Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09373/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 November 2016
On 6 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

dondu sanci
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Baztram (Senior Counsel) instructed by Migrant Law
Partnership (Hoxton Street)
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Turkey of Kurdish ethnicity. In a decision sent on 29 June 2016 First-tier Tribunal Judge (FtT) Judge Traynor dismissed her appeal against a decision made by the respondent on 4 June 2015 refusing to grant asylum and to remove her by way of directions as an illegal entrant.
2. The appellant claimed to have suffered ill-treatment at the hands of the Turkish authorities on account of her husband's alleged involvement with the PKK. The judge did not find her account or those of her supporting witnesses credible.
3. The grounds of appeal level a number of criticisms against the judge's reasoning: that he relies on speculation and conjecture; fails to address the salient issues and errs in respect of the medical evidence, background material and country guidance. As regards country guidance, the grounds point out that in IK [2004] UKIAT 00312 one of the risk factors listed in the head note was:
"(f) Whether the appellant has family connections with a separatist organisation such as KADEK or HADEP or DEHAP".
Particular objection is taken to the judge's rejection of the evidence of the appellant's siblings, both of whom were granted refugee status after winning their appeals. It is argued that the judge erred in failing to observe the Joint Presidential Guidance on Vulnerable Witnesses.
4. I do not find that the grounds establish an arguable error of law.
5. As regards the assault on the judge's credibility findings, I am unable to agree that they rely on speculation and conjecture or are otherwise flawed. The reasons the judge gave for finding the appellant not credible were based squarely on a number of identified shortcomings in the appellant's evidence including major inconsistencies regarding her account of having fallen out with her parents, of who the father of the child was and of her having been raped in her parents' house.
6. The grounds seek to rely on the fact that the appellant's brother and sister, who both gave evidence at her appeal, had been found to be refugees by different constitutions of the First-tier Tribunal on appeal. It was said that they were subsequently granted asylum on the basis of the difficulties they had in Turkey with the PKK and the authorities. It is of course correct that a judge is expected to treat findings of fact made by a previous tribunal as a start point: see Devaseelan. But as Devaseelan makes clear, it remains a judge's duty to decide each case according to the evidence as a whole. In this case, the appellant's representatives did not produce the decisions of the First-tier Tribunal in the case of the appellant's brother and sister; and, in the absence of being shown what findings of fact were made in their case, the judge was certainly entitled not to accept uncritically their evidence as credible. Further, the evidence of the brother and sister was inconsistent with that of the appellant in more than one respect: see [71]-[72]. In such circumstances it was entirely open the judge to find:
(i) that their testimony as regards their own experiences was "simply that they were caught between the PKK and the government and that they were ultimately forced to flee from Turkey ..."; and that
(ii) he could not give any weight to their testimony in regard to the appellant's alleged past difficulties with the Turkish authorities or the PKK.
I shall return below to the specifics of their own experiences.
7. As regards the contention that the judge fails to treat the appellant as a vulnerable witness, it is correct that given the nature of her asylum claim (which included an allegation that she had been the victim of rape in Turkey), she stood to be treated as a vulnerable witness under the terms of the Joint Presidential Guidance Note. However, whilst the judge did not expressly identify her as such, I am satisfied that throughout the hearing the judge took particular care to assist her, to make due allowance for her in presenting her evidence. The issue of the appellant's memory had been identified by her at the asylum interview and the respondent had expressly addressed it in her reasons for refusal, noting that it arose only when the appellant was asked to explain discrepancies. The respondent noted at paragraph 15 of her decision letter that she had not provided any supporting evidence to demonstrate how her health affected her ability to provide a coherent account of her experiences. The judge was clearly aware of the difference between the appellant and the respondent on the question of her memory and forgetfulness and noted what she and her witnesses said about it in evidence: see, e.g. [25], [40]. The judge also summarised the opposing submissions he received on the issue: see [44], [45], [53]. The judge expressly addressed the issue in [75]. I consider that in that paragraph the judge gave adequate and sufficient reasons for concluding that the lack of coherence in her evidence could not be attributed to her memory difficulties.
8. It is contended in the grounds that the judge erred in failing to apply the country guidance set out in IK at paragraph (f) of the head note in particular. I am unable to agree. The grounds are correct to assert that the judge was obliged by his own findings to:
(i) assess her claim on the basis that they had had to flee Turkey because they were "caught between the PKK and the government"; and
(ii) to infer from this that they were perceived by the Turkish authorities, to be in some way connected with the PKK; and
(iii) to consider whether the appellant was at risk by virtue of being their family member.
However, I do not consider that the judge's assessment fell into any material error. As regards (i) and (ii), it would appear that that was indeed the factual basis on which he considered the case. As regards the question identified in (iii), I would accept, therefore that the judge should have addressed it fully, especially since he had cited the IK case earlier and said that he considered it ([61]). Against that, however, it is important to note first of all that the appellant never based her own claim to asylum on connections with her siblings - her claim was based on her own experiences and her connection with her husband, on both of which matters she was found not credible. In addition, her Counsel placed no reliance at the hearing on risk arising from connection with her siblings; only on connection with her husband. More important still, the guidance given in IK does not, as the grounds appear to assert, state that persons who have family connections with separatist organisations (which plainly must include the PKK) are a risk category. The guidance only lists it as one of several "risk factors".
9. Further, the judge did consider the issue specifically in relation to her siblings and clearly bore in mind that family connections in general were a relevant consideration, noting at [72] that:
"Similarly, the Appellant's brother's evidence informed me that the Appellant had just married when he left Turkey. He has been in the United Kingdom since March 2011 and he stated that the Appellant had never been involved with politics, but claimed that she was interested in politics because all of the family were involved. If there is any truth in what the Appellant's siblings have stated, then I find the Appellant would have given an account that her family, that is to say not just her brother and sister who are in the United Kingdom, but also her parents, would have experienced problems with the Turkish authorities prior to the Appellant leaving the family home in 2010/11 in order to marry against their wishes. However, it is the Appellant's testimony that no such untoward event occurred and it is particularly remarkable that, in all of her accounts, she did not mention that her brother and sister had left Turkey because of similar problems with the PKK and, in particular, the Turkish authorities." (Emphases added)
Whilst the judge should arguably have considered the family connections risk factor more fully, it is notable that there was no objective evidence placed before the Tribunal by either the respondent or the appellant to indicate that the Turkish authorities would subject a person such as the appellant to adverse treatment on return. The fact that she had failed to establish either a risk profile in her own right or one arising from her connection with her husband or parents coupled with the extremely unparticularised evidence given by the siblings, more than justified the judge in concluding that the appellant had not made out her claim in relation to family connections of any kind.
Notice of Decision
For the above reasons, the grounds of appeal do not identify a material error of law. Accordingly the decision of the First tier Tribunal to dismiss the appellant's appeal must stand.

Signed Date

Dr H H Storey
Judge of the Upper Tribunal