Tribunal decisions

The decision

MG (Fast Track - Accuracy of Country Material) Turkey [2004] UKIAT 00070
IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 19 September 2003
Date determination notified: 22 September 2003

Before:

MR G. WARR Chairman
MR A A LLOYD JP
MRS E HURST JP

Appellant

and

THE SECRETARY OF STATE Respondent

DETERMINATION AND REASONS
1. The Appellant, a citizen of Turkey, appeals the determination of an adjudicator (Mr P D King) dismissing appeal against the refusal of the respondent to grant application for asylum.

2. Before us, the Appellant was represented by Ms A Dar Howe & Co.. Mr S Ouseley appeared for the Respondent.

3. The appeal is governed by the Immigration and Asylum Appeals (Fast Track Procedure) Rules 2003.

4. The appellant is a Turkish Kurd. He arrived in the United Kingdom on 28 August 2003 and applied for asylum. The date of the Secretary of State's decision iis 2 September 2003. The matter came before the adjudicator on 9 September 2003.

5. The appellant said he was a supporter of HADEP and became a member of DEHAP on 20 May 2003.The appellant complained of two arrests involving very short periods of detention and ill-treatment in 1999. He had undertaken military service between August 2001 and January 2003. It was the appellant's case that there had been a third detention on 7 August 2003 because he was collecting a petition for the Amnesty Law. He was detained again for a very short period.

5. In the Secretary of State’s letter giving reasons for refusing the appellant's application it is stated in paragraph 14 as follows:

“Additionally, the Secretary of State notes your claim that you were arrested while collecting a petition for the Amnesty Law. The Secretary of State is aware that the Amnesty Law was adopted by the Turkish Parliament on 8 December 2000, and was expanded on 18 July 2001. (CIPU April 2003 paras 5.43-5.50). The Secretary of State does not find it credible that given your claim that you were collecting a petition for the Amnesty Law the police would have the interest in you that you allege.”

6. The adjudicator accepted the account of the earlier detentions (subject to some exaggeration of the ill-treatment suffered) but rejected the account of the third detention broadly for the reasons given by the Secretary of State. He found in paragraph 42 that “the circumstances as described by the appellant would seem therefore not to fit the objective material and for that reason I do not find the incident in August 2003 happened in the way described or at all.”

7. On 18 August 2003 the Home Office Turkey Bulletin 2/03 was published. This refers to the Turkish Parliament approving a “controversial bill granting partial amnesty to Kurdish militants.” It came into force on 6 August 2003.

8. Unfortunately no one drew this Bulletin to the attention of the adjudicator. Mr Ouseley acknowledged it was extremely regrettable that this happened but submitted that the adjudicator's conclusions could nevertheless be upheld. The adjudicator had had other valid reasons for finding that the appellant had not been arrested and detained on 2003, for example, the absence of medical evidence and the appellant's vagueness about the Amnesty. Ms Dar, for her part, submitted that the appeal should be allowed on the basis of the adjudicator's findings as to the first two detentions even if the Tribunal was not minded to reverse the adjudicator's conclusions as to the third detention. She had made some reference to the amnesty in her skeleton argument.

9. It is important to bear in mind that this case is governed by the Fast Track procedure. In those circumstances it is extremely important that the adjudicator is not misdirected by the Secretary of State as to the objective evidence. In the ideal world such mistakes would be put right. In the standard appeal procedure the error might well have been spotted and corrected. However, where each stage in the appeal process must follow so swiftly, there is a need to be especially vigilant. The adjudicator's approach was quite clearly based on the Secretary of State’s mistaken point on the background material. Moreover, the bulletin 2/03 had been published prior to the refusal letter so it makes the Secretary of State’s mistake doubly embarrassing. Given the correct information, the appellant might claim that his political activism was not inconsistent with the background material. The Secretary of State was represented before the adjudicator and so there was a further opportunity to put matters right at the hearing. Ms Dar says the point was raised in her skeleton argument but we have to say not particularly clearly. However, in our view, such criticism as it is appropriate to make in such a case is to be levelled at the respondent and Mr Ouseley, to be fair, did not argue to the contrary.

10. Ms Dar argued that the appellant was entitled to succeed on the basis of the findings made by the adjudicator in his favour. However, the case of ACDOG [2003] 00034 (Turkey) on which she relied should not be approached on the basis that an appellant’s case is to be determined on the basis of completing a checklist – see paragraph 47 of the determination. Whether the appellant is at risk depends on an overview of all the material. In this instance, the Secretary of State unwittingly put an obstacle in the way of the appellant. This contributed to the adjudicator assessing the risks on return on the footing that the appellant had not been arrested since 1999 rather than August 2003, the month of his arrival. While there may well be many difficulties in the way of the appellant succeeding it cannot be assumed that the adjudicator's decision would have been the same had the mistake not been made.

11. We have reached the conclusion that the matter should be remitted for a fresh hearing in fairness to the appellant.

12. The appeal is allowed to the extent that we remit the case to be determined afresh by an adjudicator other than Mr P D King.

Appeal allowed
G. Warr
Chairman

19 September 2003