(Immigration and Asylum Chamber) Appeal Number: DA/00859/2011
THE IMMIGRATION ACTS
Heard at Field House
on 30th April 2013
On 10th June 2013
UPPER TRIBUNAL JUDGE HANSON
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr Collins instructed by Montague Solicitors.
For the Respondent: Mr Nath Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
1. On the 9th January 2013 the Upper Tribunal found that a panel of the First-tier Tribunal erred in law, primarily in failing to make sufficiently detailed and proper findings in relation to the core element of the appeal. The finding the claim of detention and torture is disbelieved is not supported by adequate reasons. Such errors were found to be material and the determination set aside. The appeal comes before me today for the purposes of the Resumed hearing.
2. The preserved findings of the First-tier Tribunal are as follows:
28. We note that the appellant clearly stated in answer to question 3 of the asylum interview that he wanted to claim asylum and yet he only made the claim after enforcement action was taken. He was notified of the deportation order in the reasons for deportation letter dated 8 March 2011 and this triggered the asylum claim on 16 March 2011. There is a letter of instruction to Montagues Solicitors signed and dated 09.03.2011 and it was sent with the letter from them notifying the respondent of a pending asylum claim.
29. What the appellant stated in his witness statement was that at his criminal trial he raised the fact that he was afraid to return but no one advised him what to do, neither the Judge, not his solicitor nor his brother told him to claim asylum immediately, and it was only his current solicitor who advised him to claim asylum.
30. The appellant relies upon what the Judge remarked when sentencing him. The record shows that he said ‘You were determined to enter this country unlawfully, for reasons that have been explained to the court by Mr Barnett. I have been told that there are serious problems in the village where you live in Eastern Turkey, which you felt it was best to turn your back on’. The Judge went on to note that ‘To your credit, you have not sought to establish any fanciful defence, you pleaded guilty today, which has been the first opportunity open to you….’ and the Judge noted that the IM3 had been served upon him and there is an automatic deportation.
32. No complaint was made about the solicitor acting for him, no evidence has been produced by him about what was noted in his meeting with the appellant, to support the appellants claim that he raised asylum with his solicitor….. We accept the appellant experienced some problems in his village…
35. We read carefully the psychiatric report of Dr Chiedu Obuaya MBBS BSc MRCPsych. He examined the appellant for about 2 ½ hours on 27 July 2012 and for about 30 minutes over the telephone on 8 September 2012. He diagnosed PTSD on the following clinical features: the appellant had a delayed response to a series of stressful situations of an extremely threatening nature; he experiences trauma in the form of nightmares and intrusive thoughts related to the trauma; his is anhedonic; he has insomnia. The trigger was the detention in the UK upon his arrival and there was cumulative deterioration in his mental health following the three distinct traumatic experiences in Turkey. There is evidence that detention itself can have an adverse impact on the mental health of detainees. The fact that his wife was beaten by the Turkish authorities whilst he was in prison in the UK would contribute to further deterioration in his mental health.
36. The psychiatrist examines other factors, such as his difficult military service in Turkey, his separation from his country, and the entry and detention in the UK, but they cannot explain his core PTSD symptoms. We note that the doctor did not consider the other reasons given in the Screening Interview about how his car was scratched, and his tyres cut, and nobody wanted to work for him. It was almost impossible to continue working and he was going to have to work alone because nobody wanted to work for him. The work colleagues were threatened. He was in construction and in his asylum interview he said that his firm employed 10 to 20 men. We also have had to consider the sentencing Judge’s reference to serious problems in the appellant’s village, which were not interpreted by the Judge as constituting an asylum claim based upon ill treatment by the Turkish authorities.
37. The psychiatrist noted that the appellant had a fairly limited response to anti-depressants and suggests that trauma focused therapy will be required. He bases the length on the interrogation, and therefore little weight can be placed upon this estimate.
38. The psychiatrist considered the possibility that the appellant may have been feigning his symptoms, and concluded that the appellant was not experiencing all the possible symptoms and would have claimed to have been actively suicidal. He noted some inconsistencies in the presentation of the facts and concluded that they were in keeping with someone suffering from PTSD.
39. We note that the Medical Foundation letter of 23rd June 2011 confirms that the appellant has no physical scars on which a medical report could be based but that he is clearly suffering from psychological sequelae from his alleged torture in Turkey. The appellant said that following the first detention his father took him to a doctor at the Maras State hospital and he was prescribed antibiotics called Baraltin but could not remember the doctor’s name and he could not get evidence from the hospital or the doctor to confirm the visit. He had blood in his urine which was the reason for the prescription.
42. The background evidence clearly shows at paragraph 25.18 of the COIR that there are psychiatric clinics at state hospitals and there is one at Maras, and there is no issue that the appellant would be denied access to mental health care in his own country.
3. The chronology of events relied upon by the appellant is as follows:
5th May 1985 Appellant born
1992-2000 Appellant educated in the village.
2000-2001 Appellant attends “Lycee (secondary school) in Elbistan and becomes politically active, subsequently expelled from Lycee.
2005 Appellant begins his own construction business.
April 2007 Appellant arrested for the first time.
15th July 2008 Appellant marries.
March 2010 Appellant arrested for the second time.
September 2010 Appellant arrested for the third time.
17th October 2010 Appellant leaves Turkey and arrested at Gatwick airport and is subsequently charged with a criminal offence for which he is sentenced to 12 months imprisonment.
4. In his witness statement the appellant claimed he became involved in DEHAP when he went to secondary school  which was the Kurdish party at that time . His father had been involved in politics since the 1980’s and his brother Dogan was too . The appellant states he experienced problems in his own right after he began activities for DEHAP in Elbistan .
5. The appellant’s brother left Turkey in 2005 following marriage . The appellant travelled to the United Kingdom lawfully in 2006 to visit his brother where he remained for three and a half months before returning to Turkey .
6. The first arrest is alleged to have occurred on 20th April 2007 at his home. He states he was arrested by the Gendarmes as some of his friends had left the village to join the PKK. He was interrogated during which time he was stripped, beaten, and sprayed with cold water. He was eventually releases after three days without charge .
7. The appellant married on 15th July 2008. His wife lived in Germany at that time but returned to live with him in Turkey .
8. The second arrest occurred in March 2010. The appellant states he was distributing leaflets for the BDP in a café when Gendarmes entered the premises. They stated they had been told PKK leaflets were being distributed. The appellant claims he was beaten up at the Gendarmes station and interrogated, although released without charge the following day .
9. The final arrest was in September 2010. He was retuning from work when he was stopped. He was taken away to a building located up a stony road where he was accused of recruiting people for the PKK. He claims he was attacked and threatened with death. He was told he had to work for the authorities but when he refused he was given electric shocks. He was eventually released without charge [18-19].
10. The appellant claims he then remained in Elbistan until arrangements were made for him to leave for the United Kingdom which he did on 17th October 2010 using a false visa [22 -23]. He claims his wife was detained after he left and held for two nights before being released. He claims the authorities think he has joined the PKK.
11. In his oral evidence the appellant stated that the visa be used to enter the UK in 2006 had been obtained in Cyprus and was valid. He did not claim asylum in 2006 as at that time he did not have “huge problems”. His wife, parents and two siblings remain living in Turkey. One sibling lives in the village the other is constantly on the move. His wife returned to the village two to three weeks ago after having lived elsewhere. He claims she returned as she was no longer able to stay where she was as she did not want to. She was getting depressed and so left those relatives and returned home. His wife is in the village and he is able to speak to her on the telephone although she says nothing about the attitude of the Gendarme to her return.
12. The relative his wife stayed with is his mother’s sister who lives about 300km from the village. He and his wife maintained contact on a mobile telephone whilst at the relatives but now speak on a land line.
13. His wife was detained once. His father was not detained. His wife was never taken to the Public Prosecutors office or through the courts and neither was he.
14. The appellant claims he has a credible fear of the authorities on return to Turkey such as to entitle him to a grant of international protection. It is for him to substantiate his claim.
15. The appellant has not substantiated a claim that his family profile puts him at risk which was accepted to be the case by Mr Collins in any event.
16. The appellant attended school and completed his national service. He entered the UK lawfully in 2006 and retuned after three months or so with no claim to have experienced any difficulties on return although none of the claimed arrests had occurred at this time.
17. There are three specific incidents mentioned the first of which occurred in 2007. The village in which the appellant was born and lived in is in the South East of Turkey, in the Kurdish region. He claims to have supported DEHAP, the Democratic People’s Party which was a Kurdish nationalist party. On 17th August 2005 DEHAP announced its merger with the Democratic Society Movement (DTH) to form the Democratic Society Party (DTP). On 11 December 2009 the Constitutional Court closed the DTP party for its association with the PKK terrorist organization and imposed a 5-year ban from politics on thirty seven of its members. The remaining elected officials reunited under the Peace and Democracy Party (BDP). It is plausible that an association or perceived association with organisations deemed to be against the interests of the Turkish State, especially in the Kurdish regions, could lead to detention and ill-treatment as alleged.
18. The appellant claims that in 2007 he was arrest at his home as others had left the village to join the PKK. The country material refers to round ups and raids by the authorities and ill-treatment in detention, of the type described by the appellant, during interrogation. The Turkish COIR for 9th August 2010 records:
8.18 The USSD Report 2009 reported that “[t]he law prohibits arbitrary arrest and detention; however, the government at times did not observe these prohibitions.”[5i] (Section 1d, d. Arbitrary Arrest or Detention) The same source went onto explain:
“During the year police routinely detained demonstrators for a few hours at a time. Police detained several hundred members of the former DTP [Democratic Society Party] and its successor Peace and Democracy Party (BDP) on various occasions. Police continued to detain and harass members of human rights organizations, media personnel, and human rights monitors. Police continued to detain persons on suspicion of ‘membership in an illegal organization’ and for ‘promoting terrorist propaganda’." [5i] (Section 1d, d. Arbitrary Arrest or Detention)
19. Roundups were commonplace as was the use of torture and other illegal means to extract confessions and information. The country information also notes that many were released although others were charged and brought to trial on charges of membership of illegal organisations or being involved in terrorist organisations/activities. The appellant was not charged and was always released.
20. Three years later, in March 2010, he was detained again. I accept that even though he was distributing leaflets for the BDP, a legal party in Turkey at that time, it is plausible he would have been detained if the authorities were told he was distributing leaflets for the banned PKK. The fact he was only detained for a short period of time and then released the following day without charge is indicative of a lack of interest in him as a person perceived to be a threat to state interests.
21. His final period of detention occurred in September 2010 some six months later. This resulted in his being detained and taken to premises in an isolated location which is plausible when considering the country information which speaks of such locations being used by the authorities as places of ‘unofficial detention’. It is plausible in such a situation the appellant would have been tortured, but again he was released without charge.
22. He claims he remained in Elbistan until he left for the UK in his first witness statement but also states he travelled to a major city before leaving via Izmir Airport which is in the west of the country elsewhere in his evidence. He left using his own passport with the false UK visa.
23. My primary finding, having considered the appellants claimed detentions and specific alleged methods of ill-treatment, the country material and conditions at that time, the medical evidence, and the background material provided in his bundle relating to the experiences of Kurds in that area of Turkey, and applying the lower standard applicable to appeals of this nature, is that he has substantiated his claim to have been detailed on three occasions when he was questioned and ill treated although released without charge or any conditions being imposed upon him such as reporting conditions each time.
24. The question for me to consider, however, is whether he is at risk on return now, in 2013, sufficient to entitle him to a grant of international protection.
25. In the case of Fatih Andic  EWCA Civ 557 the Court of Appeal said that it was no flaw of reasoning to conclude from the fact that the applicant had been released without charge after each detention that the Turkish authorities had no further interest in him.
26. In IA and others (Risk-Guidelines-Separatist) Turkey CG  UKIAT 00034 the Tribunal refined the factors which “inexhaustively” they considered to be material in giving rise to potential suspicion in the minds of the authorities concerning a particular claimant. In the latest case of IK (see below) the Tribunal said that these still have some relevance. In IA the Tribunal said that an Adjudicator needed to consider:
i) The level, if any, of the Appellant’s known or suspected involvement with a separatist organisation:- This appellant has not substantiated any claim to have been a member of a banned separatist organisation or to be suspected of being so, such as to place him at risk on return.
ii) Whether the Appellant has ever been arrested or detained and if so in what circumstances:- See above.
iii) Whether the circumstances of the Appellant’s past arrests and detentions, if any, indicate that the authorities did in fact view him or her as a suspected separatist:- The detentions do not demonstrate that the authorities viewed the appellant as being a credible suspected separatist. The first detention appears to have resulted from a raid on the village to find others, the second as a result of inaccurate information relating to leaflets he was distributing for a legal political party and the third based upon an allegation he was recruiting for the PKK after which he was released, which he would not have been if he was suspected of assisting this group.
iv) Whether the Appellant was charged or placed on reporting conditions or now faces charges:- He was never charged or placed on any conditions when released. There is no evidence he faces any charges now.
v) The degree of ill-treatment to which the Appellant was subjected in the past:- The appellant describes beatings and methods of torture it is known were used by the authorities in Turkey. He sustained no scarring but required medical treatment after the first detention by way of antibiotics. The medical evidence is indicative of psychological rather than physical injury.
vi) Whether the Appellant has family connections with a separatist organisation such as KADEK or HADEP or DEHAP:- The appellant claims his father and brother were politically active although also stated his father was not arrested when his wife was as the authorities were looking for the younger people. I comment upon the lack of evidence that family profile will place him at risk elsewhere.
vii) How long a period elapsed between the Appellant’s last arrest and detention and his departure from Turkey. Whether the Appellant was under surveillance or monitored after his last arrest:- The appellant claims he remained in his home area for two to three months before leaving for the UK. There is no evidence he was kept under surveillance or monitored after any of his arrests.
viii) Kurdish ethnicity:- the appellant is of Kurdish ethnicity.
ix) Alevi faith:- the appellant is not of the Alevi faith.
x) Lack of a current up-to-date Turkish passport:- The appellant entered the UK using his own passport and states in his screening interview that he also had his NUFUS Card and driving licence with him.
xi) Whether there is any evidence that the authorities have been pursuing or otherwise expressing an interest in the Appellant since he or she left Turkey:- the appellant claims his wife was detained for two nights after he left and asked about his presence. There is insufficient evidence to substantiate an ongoing interest in him despite regular contact with family members in Turkey. I also note his oral evidence that his wife has returned to their home village with no repercussions or evidence of adverse interest being taken in her based upon a desire to find the appellant. There is no evidence of valid arrest warrants being issued or judicial proceedings being commenced against him at any time.
xii) Whether the Appellant became an informer or was asked to become one:- he claims he was asked but was tortured when he refused. He does not claim he was asked again or agreed to be an informer.
xiii) Actual or perceived political activities abroad in connection with a separatist organisation:- there is insufficient evidence to substantiate a claim to have been involved with separatist organisations in the UK sufficient to place him at risk on return , or at all.
xiv) Whether the Appellant is a military draft evader:- he is not as he completed his military service.
27. The case law also makes it clear that these factors should not be treated simply as a checklist and that none of these factors is necessarily determinative of the issue.
28. The issue of risk on return was considered further in the case of IK (Returnees-Records-IFA) Turkey CG 2004 UKIAT 00312. The following is a summary of the Tribunal’s main conclusions in this determination.
i) The GBTS 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.
ii) In addition, there is border control information collated by the national police (Department for Foreigners, Borders and Asylum) recording past legal arrivals and departures of Turkish citizens, and information about people prohibited from entering Turkey as a result of their activities abroad, collated by MIT. (Note a returnee who arrives with a one way emergency travel document and about whom there is no record of a previous legal departure is likely to be perceived as a failed asylum seeker and is likely to be taken to the police station at the airport for further questioning rather than just waved through.)
iii) The Judicial Record Directorate keeps judicial records on sentences served by convicted persons, separate from GBTS. The system is known as “Adli Sicil.” It is unlikely that this system would be directly accessible at border control in addition to the information in the GBTS.
iv) 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 and if any of the people listed have been stripped of nationality. There is no evidence that it is directly available at border control.
v) 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. Also, if the circumstances so justify, an enquiry could be made of the anti terror police or MIT to see if an individual is of material interest to them.
vi) If there is a material entry in the GBTS or in the border control information, or if a returnee is travelling on a one-way emergency travel document, then there is a reasonable likelihood that he will be identifiable as a failed asylum seeker and could be sent to the airport police station for further investigation.
vii) It will be for an Adjudicator in each case to assess what questions are likely to be asked during such investigation and how a returnee would respond without being required to lie. The ambit of the likely questioning depends upon the circumstances of each case.
viii) The escalation of the violence following the ending of the PKK ceasefire reinforced the Tribunal’s 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 paragraphs 90 and 116 of the determination.
ix) The Turkish Government is taking action in legislative and structural terms to address the human rights problems that present a serious obstacle to its membership of the EU. It has made its zero tolerance policy towards torture clear. However the use of torture is long and deep-seated in the security forces and it will take time and continued and determined effort to bring it under control in practice. It is premature to conclude that the long established view of the Tribunal concerning the potential risk of torture in detention as per IA and others (Risk-Guidelines-Separatist) Turkey CG 2003 UKIAT 00034) (also known as ACDOG) requires material revision on the present evidence. However the situation will require review as further evidence becomes available. For the time being as in the past, each case must be assessed on its own merits from the individual's own history and the relevant risk factors as described in paragraph 46 of IA and others (Risk-Guidelines-Separatist) Turkey CG 2003 UKIAT 00034) (also known as ACDOG) .
x) Many of the individual risk factors described in IA and others (Risk- Guidelines-Separatist) Turkey CG 2003 UKIAT 00034) (also known as ACDOG) comprise in themselves a broad spectrum of variable potential risk that requires careful evaluation on the specific facts of each appeal as a whole. The factors described in IA and others (Risk- Guidelines-Separatist) Turkey CG 2003 UKIAT 00034) (also known as ACDOG) were not intended as a simplistic checklist and should not be used as such.
xi) 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, the Tribunal concluded that it would in most 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 of the determination.
xii) 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 IA and others (Risk-Guidelines-Separatist) Turkey CG 2003 UKIAT 00034) (also known as ACDOG) . If he does not then he is unlikely to be at any real risk anywhere in Turkey.
xiii) 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.
xiv) This determination was intended to update and replace the various earlier decisions in the light of further evidence and argument, and now comprises the Tribunal’s current country guidance on the issues described.
29. The appellant will be returned on his own passport if valid, or an emergency travel document. Even accepting his case at its highest I find he has not substantiated a claim that there will be anything adverse on the GBTS. He was never arrested in the sense of that term requiring court intervention.
30. In relation to the border control information, he returned in 2006 lawfully and exited via Izmir airport in October 2012 using a valid Turkish passport. It is likely that what will be recorded is therefore legal entry and exit. As such IK indicates he is likely to be waved through.
31. There have been no prosecutions and so no adverse information will be recorded with the Judicial Record Directorate and even if detained and questioned as a failed asylum seeker there is insufficient evidence to substantiate a claim that records exist of his being of adverse interest.
32. I find the appellant has not substantiated a claim that he will be detained on arrival and I find he will be able to leave the airport.
33. In R (on the application of Baydak) v SSHD  EWHC 244 Judge Mackie QC said that IK made it clear that an assessment of risk on return should begin by deciding whether there was a well founded fear of persecution in the claimant’s home area based on an analysis of the risk factors described in IA. If the claimant was not at such risk, then it was unlikely that he or she would be at any real risk elsewhere in Turkey, in terms of internal relocation.
34. The IK assessment supports the respondent’s claim that the appellant can return to Turkey and that he faces no real risk of ill-treatment or persecution in his home area. He is not formally wanted and his wife has returned to his home village without suffering adverse attention.
35. IK refers to the breakdown of a ceasefire with the PKK. A further cease fire was agreed between Abdullah Ocalan, the leader of the PKK, and the Turkish government shortly before this hearing but it is too early to find this material to the outcome. This issue may have to be considered by the relevant country guidance team in due course. It is, however, relevant as an indication of the developments in Turkey in relation to Kurdish issues at this time.
36. I also note the fact there is a relative who lives 300km from the village who the appellant’s wife lived with until recently. It has not been shown the appellant and his wife will not be able to live there if unable to return or that it will be unreasonable in all the circumstances for him to relocate internally if he does not want to return to the village or his relative is unable to assist. Kurds live throughout Turkey and the appellant has a skill as a builder and ran his own firm. There is nothing to indicate he will face a real risk if he registers elsewhere as his difficulties are associated with the locality of his village and Kurdish issues. The lack of state interest in him beyond the three detentions for localized issues does not substantiate a claim to be at risk in all of Turkey.
37. I have considered the fact that in NS v SSHD  EWCA Civ 802 the Court of Appeal said that it was necessary for the judge having ticked off all the points listed in IA and IK that might cause trouble for a failed asylum seeker returning to Turkey to stand back and take a view as to whether they might cumulatively give rise to a risk, when individually they did not. I have done so and on these facts I find they do not. Any subjective fear the appellant may have is not objectively well founded.
38. The appellant has failed to substantiate his claim to be entitled to be recognised as a refugee as he has not proved he will be persecuted for a Convention reason or face a real risk of ill-treatment on return in all of Turkey. His claim for humanitarian protection and under Articles 2 and 3 ECHR falls for the same reason.
39. The appellant has not proved he can satisfy the high threshold of Article 3 on the basis of his mental health issues as treatment is available in Turkey as the First-tier Panel found. In relation to Article 8 this was not argued strongly before me. The appellant will have a private life with his brother and others in the UK but having assessed such ties I find the respondent has proved the decision is proportionate in all the circumstances of this case.
40. None of the exceptions contained in the UK Borders Act 2007 are made out. The appeal is dismissed.
41. The First-tier Tribunal Panel materially erred in law. I have set aside the decision of the original Panel. I remake the decision as follows. This appeal is dismissed.
42. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
Upper Tribunal Judge Hanson
Dated the 7th June 2013