DA (Unsigned interview notes) Turkey [2004] UKIAT 00104 (14 May 2004) [2004] UKIAT 00104

UKIAT
DA (Unsigned interview notes) Turkey [2004] UKIAT 00104 (14 May 2004)
[2004] UKIAT 00104 · 2004-05-14
[1]APPEAL No. DA (Unsigned interview notes) Turkey [2004] UKIAT 00104 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 22 nd April 2004 Date Determination notified: 14 th May 2004 Before The Honourable Mr Justice Ouseley (President) HH Judge N Huskinson (Vice President) Mr A Jordan (Vice President) Between Secretary of State for the Home Department APPELLANT and DA RESPONDENT For the Appellant: Mr L Parker, Home Office Presenting Officer For the Respondent: Mr H Norton, instructed by YVA Solicitors DETERMINATION AND REASONS This is an appeal against the determination of an Adjudicator, Mr D P Herbert, who, in a determination promulgated on the 8 th November 2002, allowed the Claimant's appeal under both the Geneva and European Human Rights Convention.[2]The Claimant is a citizen of Turkey who left on 7 th April 2000 arriving in the UK on the 15 th April 2000 where he claimed asylum. He was born in 1976. The Secretary of State appeals against the Adjudicator's determination on three grounds.[3]First, he submits that the Adjudicator wrongly discounted the interview in this consideration of the Claimant's credibility. The Adjudicator discounted the record and the discrepancies which it was said to expose, because the Claimant had declined to sign the record after the interview had closed.[4]The second ground of appeal related to the Adjudicator's approach to the relatives of the Claimant who had been granted refugee status in this country. He made an assumption as to the basis upon which they had been granted indefinite leave to remain; that was part of his reasoning that the Claimant was in a category of high risk.[5]The third ground of appeal related to the risk to which the Claimant would be subject upon return to Turkey. In particular, the Secretary of State contended that taking the Claimant's case at its highest, the current background material and assessment by the Tribunal meant that there would be no real risk of persecution or breach of Article 3 upon return.[6]It is not necessary to set out in any detail the contentions of the Claimant in this case. Briefly, he is an Alevi Kurd who contended that on four occasions he had been detained for a number of days, beaten or tortured. The Adjudicator, who accepted the credibility of the Claimant, dealt with the discrepancies which arose between what he had said in his statement and what he had said in the interview in relation to those detentions in this way. He said: "The highest point of the matter simply demonstrated that there may have been an error in the date when the appellant left military service and it is plausible that he simply got the date wrong as there is no document stating that he in fact left military service when he claimed in his witness statement on 30 April 1999. In any event the dates of detention and release in my view, whilst of some importance, do not fundamentally undermine the appellant's account as the discrepancy that is referred to by the respondent is based upon the account given in interview. The interview itself in essence I discount as this is a record of interview that the appellant himself did not sign and the reason that he did not was that he was not given the opportunity to have it read back to him. This is clearly stated and recorded by the interviewing officer and it is a matter of some surprise that this was not refuted on the face of the document if it had indeed been read back to him and this was simply an unwarranted assertion by the appellant. The interview record therefore is not a reliable document upon which I can test the appellant's credibility".[7]The Secretary of State submits that where the interview has not been signed it is nonetheless inadequate for the Claimant to say that it is wrong and for the Adjudicator simply to treat the interview record as being unreliable on that account. The Secretary of State points out that not merely were the disputed dates the subject matter of specific questions at the interview, but that the Claimant had been asked whether he understood the interpreter, was content to be interviewed in Turkey and was, well, and contented to be interviewed on that date. The Claimant answered "yes" to those questions and confirmed at the end of the interview that he had understood the legal questions and the interpreter, and declined the opportunity to make any further comments.[8]He declined to sign the record of the interview because he was not given the opportunity to have it read back to him. It has been the case for a few years now that it is uncommon for interview records to be read back before the interviewee is asked to sign the interview record. The Claimant was, however, given a copy of the interview record and did not submit any further representations relating to the accuracy of the interview. Nor, following the refusal of his claim by the Secretary of State, did the Claimant make any complaint about the record of the interview in his grounds of appeal. He had had the interview record for nearly a month by the time he submitted the grounds of appeal.[9]The Secretary of State in his refusal letter had specifically raised the discrepancies between the accounts of the detentions given in the statement and given in the interview. It was not until a statement was later submitted something over a year later, that nay mention was made of the Claimant's contention that the record of the interview was not accurate, in respect of these matters, matters which it was plain were of real significance for the assessment of the credibility of the Claimant's evidence.[10]The approach of the Adjudicator is not one which Adjudicators should adopt. Adjudicators need to consider the circumstances in which the interviews are recorded, the commencement questions and the concluding questions deal with the interpreter, their ability to be interviewed and with whether they have anything further to add. It is also necessary for the Adjudicator when considering a claim that a passage in an interview is inaccurate, to consider what the questions were, what the answers were, how complex they seem, what the scope of rand of the misunderstanding might be, and the extent to which the questioning, in the course of the interview, has provided and opportunity for the interviewee to correct what has been said, whether such an opportunity is given explicitly or whether such an opportunity arises in the course of confirmatory, or other questions which the interviewer may ask.[11]It is necessary then for an Adjudicator to consider what explanation may be offered by the Claimant for the discrepancy and to consider whether or not, in the light of that explanation, the credibility of the Claimant is reinforced or made more doubtful. What is entirely inappropriate is for an Adjudicator to say that because an interview record has not been signed, and the reason given is that it has not been read back, it is on that account to be disregarded. It is fair to say, that in this respect Mr Norton-Taylor who appeared for the Claimant did not significantly take issue with the submission to the Secretary of State that the Adjudicator's approach to the interview record had been wrong, and that it was of significance for the assessment of credibility.[12]The second grounds of appeal which relates to the approach of the Adjudicator to family members, depends upon what was said:
"I form the view that as to the lower standard set out in Kaja there is sufficient evidence that this appellant originated from a family, several members of whom, have been granted refugee status presumable on the status [sic] of their political activity and their ethnic origin. It is perfectly plausible although the grants of asylum do not give the detailed reasons for that grant, it is safe in my view to the lower standard set out in Kaja to assume that the fact that the appellant is related to this family places him in a high category of people at risk, should be returned to Turkey at this time."
[13]The Secretary of State submits that the fact that family members had been granted indefinite leave to remain did not necessarily mean that they had been granted refugee status on the basis of political activity or ethnic origin. Although it is not unreasonable inference that Turkish Kurds who have been granted indefinite leave to remain, may have been granted indefinite leave to remain on the basis of political activity, and ethnic origin., the Adjudicator needed also to consider in the absence of any other information, whether the grant of indefinite leave to remain may have been on the basis of one of the backlog reduction exercises which the Secretary of State engages in, granting indefinite leave to remain, not on the basis of a consideration of the individual merits of their case, but on the basis of the length of time for which they had been in the United Kingdom awaiting a decision on their applications.[14]In any event, what is of real significance is this: even if a refugee status had been granted on the basis of political activity and ethnic origin in order for that to be of evidential value for the purposes of this Claimant's claim, it would be necessary to have a real understanding of the individual merits which had been engaged, and which had persuaded the Secretary of State, or the Appellate Authorities to grant refugee status. They might have been granted for reasons which were significantly at variance with those put forward by the Claimant. It was an illegitimate assumption for the Adjudicator to make that the grant of refugee status by itself, told anything of significance for the level of risk which the Claimant might face on return. Mr Norton-Taylor also accepted that there was substance in this ground and his essential contention that was that the matter should be dealt with by a fresh Adjudicator.[15]In relation to the Secretary of State's third ground, which relates to the assessment of risk, however, we have reached the conclusion that it would be unwise to take the Claimant's case at its highest, with the concerns that there were about the credibility of the Claimant in a number of respects.[16]It is not sufficiently obvious that the Claimant should be returned in the light of that material if his case, which included allegations of torture and suspicion of PSK activities, was taken at its highest. It will be for a fresh Adjudicator, in the light of the conclusions which he may reach on what the Claimant has to say, to consider the degree of risk on return in the light of the current background material and in particular the appraisal of that material by the Tribunal in the cases of O Turkey [2004] UKIAT 00038 , A Turkey [2003] UKIAT 00044 , and further case upon which Mr Parker placed reliance, A Turkey [2004] UKIAT 00050 .[17]For the reasons which we have given, this case is remitted to a fresh Adjudicator for determination and to that extent the Secretary of State's appeal is successful.[18]This case is reported for what we say about unsigned interview notes. MR JUSTICE OUSELY PRESIDENT 29.04.04