Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02055/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st November 2016
On 28th November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

M C
(anonymity direction MADE)
Respondent

Representation:

For the Appellant: Mr I Jarvis, Home Office Presenting Officer
For the Respondent: Ms J Fisher, instructed by Gulsen & Co Solicitors

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State, I shall refer to the parties as in the First-tier Tribunal. The Appellant is a national of Turkey born on 25th May 1973. His appeal against automatic deportation under Section 32(5) of the UK Borders Act 2007 was allowed by First-tier Tribunal Judge Callow on asylum and Article 3 grounds.
2. The Secretary of State appealed the decision on the grounds that the judge had failed to apply relevant case law and had misdirected himself in law. Permission was granted by First-tier Tribunal Judge Page on 20th October 2016 on the grounds that it was arguable that the judge had made a material error of law by failing to apply relevant case law in relation to draft evasion or desertion in Turkey and therefore had erred in law in concluding that the Appellant would be at risk on return. Further, the judge had erred in law in finding that the Appellant faced a suicide risk in Turkey and allowing the appeal on Article 3 grounds.
Relevant case law
3. IK (Returnees - Records - IFA) Turkey CG [2004] UKAIT 00312:
"14. On this basis the Tribunal in A (Turkey) identified the potential risk factors to be taken into account. It concluded as follows:
46. The following are the factors which inexhaustively (sic) we consider to be material in giving rise to potential suspicion in the minds of the authorities concerning a particular claimant.
a) The level if any of the Appellant's known or suspected involvement with a separatist organisation. Together with this must be assessed the basis upon which it is contended that the authorities knew of or might suspect such involvement.
b) Whether the Appellant has ever been arrested or detained and if so in what circumstances. In this context it may be relevant to note how long ago such arrests or detentions took place, if it is the case that there appears to be no causal connection between them and the claimant's departure from Turkey, but otherwise it may be a factor of no particular significance.
c) Whether the circumstances of the Appellant's past arrest(s) and detention(s) (if any) indicate that the authorities did in fact view him or her as a suspected separatist.
d) Whether the Appellant was charged or placed on reporting conditions or now faces charges.
e) The degree of ill treatment to which the Appellant was subjected in the past.
f) Whether the Appellant has family connections with a separatist organisation such as KADEK or HADEP or DEHAP.
g) How long a period elapsed between the Appellant's last arrest and detention and his or her departure from Turkey. In this regard it may of course be relevant to consider the evidence if any concerning what the Appellant was in fact doing between the time of the last arrest and detention and departure from Turkey. It is a factor that is only likely to be of any particular relevance if there is a reasonably lengthy period between the two events without any ongoing problems being experienced on the part of the Appellant from the authorities.
h) Whether in the period after the Appellant's last arrest there is any evidence that he or she was kept under surveillance or monitored by the authorities.
i) Kurdish ethnicity.
j) Alevi faith.
k) Lack of a current up-to-date Turkish passport.
l) 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.
m) Whether the Appellant became an informer or was asked to become one.
n) Actual perceived political activities abroad in connection with a separatist organisation.
o) If the returnee is a military draft evader there will be some logical impact on his profile to those assessing him on his immediate return. Following Sepet of course this alone is not a basis for a refugee or human rights claim.
47. We cannot emphasise too strongly the importance of avoiding treating these factors as some kind of checklist. Assessment of the claim must be in the round bearing in mind the matters set out above as a consequence of a careful scrutiny and assessment of the evidence. The central issue as always is the question of the real risk on return of ill treatment amounting to persecution or breach of a person's Article 3 rights. The existing political and human rights context overall is also a matter of significance as will be seen from our assessment of the particular appeals in our determinations of those below. The particular circumstances that prevail today may not be in existence in 6 months' time for all we know."
"111. In saying this we emphasise that many of the individual risk factors described in A (Turkey) comprising 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 A (Turkey) were not intended as a simplistic checklist and should not be used as such. Thus not all detentions will be of comparable significance in assessing risk. For example, in the light of the positive developments in Turkey in recent years described above, there could be a considerate difference between the potential significance when evaluating present risk to a person who, say, was rounded up by many others in the course of Kurdish Newroz celebrations and held overnight before being released without charge, and a person who was ill-treated along with others in his village in implementation of the clearance programme in the Southeast on the one hand, and a person who was specifically and individually targeted and detained for reasons inherent in his personal history, and seriously ill treated over a more protracted period on the other hand. This comparison illustrates why we caution against a too simplistic approach to headline factors."
"118. In general terms however we consider that one should proceed when assessing the viability of internal relocation on the basis that an individual's material history will be in broad terms become known to the authorities at the airport and in his new area when he settles either through registration with the local Mukhtar or if he comes to the attention for any reason of the police there. The issue is whether that record would be reasonably likely to lead to persecution outside his home area."
"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 PPK was or now is active, but would not necessarily be at 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 PPK, 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 PPK involvement, but who ran the risk of being detained for questioning whenever a PKK incident occurred in his vicinity would not be at similar risk in another area where the PKK were not active and where such incidents were much less likely to occur. These are just some examples of why different risk can arise in different areas of Turkey."
"133. The following is a summary of our main conclusions in this determination
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.
2. 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.
3. The Judicial Record Directorate keeps judicial records on sentences?
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 and if any of the people listed have been stripped of nationality. There is no evidence that it is directly available at border control.
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. 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.
6. 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.
7. 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.
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 paragraphs 90 and 116.
9. 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 A (Turkey) 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 A (Turkey).
10. Many of the individual risk factors described in A (Turkey) 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 A (Turkey) were not intended as a simplistic checklist and should not be used as such.
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 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 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.
14. This determination updates and replaces the 7 decisions listed below, in the light of further evidence and argument, and now comprises the Tribunal's current country guidance on the issues described."
4. J v Home Secretary [2005] EWCA Civ 629
"25. It should be stated at the outset that the phrase 'real risk' imposes a more stringent test than merely that the risk must be more than 'not fanciful'. The cases show that it is possible to amplify the test at least to the following extent.
26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill treatment must 'necessarily be serious' such that it is 'an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment': see Ullah paras [38-39].
27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at para [91], the court said:
"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."
See also para [108] of Vilvarajah where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka?"
28. Thirdly, in the context of a foreign case, the Article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in para [49] of D and para [40] of Bensaid.
29. Fourthly, an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).
30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3.
31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights."
5. Y and Z (Sri Lanka) v SSHD [2009] EWCA Civ 362
"14. If a fear of ill-treatment on return is well-founded, this will ordinarily mean that refoulement (if it is a refugee convention case) or return (if it is a human rights case) cannot take place in any event. In such cases the question whether return will precipitate suicide is academic. But the principle leaves an unfilled space for cases like the present one where fear of ill-treatment on return, albeit held to be objectively without foundation, is subjectively not only real but overwhelming.
15. There is no necessary tension between the two things. The corollary of the final sentence of paragraph 30 of J is that in the absence of an objective foundation for the fear some independent basis for it must be established if weight is to be given to it. Such an independent basis may lie in trauma inflicted in the past on the Appellant in (or, as here, by) the receiving state: someone who has been tortured and raped by his or her captors may be terrified of returning to the place where it happened, especially if the same authorities are in charge, notwithstanding that the objective risk of recurrence has gone.
16. One can accordingly add to the fifth principle in J that what may nevertheless be of equal importance is whether any genuine fear which the Appellant may establish, albeit without an objective foundation, is such as to create a real risk of suicide if there is an enforced return."
First-tier Tribunal decision
6. The judge made the following findings:
"44. Country information reports lend weight to the Appellant's complaint of unlawful attacks on Kurds. In its December 2014 briefing paper for the Universal Periodic Review, War Resisters International (cited in the Respondent's recent OGN for Turkey) concluded that 'the dangers of apprehension for evasion or desertion have significantly increased in recent years as a result of the general information gathering system'. They further explained that 'During the last three months of 2013, 4,920 evaders were detained as a result of regular ID checks under the General Database System. This system also enables evaders including conscientious objectors to be immediately identified while carrying out transactions at banks, airports, health institutions etc.'.
45. In making his claim and persisting with his appeal the appellant has presented as a vulnerable person. He has told the truth about some matters, but not all; particularly the situation concerning members of his family who have been in the UK. However, at the lower standard it is accepted that the core of the appellant's claim as to being a draft deserter for the reasons given by him have been established. It is in these circumstances, drawing on IK and country information reports that the Appellant will be at risk on return. If he were to be returned it would be as a failed asylum seeker travelling on an emergency travel document. He would be encountered by border control and likely to be referred to higher authority. He could not be expected to lie about his past. Turkey is in state of high alert following the recent terrorist attack at Ankara airport, the attempted coup and the sensitive security situation with Syria to the south and east. All persons arriving at immigration control amidst heightened security will be carefully screened, not least of all a Turkish Kurd who left over 20 years ago. The risk of ill treatment despite avowed improvement remains. Accordingly the Appellant's claim for asylum succeeds."
"50. This is a foreign case and the Article 3 threshold in relation to the claimed suicide risk on return is therefore high. As to the first proposition outlined in J, the claimed severity of treatment has been established. There is causal link between the threatened act of removal and the inhuman treatment relied on as violating the applicant's Article 3 rights. As the Appellant's case is foreign case the particularly high threshold has been established. As he cannot safely relocate it has been shown that he has a genuine fear creating a risk of suicide. Both Turkey and the UK, in answer to the sixth proposition, have effective mechanisms to reduce the risk of suicide.
51. As it has not been shown that Turkey does not have mechanism to reduce the risk of suicide, the Tribunal should assume that the Respondent would provide appropriately qualified escorts on return. The Appellant's fear is extreme, relying on the evidence of Dr Moore, as to lead to sufficiently adverse consequences for his mental health on removal. The likely effect of the psychological trauma in this case if return is enforced, will be suicide. The Appellant's only perceived means of escapee from the isolation and fear in which return would place him, would be to take his own life; that there exists a local health service capable of affording treatment does not materially attenuate the risk which is subjective, immediate and acute. In the fact sensitive circumstances of this case the Appellant's return would in my judgement reach the high threshold of inhuman treatment unconditionally prohibited by Article 3."
Submissions
7. Mr Jarvis submitted that, although the Appellant was a draft evader, he would not be at risk on return to Turkey because there were no factors present in his case which were sufficient to put him at adverse interest to the authorities. There were credibility issues in relation to Section 8 and the judge concluded that the Appellant's claim to have been involved in political activity was not credible.
8. Mr Jarvis submitted that whilst it was accepted that Kurds were abused and mistreated in the southeast, there may not be a risk on relocation to another part of Turkey. There would only be a risk if an appellant's profile was such that they would still be of adverse interest once they were transferred. If the nature of the information about the person was sufficient to show that they had been involved in terrorist activity, then they would be conveyed to the terrorist police and therefore there would be a risk of harm.
9. Mr Jarvis relied on paragraphs 111, 118 and 119 of IK and submitted that there were certain risks in the home areas for 'ne'er-do-wells' that did not arise elsewhere in Turkey. However, the failure to do military service would give rise to prosecution not persecution. What was missing from the judge's analysis at paragraph 45 was why the Appellant's profile was sufficient to mean that he would be of adverse interest to the authorities. Being a Kurd was insufficient. What evidence was there that the Appellant would be persecuted rather than prosecuted? What was missing was why the Appellant would be ill treated as a draft evader.
10. Mr Jarvis submitted that the OGN [CIG] was referred to in the judge's decision at paragraph 44, but that this paragraph in itself did not refer to ill treatment. If the judge was saying, because of the heightened security situation, the Appellant would be at risk as a Kurd, there was no evidential basis for a finding of ill treatment. The judge deviated from IK because he said that being a Kurd was sufficient. The evidence in the country information reports was insufficient to show that the judge should deviate from IK. The judge needed to identify compelling and cogent evidence. This was not available because it was possible from the CIG evidence that a person could buy themselves out of military service. There was no evidential basis for the deviation from IK and no analysis of whether the Appellant could or could not get out of military service.
11. Mr Jarvis submitted that there were effective mechanisms in Turkey and the UK to prevent suicide. The judge found that there was an immediate and highlighted risk of suicide but he failed to analyse the situation in terms of J. The judge's finding on suicide risk was predicated on a finding of ill treatment. There was nothing before the judge to show that the Appellant could not receive medication or could not be treated. The adverse risk was not made out. The Appellant would not be at risk of suicide because he was not at risk of ill treatment. The circumstances of this case did not meet the threshold in Y and Z.
12. The Appellant had evaded the draft twenty years ago and there was no evidence of adverse treatment. The judge failed to consider other evidence such as the fact that the Appellant has family in Turkey, which was relevant to how he would cope if there was no risk of adverse treatment.
13. Mr Jarvis submitted that the finding of risk of suicide was not made out. The medical evidence in this case amounted to letters from the Appellant's GP (see A45 of the Appellant's bundle). It was not accepted that the Appellant's PTSD was caused by events in Turkey. The judge had not properly applied J and had not looked at the consequences of his finding when assessing the GP's letter. The GP had given some credence to the Appellant's past, but the judge had specifically rejected that. The adverse credibility findings reduced the effect of the GP's letter. The PTSD stemmed from what happened in the UK and was not the same as in Y and Z. This was an unusual case. The judge had deviated from IK and had not followed relevant case law.
14. For the Appellant, Ms Fisher submitted that the Tribunal, in IK, accepted that there was torture in detention and the judge in this case specifically referred to that finding at paragraph 42. The judge also quoted paragraph 14 of IK. Ms Fisher submitted that following IK there was evidence that torture and ill treatment took place in detention. The judge had gone through IK and the OGN [CIG] and found that the Appellant was a deserter. At paragraph 45 the judge assessed all the evidence. From the summary in IK, torture does occur in Turkey. The courts have accepted that it does happen and the Appellant only has to show a real risk. The CIG at paragraph 7.3.1 gives a full range of penalties which could impact on the Appellant's mental health. The Appellant was a deserter so he may not be able to buy his way out. There was an increase in the apprehension and detection of draft evaders and it did not matter that the Appellant had been away for twenty years.
15. Ms Fisher relied on paragraph 8.3.1 and 8.4.1 of the CIG which states:
"The UN Human Rights Committee highlighted its concern in November 2012 that conscientious objectors are still at risk of being sentenced to imprisonment and that they are practically deprived of some of their civil and political rights such as freedom of movement and the right to vote."
"In its 2014 Progress Report on Turkey the European Commission reported that 'In June the European Court of Human Rights found Turkey in violation of Article 3 (prohibition of torture) and of Article 9 (freedom of thought, conscience and religion) of the ECHR for prosecuting and sentencing four Jehovah's Witnesses who refused compulsory military service."
16. Ms Fisher submitted that the judge took into account all relevant factors and had not departed from the conclusions in IK. The Appellant was a deserter who had been away from Turkey for twenty years. There was evidence before the judge which supported his conclusions. Any lack of reasoning was not material.
17. In relation to J and Y and Z, whilst there was a letter from the Appellant's GP, it was evident from the material before the judge that the Appellant had been referred to acute psychiatric services. The judge had evidence that he was currently under assessment by a team of psychiatric services and that he had made an attempt on his life (A43 of the Appellant's bundle). According to J there had to be a causal link between the removal and inhumane and degrading treatment. The judge set out the relevant parts of the judgment in J and Y and Z before coming to his conclusions at paragraphs 50 and 51. Ms Fisher submitted that the act of removal itself was sufficient to cause the Appellant to feel such that the only way to escape would be to take his own life. Reading the judgment as a whole, it was well reasoned and the decision should stand.
18. Mr Jarvis submitted that the Appellant's submission that the judge has not deviated from IK was misunderstood. IK did not find that there was a risk of ill treatment on being questioned. The risk of ill treatment arose from the risk of being transferred to MIT, the anti-terror police. If that was the case, then the court could not rule out ill treatment. The judge needed to identify why the Appellant would be transferred to MIT.
19. The appellant in IK had been detained. The Tribunal found that IK was a marginal case. It was not about being a Kurd or about coming from the Southeast. It was about whether, on the information on the GBTS, there would be enough to identify whether a person was from the PKK or part of a separatist organisation. It was reasonably likely that a person with this profile would be of adverse interest and the issue for the judge was whether it was reasonably likely that the Appellant would be regarded as a person with this profile. That was not the case here. The judge had identified generalised issues. The CIG at paragraph 5.3.4 gave several alternatives to military service. The judge's conclusion was not in accordance with IK. The judge had not dealt with the background evidence available.
20. Mr Jarvis submitted that the action taken and the cause of suicide had to be proved. At paragraph 50 the judge found that the Appellant's genuine fear created a suicide risk, not that the Appellant's removal caused it. The Appellant was not a conscientious objector, but a draft evader and the suicide risk related to the risk of ill treatment. The judge had rejected the Appellant's political history in Turkey, so his PTSD could only be as a result of what had happened to him since he came to the UK.
Discussion and Conclusions
21. I am not persuaded by Mr Jarvis's submission that there was no evidential basis, in the judge's decision, for finding that the Appellant would suffer ill treatment in detention. The Tribunal at paragraph 133.9 of IK concluded that the use of torture was long and deep seated in the security forces and it would take time and effort to bring it under control in practice. The OGN [CIG] referred to a recent violation of Article 3 in relation to those prosecuted for conscientious objection. Mr Jarvis accepts that the Appellant would be at risk of prosecution for draft evasion.
22. Mr Jarvis submits that risk of ill treatment would only arise if the Appellant was transferred to the anti-terror police, MIT and there was no evidence before the judge to support such a finding. I disagree. The judge applied the country guidance in IK and found that the Appellant would come to the attention of the authorities on return at the airport because he would be identified as a failed asylum seeker having travelled on an emergency travel document. He would therefore be encountered by border control and likely to be referred to a higher authority. This finding was open to the judge given the evidence that the GBTS enabled draft evaders to be easily identified and the increase in detention of draft evaders as a result of regular ID check. The judge also took into account the heightened security following recent terrorist attacks.
23. The Appellant would be questioned on return to Turkey and he could not be expected to lie about his past. It was the Appellant's case that he deserted military service because he was ordered to burn Kurdish villages, kill and target the civilian population, and that refusal to comply with such orders resulted in ill treatment. The judge found that because the Appellant had deserted military service then it was likely there would be some record of him which would result in him being referred to a higher authority. The risk was enhanced because of the state of high alert due to recent terrorist attacks so that all persons arriving at immigration control would be carefully screened.
24. The judge applied the relevant factors set out in IK and A(Turkey) to the Appellant's case. The Appellant was a Turkish Kurd who left Turkey over twenty years ago. He would be easily identified at the airport on return as a failed asylum seeker. He would be likely to be referred to higher authorities because of this and because he would be carefully screened. The authorities would discover his past history and there was a real risk that the Appellant would be detained whilst questioned. He would be prosecuted and sentenced for draft evasion/desertion. Torture is long and deep seated in the security forces. Therefore, there was a real risk that he would be tortured whilst in detention given the evidence in the OGN [CIG] and the findings in IK.
25. Given the judge's findings of fact, and applying the lower standard of proof, the judge's conclusion that there was a reasonable degree of likelihood that the Appellant would suffer persecution and ill treatment on return was open to him on the evidence before him. I find that the judge has not departed from IK, but has applied the country guidance to the facts as he found them.
26. I am not persuaded by Mr Jarvis's argument that the risk of suicide was dependent on being ill treated or that the judge failed to apply the case of J to the circumstances and evidence of the Appellant's mental health. The judge set out J in full and also referred to any amendment that should be made to it following Y and Z. The judge found that there was a causal link between the threatened act of removal and the inhumane treatment relied upon. Because the Appellant's fear was extreme his only perceived means of escape from the isolation and fear in which return would place him would be to take his own life. I am not persuaded that the suicide risk was based only on ill treatment on return, but was based on the Appellant's actual removal.
27. The judge took into account the fact that there were effective mechanisms in both the UK and Turkey to prevent the risk of suicide, but he found that did not reduce the risk because, in this particular case, the risk of suicide was subjective, immediate and acute. The judge applied the case of J to the facts of the Appellant's case. There was ample evidence from the GP's letters, the fact that the Appellant had been referred to psychiatric services and his previous suicide attempt to enable the judge to conclude that he would be at risk of suicide on return.
28. Accordingly, I find that there was no error of law in the judge's decision. He has properly applied the country guidance of IK and properly applied relevant case law in deciding the Appellant's Article 3 claim. The evidence which was before the judge was sufficient to enable him to come to the conclusions that he did having properly applied the lower standard of proof. There is no error of law in the judge's decision dated 31st August 2016 and the Respondent's appeal to the Upper Tribunal is dismissed.

Notice of Decision
The Respondent's appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her 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.

J Frances
Signed Date: 25th November 2016
Upper Tribunal Judge Frances