Tribunal decisions

The decision

IR (Proper _ Finding) Turkey [2004] UKIAT 00060

IMMIGRATION APPEAL TRIBUNAL

Date heard: 25 March 2004
Date notified: 05 April 2004
Before:-.

DR H H STOREY (VICE PRESIDENT)
MR M L JAMES

Between

Appellant

And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Turkey – adjudicators- proper findings
Representatives
Ms N Nnamani of Counsel instructed by Howe & Co Solicitors for the appellant; Ms C Hanrahan for the respondent.

DETERMINATION AND REASONS
1. This case is reported in order to reiterate yet again the necessity for adjudicators in Turkish cases to make properly reasoned and clear and consistent findings of fact. The appellant, a national of Turkey, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr J D L Edwards, dismissing the appeal against the decision by the respondent giving directions for removal following refusal to grant asylum.

2. By his glaring failure to make proper findings of fact the Adjudicator in this case has given us little choice but to remit. At paragraph 25 first four lines he stated that he did not find the appellant’s account credible and at sub paragraph 25 (g) he added that by virtue of there being “so many unlikely features to his account” he could not even accept “certain aspects” of his case. Yet in the body of paragraph 25 and at paragraph 28 he then appeared to accept, on the basis of no reasons whatsoever, that the appellant was a HADEP supporter who had vague links, albeit quite old, with the PKK and who had been arrested and detained on three occasions. Despite earlier appearing to doubt whether the appellant’s claimed brothers were in fact his brothers, he then went on to consider the relevance of their evidence on the basis that they were in fact his brothers. Possibly that might have been a valid step had he then examined their evidence – which showed that two of them had been accorded refugee status - adequately; but in fact he did not.

3. Then at paragraph 28 he said: “There is no evidence of any particular surveillance targeted on him…He remained in the country for a long time, with his identity being checked by the authorities without attempting to leave”. His reference here to “[n]o evidence” is extremely difficult to square with the appellant’s witness statement evidence, which the Adjudicator himself inaccurately touched upon at paragraph 18. This was to the effect that he had been subject after his last release from detention to continuous searches of his café, raids on his house and questioning on the street.

4. The difficulty raised by the Adjudicator’s mixture of unreasoned acceptance of key parts of the appellant’s account with poorly explained rejection of other key parts is that if the appellant’s case was taken at its highest and it were accepted that there had indeed continued to be continuous harassment of him by the authorities, he might have been able, at least arguably, to succeed under the criteria set out in ACDOG. In addition Miss Nnamani had adduced recent documentary evidence which might be relevant to a consideration of whether the Tribunal determination in O [2004] UKIAT 00038 (dealing with the GBST system) fully reflected the recording systems that would exist in respect of someone who (like this appellant) had been fingerprinted. Miss Nnamani said she would be content with a remittal in this case, but her submissions in respect of these materials do merit further consideration at the remitted hearing.

5. We can only hope that the next Adjudicator will pay rather more heed to the Tribunal’s frequent warning about the need for adjudicators in Turkish cases to make proper findings of fact: see ACDOG [2003] UKIAT 00034 paras 40-41 and [2003] 00072 U (Turkey). Presumably the all too common failure to make proper findings arises out of a belief that, even if a claimant’s account is largely or fully accepted, it can be said that a claimant is not at risk on return in any event. In our view that is rarely a safe assumption to make in Turkish cases; and, in the context of Turkish cases, the general advice against making “even if” findings contained in the Court of Appeal judgment in He [2002] Imm A R 590 continues to have particular force.

6. For the above reasons the appeal is allowed to the extent that it is remitted in accordance with Rule 22 of the Immigration and Asylum Appeals (Procedure) Rules 2003 to be heard by an adjudicator other than Mr J D L Edwards.

DR H H STOREY
VICE-PRESIDENT