The decision


HA (Case citation: details required) Turkey [2005] UKAIT 00176

Heard: 30.11.2005
Signed: 01.12.2005
Sent out: 15.12.2005


John Freeman (a senior immigration judge)
Mr P Rogers JP and
Mrs E Morton


Secretary of State for the Home Department

Mr J Collins (counsel instructed by Sheikh & Co) for the appellant
Mr G Saunders for the respondent


This case is reported only for the guidance on citation of decisions of the Tribunal and courts given at § 3: the remainder of our decision can and should be disregarded.

This is a case where permission was given to appeal from a decision of an adjudicator (Mr DP Herbert), sitting at Taylor House on 8 September 2004, dismissing an asylum and human rights appeal by a Kurdish citizen of Turkey. Under the transitional provisions of the 2004 Act, the case proceeds as if it were a reconsideration following review by the Asylum and Immigration Tribunal; but only (see r. 62.7 of the 2005 Procedure Rules) on the grounds on which permission was given. These were that
a) the facts of the case arguably did not support the adjudicator’s findings; and
b) his approach might have been governed by what had previously been the leading ‘country guidance’ cases, which had been overtaken by more recent material.
2. The adjudicator’s approach to citation can most politely be described as rather cavalier: he relied mainly on A (Turkey) CG [2003] UKIAT 00034, but without giving the year or serial number at all (as well as the previous leading case of Hayser [2002] UKIAT 07083, without any citation whatsoever); then he referred to what appears to have been HO (National Records) Turkey CG [2004] UKIAT 00038, by a partial and incorrect citation, UKIAT 000380 (Turkey). While some may consider this a minor point, it is not best practice and does little to encourage that amongst representatives, qualified or unqualified, on either side; it also lays judges open to the suspicion, justified or not, that they have never actually read the decisions on which they purport to rely. It is particularly unfortunate when everyone in this field is having to cope with an anonymized reporting system which makes electronic searches much more problematic than they would have been with proper names. We shall try and give some guidance as to what ought to be done.
3. At least on the first occasion a case is mentioned, the name or initials, the court abbreviation, the year and serial number are required: other parts of the full citation, such as the country of origin or the ‘key-word’ may be added; but that is a matter of taste, as they do not help the searcher who has the rest. It is also just as well for decision-writers to show they realize whether it is a ‘country guidance’ or ‘starred’ case. In the above example, HO (CG) [2004] UKIAT 00038 would do1; but nothing less. Decisions of either the Tribunal or the courts reached since the advent of ‘neutral citation’ should always be cited under that system2: those from before should be given if possible from either of the sets of specialized reports likely to be most easily accessible to practitioners in this field3.
4. In this case the adjudicator was criticized in the grounds of appeal for not referring to more recent decisions of the Tribunal than those set out above: as it turned out by the time permission to appeal was given, this was of historical interest only, since these in turn had been superseded by IK (Turkey) CG [2004] UKIAT 00312, which remains the ‘country guidance’ case in this area. Mr Saunders wisely saw no useful purpose in pursuing the question of whether the adjudicator had followed orthodox doctrine as of the time he was writing; needless to say, there would be no mistake of law in failing to anticipate IK 04-312, though on the other hand that decision could help to support the view the adjudicator took of the situation at the date of the hearing before him, only a few weeks before that in IK 04-312.
5. In the event Mr Saunders restricted the grounds he pursued to § 3, which complained of the adjudicator’s § 59. This read:
I also find that it is likely that there would be some computerised record of this appellant’s detentions even if it were not to be recorded upon the GBTS system. It is inconceivable that a state which conducts such wide-scale repression, even of one’s legal party such as HADEP and who uses incarceration as a means of harassment.
Mr Saunders made some mild complaint of the grammar of the second sentence: we are not a court of syntax, and we think the less said about that, the better. His real complaint was that the adjudicator had referred to no evidence in support of his finding about the record, possibly not on GBTS. As Mr Saunders accepted, this could only amount to a material error of law by the adjudicator if both there were no evidence capable of supporting the finding; and that finding might have affected his decision on the case as a whole.
6. Mr Collins in turn complained that § 3 of the grounds raised not the non-GBTS records relied on by the adjudicator, but the question (which he had explicitly discounted) of whether or not there would be anything about the appellant on the GBTS itself. He described Mr Saunders’s relying on it in the way he did as “disingenuous”: whether he fully understood the meaning of this word, much ruder than it sounds, was not clear to us. For our part, we should prefer to describe Mr Saunders’s advocacy on this occasion as making the best he could of a bad job: while it may not have represented the best use of public time, it at least gave us the opportunity of reaching a reasoned decision.
7. There are a number of reasons why the point to which Mr Saunders found himself reduced cannot show any material error of law on the part of the adjudicator: we hope he will not mind us giving them in summary form.
a) Unhelpful as it was for the adjudicator not to cite the evidence on which he relied (and to which Mr Collins assured us he referred him) for the appellant’s likely appearance on non-GBTS records, the result he reached on this point was at least retrospectively validated by IK 04-312 at § 71-76.
b) § 3 of the grounds of appeal did complain of a finding the adjudicator had not made, as to the appellant’s appearance on GBTS.
c) The adjudicator’s finding on the records was not something on which he regarded his decision as turning: this was clearly enough shown by his beginning § 59 “I also find …”.
d) His reliance on the risk he found in the appellant’s home area was in line with IK 04-312, and not challenged in the grounds of appeal (drafted before that decision came out).
e) The concentration on that point in IK 04-312 means that, unless a finding of risk in the home area can be successfully challenged on its own terms, it is only open to collateral attack by challenging the finding (or the failure to make a finding) on internal flight, which again was not done in this case: the Tribunal in IK 04-312 also had a good deal to say about the internal flight alternative.
The original Tribunal did not make a material error of law and the original determination of the appeal stands.

John Freeman
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