claim:(1) is the new material significantly different from that already submitted and which did not find favour with the adjudicator or immigration judge? If so,(2) is it rational to say that taken with the material already considered and applying the rule of anxious scrutiny, the new material does not create any realistic prospect of success before an immigration judge himself applying the same rule?[6]My answers in this case are yes to question (1) and no to question (2).[7]The adjudicator did not find the appellant's case credible. The appellant said he was born in Bingöl, a Kurdish area in the south east of Turkey and was of Kurdish ethnicity. There is no dispute about any of that. The appellant claimed to have been a sympathiser of the PKK since 1995 but not involved in the ideological side. He had provided PKK activists with food and cigarettes and so forth. But his father, he argued, had given a great deal of assistance to the PKK. He claimed that in 1998 his father, two paternal uncles, a maternal uncle and a cousin were taken to prison and tortured. His father was prosecuted, convicted and sentenced to imprisonment. In 1999 the appellant was taken to the security department, kept for seven days and beaten. This may have been because he was suspected of being, and indeed was, a draft evader.[8]I will not go through the lengthy and detailed findings of the adjudicator. But it was evidently an important part of the case that the appellant's father had been imprisoned for a significant period as well as being physically abused at an earlier stage and that other members of his family had been as well. The adjudicator concluded that the appellant's evidence about his father was not credible. He said at paragraph 60:
"The appellant may well claim that he would face detention because of the activities of his father and therefore his father's involvement with the PKK would be imputed to the appellant and thus he would be detained on return. In the first place, I am not satisfied and find that the appellant was not related to the gentlemen referred to in the documentation which had been submitted. There is no evidence of the relationship nor has the appellant explained the significance of the documents. However even if there is that family connection, it is clear that when the authorities had every opportunity to detain the appellant in 1998 and thereafter, particularly on his return home, they did not take the opportunity to do so. I find that there is no real likelihood that the appellant would now on return to Istanbul be taken aside because of his alleged father's activities and the family connection. This in itself leads me to conclude that the documents which are said to relate to the appellant's family do not in fact relate to the appellant but he has found documents relating to others with the same name of Gurtekin. The letter from the Turkish lawyer shows that they were supplied for a different man. I therefore reject the appellant's claim on credibility grounds for the reasons I have set out."
[9]It is right to say, as Miss Olley has emphasised, that the fourth sentence of that paragraph does, albeit very briefly, deal with an alternative case on the basis that there was a family connection between the appellant and what the adjudicator otherwise described as "his alleged father".[10]There are points to be made even on that basis that if Mr Gurtekin Snr was indeed a PKK activist who had been subjected to persecution by the authorities one might have expected the appellant to be detained when he returned home in 1998. The point is one which might carry weight with an immigration judge, despite the new evidence to which I shall come in a moment, or it might not. But once the adjudicator had rejected the appellant's case as to being the son of the Mr A Gurtekin mentioned in the documents, and found the appellant in effect to have been a fraud, it would have required a superhuman effort on his part to consider the alternative unaffected by his poor view of the appellant's credibility.[11]The new material which was submitted to the Secretary of State in June 2006 consists of the following items: a report from Mr J D Norton, Director of the Centre for Turkish Studies at Durham University, a letter from a Turkish advocate Mr Baki Aksoy, and determinations of the Asylum and Immigration Tribunal in cases of Mustapha Gurtekin and Vedat Gurtekin who the claimant says are respectively his brother and his cousin.[12]There is one further item of new material which was not before the Secretary of State in June 2006 but which has been submitted subsequently, namely DNA evidence showing that the claimant is the brother of Mustapha Gurtekin. That was made the subject of further representations to the Home Office. By letter of 27 February 2008 the Judicial Review Unit of the Border and Immigration Agency repeated, on the Secretary of State's behalf, her refusal to treat Mr Gurtekin's claim as a fresh claim even with the DNA evidence taken into account.[13]Mr James Collins for the claimant and Miss Olley for the respondent sensibly agreed that I should consider the matter up to date even though the submission of the DNA evidence and the Secretary of State's rejection of it as constituting a fresh claim have occurred after the lodging of proceedings. There would be no purpose whatever in requiring further amendment of this claim or the issue of a new one.[14]Mr Norton's report demonstrates that he has extensive knowledge of Turkish affairs, including a spell as Assistant Military Attaché at the British Embassy in Ankara, and a period as an intelligence officer seconded to work with Special Branch in the Cyprus Police. He has, he says, seen countless official Turkish documents, and the experience he has gained at the embassy and with the Special Branch of the Cyprus Police has proved useful in detecting bogus ones. He has examined statements made by members of the claimant's family to the Turkish gendarmerie and to a public prosecutor, an indictment accusing the claimant's father and uncle of involvement with the PKK, an arrest warrant for the father and another for the uncle and the letters of Advocate Baki Aksoy (of whom more in a moment). In his view for the reasons he gives those documents appear to be genuine.[15]Advocate Aksoy's letter as translated states that:
" ..... [the claimant's] father Abdulvahap Gurtekin was tried in ..... [the] State Security Court and was sentenced for aiding and abetting an illegal PKK organisation. ..... another member of the ..... family, Selahattin Gurtekin, has been sentenced to 3 years 9 months' imprisonment with hard labour for aiding and abetting the ..... PKK ..... Murat and Vedat Gurtekin ..... are being sought by the security forces. The Gurtekin family is known roundabout as one that is sympathetic to the illegal PKK organisation and as one that has aided and abetted the organisation. For that reason they are frequently taken into custody and subjected to pressure by the security forces. Because Cahit Gurtekin [the claimant] is wanted by the security forces, if he is caught it is probable that he would be detained for aiding and abetting the illegal PKK organisation and securing logistic support for it."
[16]The two determinations of the tribunal in the case of the claimant's brother and cousin in each case resulted in decisions favourable to the appellant. In Vedat's case it was the decision of a two-judge tribunal on reconsideration. It is fair to say, as Miss Olley points out, that each of those two members of the family was found to have some political profile of his own, but the father's activities and the family background, as the two-judge tribunal put it, are important themes in those decisions. Certainly the two decisions taken together, while of course not binding in the present appellant's case, do suggest very strongly that there is something to be looked at. In paragraph 27 the two-judge tribunal said:
" ..... In our view, the authorities have purposely focussed upon the appellant due to his own political or perceived political involvement and his family connections, in particular his connection to his two brothers, Metin and Mustapha."
[17]In the Home Office's decision letter of 21 June 2006 a number of points are made. I should say, as is apparent from its date, the letter was written before the decision of the Court of Appeal in WM (DRC), and in particular before the requirement of anxious scrutiny was emphasised so strongly by the Court of Appeal and emphasis placed on the question of whether there is a realistic prospect of success before an immigration judge rather than a realistic prospect of success in impressing the decision maker.[18]With that prelude, one looks at the points that are made. In the second paragraph it states:
"You assert that your client is at continued risk of persecution in Turkey. Your client's claim is essentially based on the same factors as his previous claim."
That is true: the grounds are the same. But the material in support of the claim is not the same at all.[19]The writer goes on:
"In support of these representations you have re-submitted various copies of documents with translations which were considered by the adjudicator [the Norton report, the Aksoy letter and the determinations in cases of Vedat and Mustapha]."
After referring to a passage from the adjudicator's determination, the writer goes on:
"The adjudicator made no specific findings as to the authenticity of these various documents. It is therefore concluded that Mr Norton's report regarding their authenticity adds little to your client's case."
[20]It is, with respect, a little hair-splitting to say that the adjudicator made no specific findings as to the authenticity of the documents concerning Mr A Gurtekin in particular. It is true that he did not find the documents to be fraudulent but he was not satisfied that Mr A Gurtekin was the claimant's father. If he was right about that then documents as to what had happened to a Mr A Gurtekin were of no value whatever to the claimant and indeed their submissions served only to discredit him. So to conclude that "therefore" Mr Norton's report regarding their authenticity added little to the client's case seems rather hard.[21]In any event, Mr Norton does not stand in isolation. The next material considered in the letter is the documents or purported documents from Advocate Aksoy. On this the letter says:
"I note that you have offered no explanation as to the commissioning of the letters from Mr Aksoy. Mr Aksoy's letter of 15.05.2006 states that your client 'is among individuals listed as wanted in case file number 1998/62 .....' This is the same case file as Mr A Gurtekin. It is apparent that this case file pre-dates your client's detention for draft evasion in 1999 and return to his family home post military service in 2000. You have offered no reasonable explanation as to why your client was not detained previously if he has been wanted for separatist activities. It is concluded that the letters from Mr Aksoy do not challenge the adjudicator's findings on this point and have little evidential value. As the adjudicator considered your client's position if he was related to the Gurtekin family mentioned in the documents your efforts to prove the family relationship with the translated ID card add little to this case."
[22]I have already observed that the adjudicator did indeed consider, albeit briefly, the position of the claimant if he was related to the Gurtekin family mentioned in the documents. But the overwhelming burden of his determination is that he considered that alleged relationship to be bogus.[23]As to that, if Mr Aksoy's letter is a true document then it is of very considerable evidential value. No Tanveer Ahmed exercise has been carried out to suggest that Advocate Aksoy's letter is something which, looked at in the round, cannot be used as reliable evidence. On the contrary, Mr Norton, whose integrity is surely not in question and has not been called into question by Miss Olley or the respondent, considers that it is a genuine document.[24]The respondent's letter continues:
"I note that your client is not referred to in either of the appeal determinations submitted [the cases of Mustapha and Vedat Gurtekin]. In both these cases the appellants were found credible and it was accepted that they had political profiles in their own right and had recently been detained on this basis. Their family name was only a consideration when combined with these factors. In the circumstances these cases are considered to be distinguishable from your clients."
It is quite right that the claimant was not referred to in either of the appeal determinations submitted. It is also correct that in both those cases the appellants were found credible whereas in this one the claimant was not, but that point seems to me to be circular.[25]The question is whether the claimant in the present case may be found credible on the basis of the new material added to the old, where the new material includes findings by the tribunal in the cases of two other members of his family which, at least, go part of the way to making out his case: not all the way, it must be accepted, but Mr Collins does not have to go so far.[26]It is also right that Mustapha and Vedat Gurtekin appear to have had political profiles in their own right whereas the claimant does not. That may prove in the end to be a crucial distinction when the case falls to be considered afresh. That is not for to me say. But it is quite wrong to say that that distinction is bound to be conclusive and that therefore there is no realistic prospect of success on that ground in the event of the matter being re-heard.[27]I entirely accept Miss Olley's submission that the mere fact of having a relative - even a close relative - whose asylum application has been granted does not entitle a claimant to succeed. The decisions in the end may be different. That is a far cry from saying that there is no realistic prospect of success.[28]Summing up the rejection of the new material, the letter of 21 June 2006 goes on:
"It is concluded that the documents you have submitted for the first time are self-serving and little evidential weight can be attached to any of them."
Except in the sense that all evidence submitted by a party is self-serving, I do not understand this statement. The determinations in Mustapha's and Vedat's cases in particular are as far from being self-serving as any documents could be. They are the decisions of independent tribunals. I also doubt whether that adjective can properly be applied to the report of Mr Norton or the letter of Advocate Aksoy.[29]I therefore conclude without hesitation that the claimant has satisfied the requirements of the Court of Appeal in WM (DRC). I do think that the new material is significantly different from that already submitted and it is not rational to say that - taken with the old material - it does not create any realistic prospect of success before an immigration judge applying the principles of anxious scrutiny. Accordingly the Secretary of State's decision made on 21 June 2006 and confirmed on 27 February 2008 to refuse to treat the claimant's representations as a fresh claim must be quashed.[30]MR COLLINS: We would respectfully request our costs in this matter and also public funding taxation.[31]MISS OLLEY: No schedules have been provided unfortunately of the claimant's costs. I am not in a position to deal with that.[32]MR JUSTICE BEAN: In principle, the application for costs must be well founded. Shall I say to be assessed in detail if not agreed?[33]MISS OLLEY: Yes.

MR JUSTICE BEAN: I am very grateful to both of you for your assistance.