Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06995/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 November 2016
On 23 November 2016

Before

UPPER TRIBUNAL JUDGE SMITH

Between

H S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Hena, Counsel, instructed by Virgo solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. It is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Background
1. The Appellant appeals against the Respondent's decision dated 31 March 2015 refusing his protection claim. His appeal against that decision was allowed by First-tier Tribunal Judge N M K Lawrence in a decision promulgated on 10 May 2015. The Judge was satisfied that the Appellant's account of past detention and ill-treatment as a Kurd in his home area in southeast Turkey was credible. He was therefore found to be at real risk of future persecution and his appeal was allowed on asylum grounds, humanitarian protection grounds and under Articles 2 and 3 ECHR.
2. The Respondent appealed against the First-tier Tribunal's decision on the basis that the Judge had failed to consider whether there was a possibility of internal relocation outside south-east Turkey. She relied on the Tribunal's decision in IK (Returnees-Records-IFA) Turkey CG [2004] UKIAT 00312 ("IK"). I pause to observe that no challenge was made by the Respondent to the finding that the Appellant is at real risk in his home area.
3. Permission to appeal was granted to the Respondent by First-tier Tribunal Judge J M Holmes by decision dated 9 June 2016. By a decision promulgated on 2 August 2016, Upper Tribunal Judge Canavan found that there was an error of law on the basis raised by the Respondent and set aside the First-tier Tribunal decision of Judge N M K Lawrence. She expressly reserved at [10] of her decision the finding that the Appellant is credible as to the past persecution suffered in and real risk to him on return to his home area. She listed the appeal for a resumed hearing with directions as to the further conduct of the appeal.
4. The Appellant's solicitors were directed to inform the Tribunal in writing by 10 August 2016 whether they intended to call further evidence from the Appellant in relation to the issue of internal relocation and whether an interpreter would be required. The Appellant's solicitors were also directed to serve a comprehensive bundle of up to date background material and any further evidence was directed to be served at least fourteen days before the resumed hearing.
5. In spite of those directions, the Appellant's solicitors failed to notify the Tribunal whether the Appellant would be called. As a result, at the first hearing before me on 26 September 2016, no interpreter was booked.
6. In addition, on 20 September (i.e. six days before the hearing and not fourteen), the Appellant's solicitors served an expert report of Ms Sheri Laizer which bundle also included two documents relating to the Appellant's liability to perform military service. The Respondent objected to the Appellant's reliance on these documents. I however indicated that I would permit the Appellant to rely on them but that I would adjourn to allow the Respondent time to consider them. I also directed a further witness statement from the Appellant dealing with the documents and any other evidence on which he wished to rely in support of his case regarding internal relocation. I also directed an exchange of skeleton arguments.
7. At the hearing on 14 November, the Appellant gave oral evidence further to his witness statement dated 4 October 2016. I also heard submissions from both representatives supplemented by their skeleton arguments dated 13 October 2016 and 28 October 2016 respectively. Ms Hena also produced the Home Office Country Information and Guidance in relation to military service in Turkey dated March 2016. I also had before me Ms Laizer's report, the documents relating to the Appellant's military service (see [6] above), the Home Office Country Information and Guidance in relation to Kurdish ethnicity in Turkey dated February 2016 and the Tribunal's decision in "IK".
The Appellant's evidence
The Appellant's evidence
8. The Appellant gave oral evidence before me through a Turkish interpreter. It was confirmed that he and the interpreter understood each other. The oral evidence was supplemented by the Appellant's written statement. In that statement, he indicated that he would not have a fear of military service were it not for his background both as someone with imputed links to the PKK and as a draft evader. He stated that he had an exemption from military service until 31 December 2015 which is confirmed by the documents which he produced and this is why he said he did not claim to be at risk on return initially for this reason. He also relied in his statement on the risk to him from registration elsewhere in Turkey.
9. The Respondent challenged the documents on which the Appellant relied as not genuine. Mr Staunton pointed to the lateness of production of those documents and the fact that the Appellant had not claimed asylum on this basis at an earlier stage. The Appellant says that he obtained the documents from his mother. There was an inconsistency in the Appellant's answers as to when he obtained the documents. In examination in chief he said that he obtained them "this summer". In cross-examination, he said that he obtained them before his First-tier appeal hearing. However, in re-examination he said that he received them in June or July but definitely after the First-tier appeal hearing. That inconsistency was not satisfactorily explained. However, I have considered the reliability of those documents against the other evidence in my findings below.
10. I note also on this topic that it is not entirely accurate to say that the Appellant did not raise the issue of his liability to perform military service at the appropriate stage. He did mention in answer to Q160 at interview that he had not performed his military service because he was in education and at Q161 that he went to the military service bureau with his education papers and they postponed it until 2016. At the time, he was preparing to go to university. He says in answer to Q162 that he postponed in 2012 and went to university in 2013. He states at Q165 that if returned to Turkey he would perform military service.
11. The Appellant said that, on return to Turkey, he feared that, because he would be identified as a draft evader, further investigations would reveal his imputed links to the PKK. He would face mistreatment by officers in the higher ranks if he was obliged to do military service as his past imputed political links would be discovered. He would be forced to carry out military service. He would be taken directly into the army. He could object but that would be "only verbal" and he would be forced into the army.
12. The Appellant also relied on what would happen to him if he had to register elsewhere in Turkey. He would have to register with the Mukhtar who would look into his past records and would discover his imputed links. He explained that, before he fled Turkey, the police had put him on reporting conditions. Those would emerge when registration checks were made. In order to obtain an identity card, he would be obliged to provide details of his place of birth, name, surname, parents' name and identification number. It would not be possible to live elsewhere without being registered.
Military Service Documents
13. The Appellant has produced two documents. The first is dated 15 October 2012 and states that the Appellant's "military service situation is clear until 31.12.2015". That is clarified by the statement that the end date of postponement is 31 December 2015. The reason for his postponement is stated to be "Article 36" and it appears from what is there said that this is linked to his graduation date of 8 June 2012.
14. The second document is headed "Roll Call Notification". According to the translation at least the document appears to be undated. However, as the Respondent noted in her skeleton argument, it refers to postponement ending in the future and it must therefore pre-date 31 December 2015. It further states that the Appellant must apply to the Military Recruitment Branch to comply with the call-up procedure between 31 January 2015 and 31 December 2015. It goes on to note that if the Appellant applies for roll call after the first referral date, a punitive procedure will be launched. That does not appear to make sense although may be due to an error in translation as paragraph six indicates that the Appellant will be subject to a punishment if he fails to comply with roll call or submit relevant documents. Paragraph five of the document notes that if the Appellant falls within certain groups, documents should be sent to the Recruitment Branch before 7 July 2015.
Report of Ms Sheri Laizer
15. Ms Laizer is an expert specialist, writer and broadcast journalist in relation to a number of countries including Turkey. She has produced a number of expert reports in appeals and further submissions in relation to Kurdish nationals and has experience of working with various Kurdish organisations. Her expertise was not challenged by Mr Staunton.
16. Ms Laizer notes at [3(ii)] of her report that the Appellant has not reported for military service and will be entered as a draft evader in the Turkish records system. As a result, she opines, his imputed PKK links and draft evasion will be identified anywhere in Turkey. She further opines at [3(vi)] that given the Appellants' imputed pro-PKK profile, internal relocation is impossible for the Appellant.
17. Ms Laizer refers to recent developments in Turkey which she says either have led or are likely to lead to a hardening of attitudes to the Kurds in Turkey. She points at [2(xvi)] to the fact that HDP Mayors have lost their positions and HDP MPs have been stripped of their immunity, in spite of the HDP's public condemnation of the coup. Two Kurdish MPS have been charged with "terrorist propaganda". She notes that the Appellant said in his original witness statement that he attended meetings led by one of those MPs. She notes that the Appellant might have been photographed or filmed by undercover Turkish police during those meetings although that opinion appears speculative. She also notes reports of Turkey waging an offensive against PKK militants in the south-east, following the collapse of a nearly two-year ceasefire in mid-2015.
18. Ms Laizer next considers how the Appellant might fare if forced to do military service. She suggests at [4(i)] that the army is divided and Kurdish soldiers are at risk of being sent to the frontline to fight fellow Kurds. The reports on which she relies however do not appear to contain any supporting evidence for that claim. They appear to focus on the round-up of those serving in the army following the coup on the basis of their suspected involvement in that coup. However, there is some support for her opinion in the Rudaw report of 4 February 2016 (footnote 23) and the Rudaw report of 3 February 2016 (footnote 24) which reports note the move by the Turkish army to send Kurdish conscripts into the Kurdish areas, a move which the local people "believe" to be a deliberate move by the Turkish authorities to discredit the PKK. She notes in that regard at [4(iv)] the risk to the Appellant from the PKK itself if sent to fight in the Kurdish area. She notes that the PKK does not check whether a person is Kurdish before targeting them.
19. Ms Laizer also says that the Appellant would risk identification of his past imputed PKK links as a result of conscription. This is the nub of the Appellant's argument in relation to the risk arising to him from military service. Ms Laizer points at [4(vi)] to the fact that the record keeping system in Turkey has improved even since "IK" and that the Appellant will therefore be identified from those records and identity checks as a draft evader. This will lead, she says, to identification of his links and the other risks to him which she identifies elsewhere in her report.

Country guidance case of "IK"
20. My attention was drawn to the following parts of the summary in "IK" which have or may have relevance to the Appellant's case:-
"[133] 1. The evidence of Mr Aydin (paragraph 32) accurately describes the defined and limited ambit of the computerised GBT system. It comprises only outstanding arrest warrants, previous arrests, restrictions on travel abroad, possible draft evasion, refusal to perform military service and tax arrears. "Arrests" as comprised in the GBTS require some court intervention, and must be distinguished from "detentions" by the security forces followed by release without charge. The GBTS is fairly widely accessible and is in particular available to the border police at booths in Istanbul airport, and elsewhere in Turkey to the security forces.
?
4. The Nufus registration system comprises details of age, residence, marriage, death, parents' and children's details, and religious status. It may also include arrest warrants ?
5. If a person is held for questioning either in the airport police station after arrival or subsequently elsewhere in Turkey and the situation justifies it, then some additional inquiry could be made of the authorities in his local area about him, where more extensive records may be kept either manually or on computer ?
?
8. The escalation of the violence following the ending of the PKK ceasefire reinforces our view that the risk to a Kurdish returnee of ill treatment by the authorities may be greater if his home area is in an area of conflict in Turkey than it would be elsewhere, for the reasons described in paragraph 90 and 116.
?
11. A young, fit, unmarried person, leaving his home area and seeking unofficial employment in a big city, may not feel the need to register with the local Mukhtar, at least at the outset. Many do not. However, given the range of basic activities for which a certificate of residence is needed, and which depend upon such registration, we conclude that it would in must normal circumstances be unduly harsh to expect a person to live without appropriate registration for any material time, as a requirement for avoiding persecution. This does not necessarily preclude the viability of internal relocation for the reasons described in paragraph 133.13 below.
12. The proper course in assessing the risk for a returnee is normally to decide first whether he has a well-founded fear of persecution in his home area based upon a case sensitive assessment of the facts in the context of an analysis of the risk factors described in A (Turkey). If he does not then he is unlikely to be at any real risk anywhere in Turkey.
13. The risk to a specific individual in most circumstances will be at its highest in his home area for a variety of reasons, and particularly if it is located in the areas of conflict in the south and east of Turkey. Conversely the differential nature of the risk outside that area may be sufficient to mean that the individual would not be at real risk of persecution by the state or its agencies elsewhere in Turkey, even if they were made aware of the thrust of the information maintained in his home area by telephone or fax enquiry from the airport police station or elsewhere, or by a transfer of at least some of the information to a new home area on registration with the local Mukhtar there. Internal relocation may well therefore be viable, notwithstanding the need for registration in the new area. The issue is whether any individual's material history would be reasonably likely to lead to persecution outside his home area."
21. The summary at sub-paragraph thirteen above finds its genesis in [116] onwards of the Tribunal's decision. Mr Staunton relies in particular on part of [119] which I cite in full:-
"[119] We have already identified some examples of the circumstances in which a person may have experienced serious ill-treatment in the past in areas of Turkey where the PKK was or now is active, but would not necessarily be at similar risk of such treatment elsewhere in Turkey where it is not, and where a different view of his history could be taken. They include examples of general intimidation by the authorities of the Kurdish population to discourage support for the PKK, or to clear whole villages. The evidence is that anything between some hundreds of thousands to some millions (depending on whose figures one uses) may have been displaced within Turkey as a consequence of this. However, outside the areas of PKK activity there will not be the same perceived need to undertake such intimidation or clearances and the authorities within the receiving areas will be aware of the tactics that led to this mass migration, and will be able to assess an individual's record in the light of it. Similarly, a person who was included on Mr Dil's list of local "ne'er-do'wells", against whom there was no evidence of PKK involvement, but who ran the risk of being detained for questioning whenever a PKK incident occurred in his vicinity, would not be at a similar risk in another area where the PKK was not active and where such incidents were much less likely to occur. These are just some examples of why differential risk can arise in different areas of Turkey."
22. Ms Hena for her part relies on the citation of the UNHCR guidance set out at [120] as follows:-
"Kurds and members of Christian minorities from the southeast Turkey do have an internal flight alternative outside the region? unless the case in question is of a prominent nature or is perceived by the authorities to have real or alleged links with the PKK or other main Kurdish parties. UNHCR considers that the group most likely to be exposed to harassment/prosecution/persecution are Kurds suspected of being connected with or sympathisers of the PKK?
In the context of internal flights "it is essential to find out if Turkish asylum seekers if returned would be suspected of connection to or sympathy with the PKK. In this case they should not be considered as having been able to avail themselves of an internal flight alternative"..in the UNHCR's perspective, if persecution emanates from state authorities then there is no internal flight alternative or relocation. The situation may look different with regard to village guards or people persecuted by non-state agents."
Submissions
23. Ms Hena summarised the Appellant's case as relating to what would happen to him on the basis of draft evasion and if he had to register in another part of Turkey. In either event, she said, checks would be made about his past and his previous detentions and the fact he was on reporting conditions when he left Turkey would be discovered. Since those detentions and reporting conditions were based on the authorities' suspicion of the Appellant's support for and links to the PKK, the discovery of his background would lead to a real risk of persecution in any other area of Turkey.
24. Ms Hena submitted that, although the case of "IK" is now of some vintage, the situation in the period under consideration there (2003) and the situation now bear some similarities. As such, the UNHCR guidance which the Tribunal considered in "IK" continues to have relevance (see [22] above). Here, the Appellant fears the authorities in his home area and there is therefore no internal flight alternative. The risk is from the State.
25. Ms Hena also submitted that, even without the risk arising from the Appellant's position as a draft evader, it would be unduly harsh to expect the Appellant to live in another part of Turkey without registering with the authorities in that other area. She pointed to what is said at [133.11] of "IK" ([20] above).
26. The fact that the Appellant has not completed his military service would also give rise to the risk of discovery of his past imputed links to the PKK. He would be mistreated by the higher ranks in the army and would be forced to fight on the front line against other Kurds.
27. In relation to military service, Ms Hena pointed to the case of Savda v Turkey (Application No 42730/05 - judgment 12 June 2012) ("Savda") summarised at 2.5.6 of the Home Office Country Information and Guidance Turkey: Military Service. She accepted that the Appellant's evidence was that, but for his past imputed links, he would be prepared to carry out his military service. However, because he would object to performing military service based on the risk arising from his personal situation, there would be an Article 3 breach.
28. In response to criticism by the Respondent of the Appellant's failure to provide a comprehensive bundle of background material in relation to the internal relocation position, Ms Hena pointed out that Ms Laizer's report contains extracts from and references in footnotes to the background material on which she relied. There would be little point in the Appellant replicating that exercise.
29. Mr Staunton invited me to find that the documents produced by the Appellant in relation to military service were not genuine and/or to place little weight on them. He pointed in particular to the inconsistencies in the Appellant's evidence in relation to how he had come by those documents (see [9] above). The issue of risk based on draft evasion was also raised at a late stage of the appeal and no satisfactory explanation had been given for this.
30. Mr Staunton invited me to find in any event that, even if the Appellant were liable to perform military service, this does not give rise to any real risk to him. The latest country guidance case relating to military service in Turkey is SD (military service - sexual identity) [2013] UKUT 612 which case concerns a risk arising from an individual being homosexual. That does not apply to this Appellant. Neither does he claim to be a conscientious objector. Savda is therefore of no relevance.
31. In relation to military service, the Respondent relies on R (on the application of) Sepet & another v Secretary of State for the Home Department [2003] UKHL 15 ("Sepet"). A refusal or failure to perform military service leads to a risk of prosecution and not persecution. If the Appellant faced punishment for evading military service, that would be because he evaded the draft and not because he is a Kurd with perceived PKK affiliation. In Sepet there was an express concession that the penalty for draft evasion was not disproportionate. The penalty for draft evasion now is a maximum of three years' imprisonment which is the same as that in force at the time of the judgment in Sepet. Mr Staunton invited me to conclude that the mere punishment of draft evasion is not such as to give rise to a real risk of persecution or in breach of Article 3 ECHR.
32. Mr Staunton invited me to disregard Ms Laizer's opinion that the Appellant is at risk of being sent to fight on the front line against other Kurds. He pointed out that this section of her report is unsourced. I should therefore give it little weight.
33. Mr Staunton invited me to find that it would not be unduly harsh to expect the Appellant to internally relocate within Turkey. It is a vast and populous country. The Appellant is a single, healthy adult male who has spent the majority of his life in Turkey.
34. In relation to the risk that by reason of registration or having to enlist for military service his background in his home area would become known, the Respondent invites me to note that the issue is not whether the Appellant's past would become known to the authorities in the area to which he relocates but whether that knowledge would put the Appellant at real risk of persecution in the relocation area. The Respondent notes that the fact finding at [10] to [14] of the First-tier Tribunal decision shows that the Appellant was involved in and arrested for very low level activity or scuffles with various allegations made against him. He was never actually charged with any offence involving links with the PKK. Mr Staunton placed the Appellant in the category of "local 'ne'er-do-wells'" identified at [119] of "IK".
Discussion and conclusions
35. I deal first with the Respondent's challenge to the Appellant's late reliance on draft evasion as being a reason why he fears return to another part of Turkey, both on the basis that as a result of checks, his background would be discovered and on the basis that, as a result of that discovery, he would face a real risk of persecution.
36. I share the Respondent's concerns about the Appellant's evidence in relation to how and when he came by the documents on which he relies as showing that he was obliged to enrol for military service by December 2015. I have noted at [9] above, the inconsistencies in that evidence which were not explained. I have also noted that at least part of one of the documents does not make any logical sense.
37. However, I am prepared to accept on the lower standard that the Appellant's military service was deferred until 31 December 2015 and he was obliged to perform military service after that date. That is consistent with what he said at his asylum interview and is also consistent with the background evidence as to when a person is obliged to carry out military service and how it can be deferred.
38. The Appellant does not claim that he is a conscientious objector. As such, the case of Savda is of little or no relevance. Nor do I accept, based on what is said in Sepet that the punishment for refusing to perform military service is of itself sufficient to give rise to a real risk of persecution or breach of Article 3 ECHR.
39. However, if I have properly understood the Appellant's case, this is based on what would be discovered about his background if he is identified as being a draft evader and/or if he has to register in another area of Turkey. I accept what is said by the Respondent about the distinction to be drawn between discovery of his background and that background giving rise to a real risk of persecution in another part of Turkey.
40. I turn then to consider what the authorities in another part of Turkey would discover if they made checks about the Appellant in his home area. My summary is based on [10] to [14] of the First-tier Tribunal decision. The authorities would discover that the Appellant was arrested and detained on no less than six occasions. The detentions in 2010 and December 2013 would be unlikely to excite adverse interest based as they were on a skirmish with another pupil at school and a fight with another man all based on the Appellant's ethnicity. However, there was an arrest in July 2013 followed by a series of three arrests within a six month period in 2014, just before the Appellant left Turkey. Those incidents appear to have been unrelated to any particular incident. Although those arrests were provoked by complaints from one individual who the Appellant later discovered was his neighbour, it is nonetheless the case that the authorities targeted the Appellant specifically because of suspected assistance to the PKK. Those incidents are in an altogether different category from the other two. They led to arrests and although the Appellant was released without charge he was, on the last occasion, made subject to a monthly reporting condition.
41. I am quite unable to accept the Respondent's contention that those show the Appellant only as a "local 'ne-er-do-well'" who is not specifically targeted by the authorities but simply one of a number of other people who are detained whenever there is an incident in the local area. The arrests in this case show a deliberate targeting of the Appellant by the local authorities in his home area, albeit based on complaints from one individual.
42. Nor can it be suggested that these were other than official arrests, particularly in light of the reporting conditions imposed on the last occasion. This is not therefore a case of rogue officers acting with impunity in the local area which pattern would be unlikely to be replicated in another part of Turkey. Bearing in mind what was said by the UNHCR in "IK" about the position where the persecution feared emanates from the authorities, I accept on the lower standard that discovery of the Appellant's past imputed links gives rise to a real risk of persecution elsewhere in Turkey. The risk of that discovery might arise in one of two ways - either because of the identification of the Appellant as a draft evader or because the Appellant would need to register in another area of Turkey. I note in relation to the latter the guidance in "IK" that to require a person to live in another part of Turkey without registration for an extended period would itself be unduly harsh.
43. In light of that finding, it is unnecessary for me to deal with any risk said to arise to the Appellant as a Kurd if he were forced into military service, absent his background.
44. The First-tier Tribunal Judge found that the Appellant is at real risk of persecution in his home area. That finding was expressly preserved before me. That risk would not be alleviated by relocation to another part of Turkey because of the risk that his past imputed links would be discovered. That discovery would, on the lower standard, give rise to a real risk of persecution by the authorities in the area of relocation. Internal relocation is not therefore an option. The Appellant has a well-founded fear of persecution in Turkey. I therefore allow his appeal.

Decision
The Appellant's asylum appeal is allowed

Signed Date 22 November 2016

Upper Tribunal Judge Smith