Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00903/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 September 2016
On 28 September 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

SG
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Panagiotopoulou, counsel instructed by Montague Solicitors
For the Respondent: Ms Z Ahmad, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against a decision of First-tier Tribunal Judge L K Gibbs, promulgated on 1 August 2016. Permission to appeal was granted on 18 August 2016 by First-tier Tribunal Judge Saffer.
Background
2. The appellant arrived in the United Kingdom on 23 June 2015, at Birmingham airport. He applied for asylum on arrival. The basis of the appellant's asylum claim is that he was a supporter of the HDP; in 2008/2009 he attended demonstrations and handed out leaflets and he was twice arrested while attending protests. The appellant left Turkey instead of reporting to the Turkish authorities as he was instructed when released from his second arrest.
3. The respondent rejected the appellant's claims in a decision dated 17 December 2015. In essence, the only aspects of his account which were accepted were his name, nationality, ethnicity and religion. The Secretary of State pointed to a number of inconsistencies between the account provided by the appellant during his screening interview and that given subsequently. Adverse comment was made regarding the appellant's failure to learn the Kurdish language given his claim to be a committed Kurdish rights activist. Furthermore, the appellant's ability to remain in his home area for over a year following his last claimed release suggested that his fear of the authorities was speculative.
4. In the course of the hearing before the First-tier Tribunal, the appellant gave evidence in Kurmanji. The judge concluded that the appellant was an unreliable witness owing, principally, to inconsistencies between his screening and substantive asylum interviews and as such he would be returned to Turkey with the profile of a Kurdish Alevi Muslim and no more.
Error of law
5. Permission to appeal was sought on the basis that firstly, it was arguable that the judge failed to reach findings in respect of core aspects of the appellant's claim, that being his alleged inability to converse in Kurdish and his father's membership of the BDP and support of HADEP; secondly, that the judge placed undue weight on the appellant's answers in the screening interview and did not assess his evidence in the round with reference to the background material; thirdly it was said the judge failed to have regard to the appellant's claim that he avoided the authorities by changing his address and remaining in hiding which explained why he had no further problems from the authorities; fourthly the judge failed to reach findings on the appellant's claim to have used a fake Turkish passport to travel to the United Kingdom and lastly, the judge made no reference to the risk factors referred to in IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312.
6. The FTTJ granting permission said as follows;
"I am satisfied that it is arguable that the judge materially erred in law by not fully engaging with material elements of the Appellant's claim that he had been in hiding prior to leaving on a false passport, spoke Kurmanji, and his father had previously been detained by the authorities for pro-Kurdish activity. All grounds may be argued."
7. The Secretary of State's response of 12 September 2016 stated that the respondent opposed the appeal; it was considered that the judge appropriately directed herself and that the judge accepted that the appellant was Kurdish Alevi Muslim but not that he was involved in any political activities. It was said that the judge was entitled to find that the appellant was not credible in respect of his claim.
The hearing
8. Ms Panagiotopoulou relied on the grounds. She argued that the judge had not taken into account that the appellant was in hiding, in relation to her findings regarding the appellant's ability to remain in Turkey for an extended period of time following his release from detention; that the judge did not take into consideration that the appellant had not left Turkey in his own name; she made no findings in relation to a material consideration, namely his use of Kurmanji during the hearing; there were no findings regarding the father's membership of the HDP and she had not taken into the explanation in the appellant's witness statement that his replies during the screening interview had not been recorded. There was also said to be a lack of reference to country conditions.
9. In response, Ms Ahmad relied on an extract from South Bucks Council v Porter (2) [2004] UKHL 33. She argued that the judge had considered all the evidence, made findings on the principal controversial issues and concluded that he was not credible. It was the appellant's account, during his screening interview, that he had used a passport in his own name to leave Turkey and the judge appreciated that it was said to be a false document. The issue of the father's membership of HDP was not a main issue in the case. Ms Ahmed argued that the judge had appreciated that the appellant gave evidence in Kurmanji and took no point in relation to this matter but in terms of his claim, full reasons were given for rejecting this. A different decision would not have been reached had every issue been addressed.
10. In reply, Ms Panagiotopoulou submitted that the majority of the judge's negative credibility findings related to differences between what the appellant said in the screening and substantive interviews and that undue emphasis was placed on this.
11. At the end of the hearing I announced that the judge made no material errors of law and I upheld her decision. My reasons are as follows.
Decision on error of law
12. The appellant's appeal turns on the inconsistencies between what it recorded at his screening interview and what he said at his substantive asylum interview. In essence, when he was screened on his arrival he stated that he had come to the United Kingdom to have "a more comfortable life;" adding that he had been threatened by the police and Sunni Muslims on 12 March 2014 while attending a protest against the massacre of Alevis. At part five of the screening interview, the appellant said that he had never been arrested; furthermore, there was no mention of periods of detention nor that he was a member of the HDP.
13. It was argued on the appellant's behalf that the judge erred in finding that he was of no real interest to the Turkish authorities because he had been able to safely remain in his home area for in excess of a year between his claimed release from detention and his eventual departure from Turkey. Ms Panagiotopoulou criticised the judge for not taking into consideration the appellant's evidence in his witness statement that he was in hiding. Indeed, at [5] the judge records that the appellant kept a "low profile." Yet, in paragraph 7 of his witness statement, while the appellant asserts that he "stayed in hiding," he proceeds to explain that this meant he "kept a low profile and did not get involved with any activities. It was not safe forever." There is no other explanation of what he meant by being in hiding. Accordingly, the judge did not err in recording that he kept a low profile, nor in finding at [23] that this alone did not satisfactorily account for the absence of problems for over a year, given that claimed to be wanted and that he was required to report to the authorities during this time.
14. A further criticism of the judge was that she concluded the appellant left Turkey using a passport which bore his name. Yet, this was the account he provided during his screening interview, at 2.1. At [23], the judge also took into account the appellant's claim that this was a false passport. Earlier at [16] of the decision and reasons, the judge set out her detailed reasons for rejecting the appellant's claim that his answers in the screening interview were either wrongly recorded or translated. There is no challenge in relation to these findings.
15. The respondent took issue with the appellant's apparent inability to speak Kurmanji, in that it was considered incredible that a Kurdish activist would be unable to speak Kurmanji. This was, in any event, one of the respondent's weaker points. The judge noted at the hearing that the appellant used a Kurmanji interpreter but did not go on to make favourable findings as a result. There was no requirement for her to do so and even if she had, this alone, would have been insufficient to outweigh the many negative findings she went on to make.
16. The appellant's claim that his father was a member of HDP was never a core part of his claim in view of the fact that he was relying on his own alleged political activities in Turkey. The principal issue was the veracity of the appellant's account as to his own experiences in Turkey. Between [16] and [23] of the decision and reasons, the judge sets out a plethora of reasons as to why she rejects the appellant's claim. At [24], she makes a global finding on the appellant's credibility, that "he is an unreliable witness." Furthermore, at [25], she states that the appellant's profile on return to Turkey was that of a "Kurdish Alevi Muslim, and no more." From the aforementioned findings it is patently obvious, that the only aspects of the appellant's account which the judge was prepared to accept were his nationality, ethnicity and religion. Ms Panagiotopoulou did not seek to argue that the appellant would be at risk in Turkey on this basis alone.
17. The judge was entitled to conclude that the appellant's account was not credible and her reasons for doing so were more than adequate.
18. I make the following anonymity direction:
"Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. "
Conclusions
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal is upheld.

Signed Date: 27 September 2016

Upper Tribunal Judge Kamara