Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02197/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 February 2019
On 10 April 2019

Before

UPPER TRIBUNAL JUDGE CONWAY

Between

B A
(Anonymity Order Made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Degirmenci of Counsel
For the Respondent: Ms Cunha, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Turkey born in 1999. He appealed against a decision of the respondent made on 10 February 2017 to refuse him asylum. On 4 April 2017 there was an appeal hearing before the Tribunal where the appellant's appeal was dismissed. On 1 February 2018 the Upper Tribunal set aside the Tribunal's decision and ordered that it be heard afresh.
2. The basis of his claim is that he fears persecution from the authorities on account of his imputed opinion as a supporter of the PKK due to his membership of the Peace and Democracy Party which in 2014 became the People's Democratic Party (HDP).
3. In 2014 he became involved with the HDP because his family and friends supported them. He distributed leaflets and put up posters. In August 2015 PKK guerrillas approached when he was in the mountains shepherding. The next day he was arrested and detained for one night and questioned about the PKK. He was beaten.
4. In February 2016 his sister joined the PKK. As a result the authorities came to the appellant's home and questioned his parents.
5. In March 2016 he and two friends were told by a villager to meet some PKK guerrillas outside the village. They were told to run errands for them. One of his friends left to return to the village. Soon after he learned that that friend had been detained.
6. The appellant travelled to Istanbul. He applied for a UK visa in mid April 2016 and left Turkey in May 2016. Whilst in the UK his father called him and told him that the police had raided his home on 10 July 2016. The authorities had also questioned the village mukhtar about his whereabouts.
7. His sister is missing.
8. The basis of the refusal is that while it was accepted that the appellant is a Turkish national and of Kurdish ethnicity his account was not credible. His answers at interview about HDP policies were vague and inconsistent; given he was 17 years of age at interview he could not have been high profile; visa applications made in February 2016 and in April 2016 indicated that he lived in Istanbul, had worked there and had intended to travel to the UK in April, all matters which contradicted his account.
9. Further, his ability to get a passport in October 2015 indicated he was of no interest. Also, it was not credible that the PKK would approach three men who were not members to carry out their tasks.
10. He appealed.
First tier hearing
11. Following a hearing at Taylor House on 9 October 2018 Judge of the First-tier Tribunal Loke dismissed the appeal.
12. Her findings are at paragraph [14] ff. In summary, having noted that the appellant was vulnerable at the time of his interview due to his age, she found that it was "reasonably likely that he supported the HDP. He may have attended rallies and he may well have distributed leaflets." [17]
13. However, the judge was "not satisfied that he was a member of the HDP." A claimed membership document had not materialised. A membership card indicating him to be a member of the Kurdish Community Centre did not assist. [18]
14. She went on to find that the appellant has family connections with the HDP, namely his uncle and cousins. There are newspaper articles in support.
15. She did not believe that the appellant's sister had joined the PKK or was suspected of such. He had not mentioned such at interview. A statement by his father, while it said he had not seen her since February 2016, did not state she had joined the PKK.
16. As for the incidents in August 2015 there were discrepancies, in particular, whether he signed or refused to sign a document before his release. Further, there was inconsistency about how much he was asked whilst in detention about his sister.
17. The judge also did not believe the PKK would instruct an unknown to carry out errands or that he would have, as a 15 year old boy, the resources to travel immediately to Istanbul.
18. In further adverse findings the judge placed little weight on gendarmerie documents and did not find persuasive evidence from the appellant's father in Turkey.
19. Finally, the judge took as an adverse factor that the appellant was able to leave Turkey on his own passport.
20. The judge concluded by considering risk on return in light of her findings, namely, that although a supporter of HDP with family connections with the HDP, he had not been detained or arrested or tortured or suspected of being a separatist and the authorities had not expressed any interest in him since his departure.
21. She stated: "Whilst I have found that the appellant has attended HDP rallies and meetings there is no evidence that he has attracted the attention of the authorities in doing so. Although the appellant has family connections with the HDP through his uncle and cousins there is no evidence that the appellant will be questioned on their account." [41] Accordingly, the judge was not satisfied that the appellant would face a real risk on return either to his home area or elsewhere including the airport on arrival.
22. He sought permission to appeal which was refused but was granted on 22 January 2019 on reapplication to the Upper Tribunal.
Error of Law Hearing
23. At the error of law hearing before me Ms Degirmenci made three points. First, the judge failed to consider a material document which was before her which confirmed he was a member of the HDP. Such had a bearing on the overall assessment of credibility. Also, many members of the HDP have been detained and imprisoned. Second, having accepted that family members had connections with HDP the judge failed to make findings on the extent of the family's connections to the PKK. His case was that his cousins had been arrested on accusations of supporting the PKK. Third, whether the appellant has family connections with a separatist organisation is a material matter to consider in assessing risk on return. The judge's statement that it was of no consequence was erroneous.
24. In response Ms Cunha accepted that the judge failed to have regard to a document which supported his claim to have been a member of HDP. She questioned whether it was material in light of what he admitted were his low level activities. As for family members the judge gave clear reasons in support of her finding that the sister had not joined the PKK. Overall, she made adequate findings that the family were not involved with PKK. Finally, her approach to risk on return was one on the facts found which was open to her.
Consideration
25. In considering this matter I find merit in Ms Degirmenci's submissions. It is clear that the judge gave careful thought to the case in a detailed analysis. Unfortunately, however, I conclude that she made errors which mean it is unsafe. First, the judge correctly recognised that the appellant's association with the HDP including whether or not he was a member of the party, was a material issue in the appeal. At [17] she accepted that the appellant was a supporter of the HDP who distributed leaflets and attended rallies. At [18] she noted that the document confirming the appellant's party membership had "never materialised." That was incorrect. The appellant's first bundle (pp 9-12) contained evidence supporting his claim of membership including a letter from the HDP and a receipt for contributions to the party. The letter confirmed that the appellant was "a member of our party."
26. I consider that her failure to assess this evidence was a material error which had a bearing on the overall assessment of credibility. It cannot be said that had the judge properly considered the evidence of the appellant's membership, it would be immaterial to her overall conclusion on credibility.
27. In any event the respondent's Country Policy and Information Note: Kurdish political parties, Turkey (August 2018) provides as follows:
"2.4.1 The HDP and the PKK are separate organisations with different goals. The HDP denies direct links with the PKK. However, some members of the HDP have been accused by the Turkish government of links with the PKK."
28. Further, (at 2.4.4) "thousands of members of the HDP have been arrested since the coup attempt of July 2016."
29. The second problem is the judge's failure to reach a finding in respect of a material matter. She accepted the evidence that the appellant's family had connections with the HDP [20, 38] "as evidenced by newspaper articles" but other than in respect of his sister did not reach a finding as to the extent of the family connections with the PKK and the arrests and imprisonment of family members on account of such (genuine and suspected) connections.
30. The evidence was that two cousins had been arrested on accusations of supporting the PKK. A further cousin killed in 2012 had been a member. An uncle who was a mukhtar was removed from office amongst allegations of PKK involvement. There was supporting evidence in respect of the profile of the family members, and the criminal cases against them in the supplementary bundle of evidence.
31. Such has relevance to risk on return. The judge referred to IA (Turkey) [2003] UKAIT 34 (as confirmed in IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 312. Whether the appellant has family connections with a separatist organisation is a material matter to consider in assessing risk on return. The judge's comment that there is "no evidence" [41], that the appellant would be questioned on account of his family connections is erroneous in the context of this guidance, which identifies the political associations of family members as a risk factor.
32. In light of the flaws in the decision I consider that the case will need to be reheard again and appropriate findings made.
Decision
33. The decision of the First-tier Tribunal shows material error of law. It is set aside. The nature of the case is such that it is appropriate under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2 to remit to the First-tier Tribunal for a fresh hearing on all issues. No findings stand. The member(s) of the First-tier Tribunal chosen to consider the case are not to include Judge Loke.
34. An anonymity order is made. Unless and until a tribunal or court directs otherwise the appellant is granted anonymity. Failure to comply with this order could lead to contempt of court proceedings.

Signed Date 5 April 2019
Upper Tribunal Judge Conway