Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02327/2020
(UI-2021-001353)

THE IMMIGRATION ACTS

Heard at : Field House
Decision & Reasons Promulgated
On the 23rd March 2022
On the 3rd May 2022

Before

UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

VE
(Anonymity Order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms M Sirikanda, of Bostanci & Rahman Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision refusing his asylum and human rights claim.

2. The appellant is a citizen of Turkey of Kurdish ethnicity, born on 7 July 1996. He arrived in the UK on 18 September 2017 on a direct flight from Istanbul, with a visa as a short-term student valid until 24 August 2017. He overstayed his visa and remained in the UK unlawfully. On 23 April 2019 he was encountered working illegally during an enforcement visit and he was arrested and served with removal papers as an overstayer. He claimed asylum on 29 April 2019 when directions were set for his removal to Turkey. His claim was refused on 17 January 2020 and he appealed against that refusal decision.

3. The appellant’s claim was made on the basis of a risk on return to Turkey as a draft evader and as a Kurdish political activist. With regard to the latter he claimed to have been arrested and detained by the Turkish police on two occasions, in November 2015 and July 2017. He claimed that his first arrest was as a result of his attendance at a protest against the detention of the president of the Diyarbakir Law Society and that he was detained for two days on that occasion before being released because of a lack of evidence against him. He claimed that his second arrest was because his name had come up during a police operation in Diyarbakir leading to him being suspected of links to the PKK. On that occasion he was detained for three days and released after he agreed to assist the police by providing information about people who helped the PKK. He was released on monthly reporting restrictions and reported on one occasion at which he provided a name to the police of a political leader who was already in prison, and he then fled the country without reporting again.

4. The respondent, in refusing the appellant’s claim, accepted that he was a draft evader but considered that he would not be at risk of persecution on that basis if returned to Turkey. The respondent rejected the appellant’s claim to be a political activist who was of adverse interest to the Turkish police and who had been arrested and detained, finding his evidence in that regard to be internally inconsistent. The respondent found that the appellant would be at no risk on return to Turkey given his lack of any political profile and concluded that his removal to Turkey would not breach his human rights.

5. The appellant appealed against that decision and his appeal was heard by First-tier Tribunal Hussain on 30 September 2021. Judge Hussain noted, with regard to the appellant’s claim based upon draft evasion, that he had not challenged the respondent’s assessment that he was not a conscientious objector and accordingly, following the guidance in Sepet & Anor, R (on the application of) v Secretary of State for the Home Department [2003] UKHL 15, he concluded that he was not at risk of persecution on that basis. The judge considered that the appellant’s credibility overall was undermined by the circumstances in which he had made his asylum claim, but in any event did not accept that his account of his political involvement and his arrest and detention was truthful. He noted inconsistencies in the appellant’s account and he rejected his claim to have been of adverse interest to the Turkish authorities. The judge concluded that the appellant was at no risk on return and he dismissed the appeal on all grounds, in a decision promulgated on 15 November 2021.

6. The appellant sought, and was granted, permission to appeal to the Upper Tribunal on the grounds that the judge had failed to consider and apply the country guidance in IK (Returnees, Records, IFA) Turkey CG [2004] UKIAT 00312 and that the judge had made mistakes of fact and had misunderstood parts of his claim.

7. The respondent did not file a rule 24 response. However, at the hearing before us, Mr Whitwell conceded that the judge had made material errors of law and that the respondent did not oppose the appeal. He accepted that the judge’s findings at [75], relating to the implications of the appellant’s ability to leave Turkey without being picked up, failed to take account of the country guidance in IK. He also accepted that the judge’s observations at [80], about the reason why the appellant was released from detention, and at [82], about the appellant failing to report to the Turkish authorities, were based upon details which were inconsistent with the evidence actually provided by the appellant. Mr Whitwell accepted that those errors were material to the judge’s overall assessment of credibility and that the judge’s decision had to be set aside.

8. In view of Mr Whitwell’s concession, we agreed that the judge’s decision had to be set aside and re-made at a further hearing. As for the disposal of the appeal, Mr Whitwell initially requested that it be retained in the Upper Tribunal with the judge’s adverse findings about the appellant’s immigration history at [70] and [71] being preserved. However he subsequently withdrew that request, accepting that the entire credibility assessment had to be re-made given his concession as to the materiality of the judge’s errors. Although he pursued a request that the judge’s findings in relation to draft evasion be preserved, we agreed with Ms Sirikanda’s submission that the matters were in some respects intertwined and that all issues should be considered afresh. Accordingly we concluded that the appropriate course would be for the case to be remitted to the First-tier Tribunal for a de novo hearing.

DECISION

9. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law and the decision is set aside. The appeal is remitted to the First-tier Tribunal pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), to be heard before any judge aside from Judge Hussain.

Anonymity

The anonymity direction made by the First-tier Tribunal is maintained.

Signed: S Kebede Dated: 23 March 2022
Upper Tribunal Judge Kebede