BP Turkey [2002] UKIAT 04332 (20 September 2002) [2002] UKIAT 04332

UKIAT
BP Turkey [2002] UKIAT 04332 (20 September 2002)
[2002] UKIAT 04332 · 2002-09-20
[1]BP Turkey [2002] UKIAT 04332 HX53296-2001 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 12/09/2002 Date Determination notified: 20 September 2002 Before Dr H H Storey Mrs R Faux Between BP APPELLANT and Secretary of State for the Home Department RESPONDENT DETERMINATION AND REASONS The appellant, a national of Turkey, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr C H Bennett, dismissing the appeal against the decision by the respondent to refuse to grant leave to enter on asylum grounds. Miss K Marks of Counsel instructed by Sheikh & Co Solicitors represented the appellant. Mr S Ouseley appeared for the respondent.[2]The Tribunal has decided to dismiss this appeal.[3]In the course of a convoluted determination the adjudicator accepted that the appellant had been detained on three occasions, one in 1995, one in 1997 and one in 1998, on suspicion of involvement in the PKK. However, since he found the appellant's involvement with the PKK was at a very low level, he concluded these facts would not place him at real risk of persecution on return.[4]The adjudicator also accepted the appellant's father had some level of involvement with the PKK. He did not specify what level, except to note it was greater than that of the appellant's. So much we glean from the penultimate sentence of paragraph 31(b), read together with his statement at paragraph 41 that he was "not satisfied" that the "appellant's involvement with the PKK was comparable to that of his father". Given, however that he rejected the appellant's claim that his father was abducted and killed by the security forces, it was plainly not accepted that his father was a prominent PKK member or supporter. The most that can be said is that he accepted the appellant's family had come under suspicion of PKK involvement.[5]Whilst we have some difficulty with the overall coherence of the adjudicator`s determination, we consider he gave sound reasons for reaching the above findings. The only issue in this appeal is therefore whether he was correct to conclude on the basis of these findings that the appellant would not face a well-founded fear of persecution upon return.[6]The principal reasons the adjudicator gave for concluding the appellant would not face such persecution were as follows. Firstly, he considered that his involvement with the PKK was "at the lowest of levels". Secondly, he did not consider that his 3 arrests demonstrated that the authorities seriously thought he was involved in assisting the PKK, in particular it seemed to him that, by accepting his bribe not to send him to the army, the authorities had shown they were not unduly concerned about the appellant. Thirdly, given the appellant had now been out of Turkey for over 3 years, the authorities would no longer have any interest in the appellant as a means of obtaining information as to the whereabouts and doings of a cousin connected with the PKK.[7]In this case the appellant based his contention that he would not be viewed simply as a failed undocumented asylum seeker on two arguments.[8]One was that the authorities would have a record of his previous detentions and the reason for them and would thus treat him as falling directly within the suspected separatist category.[9]The other was that they would have a record connecting him to his father, again as someone considered to be a suspected separatist.[10]In a number of previous determinations the Tribunal has taken the view that anyone who has a record of involvement with a separatist organisation such as the PKK would be at real risk of persecution as a suspected separatist. Determinations to this effect include ones written by the current Chairman: e.g. Almalikuyu [2002] UKIAT 00749; Elidimir [2002] UKIAT 00300.[11]Mr Ouseley urged us to take a different view. In this regard he drew our attention to several recent Tribunal determinations.[12]One was Kurucam [2002] UKIAT 03175 which set considerable store by the fact that the PKK has ceased armed struggle and saw as decisive the fact that, although the appellant and his father had been arrested twice on suspicion of PKK involvement, they had both then been released and cleared of any suspicions and had experienced no problems thereafter.[13]In Aktas [2002] UKIAT 03136 the Tribunal agreed with the adjudicator who had not considered a history of frequent detention on suspicion of PKK involvement as decisive because the appellant had been considered of sufficiently low risk to be granted a period of 3 months grace before being required to become an informer. Aktas also highlighted the fact that the PKK has ceased violent activities and has regrouped under a Turkish name (acronym KADEK), that the situation in Turkey was improving and that, according to the German immigration authorities as reported in the CIPU April 2002 report on return to Turkey:
"In general there is no follow-up unless the individual is the subject of legal proceedings"
. It relied on the lack of evidence that the authorities had come looking for the appellant or had any continuing interest in him; for example, by having criminal proceedings currently in progress or contemplated against him. It stated: "While there may well be a record somewhere at Elbistan police station that he was more or less informally detained there twice in 1999, what we have to decide is whether he would not be an object of hostile interest to the authorities there or at the point of return to Turkey, on account of his failure to keep his side of the bargain for him to become an informer".[14]In Guzel [2002] UKIAT 03743 which concerned a claimant with low-level involvement with HADEP, the Tribunal concluded: "Put at its highest, he had been arrested and detained three times, on each occasion briefly, and subsequently released. The arrests in 1999 and 2000 were as a consequence of mass roundups at Newroz demonstrations. He appears to be of little, if any, interest to the authorities in his own right. In the view of the Tribunal, such enquiries as might be carried out would reveal this very low level history, and the Tribunal does not consider that the objective evidence sustains the contention that a person with a history such as this Appellant has would be at any real risk of mistreatment giving rise to persecution and/or breach of his human rights on return".[15]In Tasyurdu [2002] UKIAT 03722 , a case not put before us but taking a similar approach as in the above cases, the Tribunal held that they did not consider that the appellant's arrest and detention in 1994 for giving food and succour to the PKK would mean that he was currently at risk. The Tribunal stated that it did not read the objective country materials as establishing that the Turkish authorities operate the approach of "once a suspected separatist, always a suspected separatist". It stated: "It seems to us more sensible to assume that the Turkish authorities would approach the question of whether he should be regarded as a suspected separatist by reference to a number of obvious features about the appellant's case. In particular they would note that the arrest was a long time ago, that he was young at the time, that in any event his only involvement with the PKK was the extremely passive one of providing them with food and succour and that there was nothing to show that he or his family had subsequently been of any concern to them, except in relation to his draft evasion".[16]Essentially the Tribunal is required to take a view about how the authorities would react to returnees with a record of involvement in separatist organisations such as the PKK and HADEP.[17]This Tribunal recognises that in many previous determinations it has taken the view that those with a record of involvement with separatist organisations such as PKK and HADEP would be at risk. We are obviously not bound by findings of fact and it is always necessary to look at the position as it stands at the date of the hearing. We thus have to ask, in the light of the available evidence as to how the authorities deal with returnees, does that evidence show they would routinely ill-treat returnees with a record of involvement in organisations such as the PKK and HADEP, irrespective of the nature and level of their involvement and irrespective of what the record may indicate about the level of risk posed by the claimant from the point of view of the Turkish authorities?[18]There are competing considerations.[19]On the one hand, the objective country materials including the April 2002 issue of the CIPU report at paragraph 5. 83 continue to state that ill treatment can be visited upon "suspected separatists". So far as we are aware, this concern stems from a UNHCR letter dated March 1999 stating, inter alia, that:
"Obviously the group most likely to be exposed to harassment/prosecution/persecution are Kurds suspected of being connected to or being sympathisers of the PKK…. It is essential to find out if Turkish asylum seekers, if returned, would be at risk of being suspected of connections to or sympathy with the PKK, or have otherwise a political profile"
. The operational guidance note from the Home Office dated January 2002, albeit stating that the PKK has ceased armed struggle, notes: "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".[20]The US State Department Report covering 2001 states that despite the end of the war:
"Security forces continued to target active PKK units as well as those persons they believed supported or sympathised with the PKK, and conducted operations against villages throughout the region [i.e. the four southeastern provinces still under a state of emergency] which yielded ammunitions caches."
[21]It is true that the Turkish government has undertaken a number of new initiatives designed to improve its human rights record. However, most of the major country reports continue to tell us that the Turkish authorities still make widespread use of torture and less forms of ill treatment and that human rights abuses are still committed on a significant scale by police and security forces.[22]On the other hand, there are several indications that mistreatment at the point of return is a limited phenomenon.[23]Firstly, 5.82 of the CIPU report for April 2002 records a senior official at the Visa Department, Ministry of Foreign Affairs stating in March 2001 that "the Turkish government now recognised that the overwhelming number of Turkish nationals who had applied for asylum overseas had done so for purely economic reasons. They were of no interest to the Turkish Government, and would not be imprisoned on return".[24]Secondly, statistics such as there are do not indicate that mistreatment of returnees is a serious problem in quantitative terms. So far as statistics on returnees are concerned, the CIPU report rightly approaches these with some caution, given that there are more actual cases of mistreatment than those reported. However, the figures such as they are appear to indicate that in the last ten years, out of 43,704 Turkish nationals returned (7,102 of whom were identified as unsuccessful asylum seekers) there have been only 70 reported cases of mistreatment, the most in any one year being 17 in 1997.[25]Thirdly, whilst it is clear that the Turkish authorities still target suspected separatists, they are plainly aware that the nature of the threat posed by separatist organisations has changed significantly since the PKK ceased armed struggle in 1999. In the course of a statement on 16 April 2002 Deputy Prime Minister Yilmaz said that the fact that the PKK had realised that violence and terrorism were not a solution was a positive development. However, those who were involved in terrorism in the past should, he said, definitely be brought to justice. The passage in the US State Department report covering 2001 recording the security forces continuing to target active PKK units as well as those person they believed supported or sympathised with the PKK plainly deals with the localised situation on the ground in the remaining four provinces in which there is still a state of emergency. In the same paragraph that report notes that the level of violence has remained low since 1999 and that in 2001 there were only 45 armed clashes.[26]Fourthly, the evidence of actions taken against those involved in separatist organisations such as the PKK and HADEP increasingly indicates that the principal risk of persecution is to those who are prominent members. The main focus of police raids and detentions and prosecutions has been against prominent PKK and HADEP officials or supporters.[27]Fifthly, albeit based only on its own dealings with returnees from Iraq, UNHCR has stated that it is satisfied that returnees as a category are not subjected to persecution upon return to Turkey.[28]In seeking to reconcile these different pieces of evidence, we are conscious that some of the reports before us are based on views about risk originally formed at a time when the PKK was still pursuing armed struggle and when the level of armed conflict in the south east of Turkey was high. We consider that the Tribunal determinations in Aktas and Guzel and Tasyurdu more accurately reflect the current situation. Whilst there remains a real risk that persons who are considered to be "suspected separatists" will continue to face ill-treatment at the point of return, it is not reasonably likely that the authorities will include in that category all persons who have a record of involvement in separatist organisations irrespective of the degree and nature of that involvement. Given that the authorities are aware that those linked with separatist organisations no longer pose a serious threat to them as persons likely to engage in armed struggle, it is not reasonably likely they would continue to routinely process returnees so linked as if all of them posed such a serious threat.[29]In such circumstances we consider that whether or not the authorities will ill-treat a returnee with some record of involvement in a separatist organisation must now be dependent on a number of factors, including but not confined to the following nine: a) the level of the appellant's involvement in that organisation (whether he would be considered as a prominent member or supporter); b) how long ago the appellant was last arrested or detained; c) whether the circumstances of the appellant's past arrests and detention (if any) indicate that they did in fact view him as a suspected separatist; d) whether the appellant was charged or placed on reporting conditions or now faces charges; e) the degree of ill treatment he received in the past; f) whether he or she has family connections with a prominent member of a separatist organisation such as the PKK or HADEP; g) how long a period elapsed between the appellant's last arrest and detention and his departure from Turkey; h) whether in the period after the appellant's last arrest there is any evidence that he was kept under surveillance or monitored by the authorities. (i) whether the appellant`s home area is in one of the four remaining state of emergency provinces: Diyarbakir, Tunceli, Sirnak and Hakkari.[30]We emphasise that the above list of 9 factors is not intended as an exhaustive list: it does no more than identify certain factors likely to be relevant in deciding whether an appellant will face a real risk of persecution in the particular circumstances of his case. However, we are satisfied that a Turkish appellant of Kurdish origin cannot succeed unless he can show, by reference to factors of this kind, something more than that the authorities will have a record of his involvement in or sympathy for a separatist organisation. Application to the particular circumstances of this case[31]The appellant was found by the adjudicator in this case to have been involved with the PKK at a very low level. The adjudicator also found that the particular circumstance of his arrest – in particular the fact that they were prepared on payment of a bribe not to send him upon release to the army – did not indicate they seriously considered his involvement with PKK posed a threat to them. He also noted that three years on it was not likely the authorities would see him as a means of obtaining information about a family member (cousin) whose involvement with the PKK apparently was of interest. The adjudicator had not accepted that there were any criminal charges outstanding against the appellant. We would also note that, whilst it was reasonably likely the authorities would know the appellant`s father was involved with the PKK, there was no satisfactory evidence his father had been considered a prominent member and he was in any event now deceased. The appellant's last arrest and detention had occurred in July 1998. He did not leave Turkey until December 2000.[32]For the above reasons we consider that on return it was reasonably likely the authorities would have a record on this appellant and that they would interrogate and briefly detain him in order to make further inquiries. However, we are satisfied they would not conclude he came within the suspected separatist category. The adjudicator was right to conclude that the appellant would not face a real risk of persecution or treatment contrary to his human rights.[33]Accordingly the appeal is dismissed. DR H H STOREY VICE-PRESIDENT

Cited in 3 later judgments