Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03215/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21st October 2016
On 31st October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE ZUCKER

Between

EBRU [A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss U Dirie, Counsel, instructed by Sentinel Solicitors
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Turkey whose date of birth is recorded as 28th September 1992. She is of mixed Kurdish ethnicity. She arrived in the United Kingdom on 2nd July 2015 and claimed international protection as a refugee. On 10th November 2015 a decision was made to refuse that application and the Appellant appealed. On 10th May 2016 the appeal came before Judge of the First-tier Tribunal Moran sitting at Hatton Cross. Judge Moran found the Appellant an entirely credible witness in every material particular. That is not in dispute.
Basis of claim
2. The basis of the claim was that the Appellant began to shown interest in the HBP Party a separatist party, in 2012 to 2013, and became a member in December 2014. Her family were also supporters of the party if not formal members. On 5th January 2015, after she had been canvassing she returned home, the police raided it. She was taken to a nearby police station. She was beaten and interrogated about involvement with the PKK a Kurdish separatist party. She was made to sign a statement. She did not know what that statement was. She is concerned that the document itself may have put her in danger. To repeat the Appellant was accepted as a credible witness. She was then taken to a secluded area by police officers and raped. She made her way home in distress. She was reluctant to mention what had happened to her and given the cultural context one readily understands why that was so. She was afraid of the police but she was also afraid of the reaction of her family. She did however seek medical attention after speaking with a friend. No physical treatment was required but she had bruising. She remained in the Istanbul area until May 2015. She did not know whether the police were continuing to look for her but a complaint was eventually made to the authorities through her political party concerning what had happened to her. The result was a raid on her previous address and her landlord being taken to the police station. The Appellant's concern was that the police wished to "encourage" the Appellant to withdraw her complaint. It remains the case that the Appellant has not disclosed, to her family, the events which have occurred. So it is that this relatively young woman travelled alone to the United Kingdom without family support. She does however have some family in the United Kingdom to whom she can return.
3. Having considered the evidence Judge Moran made a key finding, namely that those police officers who committed the appalling act upon the Appellant were rogue police officers, and went on to find that the officers who subsequently came looking for her were not the same officers who had raped her but were offices investigating the complaint. In the circumstances the judge did not find that the Appellant would be at risk now were she to return to Turkey. He dismissed the appeal on all grounds.
4. Not content with that Decision by Notice dated 29th June 2016 the Appellant made application for permission to appeal to the Upper Tribunal. The First-tier Tribunal refused permission. However, in a renewed application permission was granted by Upper Tribunal Judge King TD. It is worth setting out in full, because it is short, what Judge King had to say in granting permission.
"The judge accepts the fact of a brutal rape by police following her release from custody. It is arguable that the reasons given for finding that that action simply the action of rogue officer and that there is a sufficiency of protection are inadequately reasoned. Internal relocation is stated but also with very little reasoning or analysis. The Appellant is entitled to make complaint against those officers but fears, with some justification, that such a complaint will or has provoked an adverse interest in her."
5. One can read into the grant of Judge King, his preliminary acceptance, at least, that the Appellant was entitled to succeed. I remind myself that the matter is clearly for me.
Was there an error of law?
6. For the Respondent it was submitted that the background material showed that there was "evidence of more intolerance towards this kind of by behaviour", which implies acceptance that there is this kind of behaviour. I was also invited to distinguish the acts of police officers in Turkey towards Appellants taken into detention because of their political activities and otherwise but with respect to Mr Singh I am not entirely clear the point that is being made because it was accepted in her case that the interest in her was because of her political activities. Mr Singh invited me to find that the reasons why the police officers were looking for the Appellant subsequent to the rape had to be divorced from the initial events.
7. For the Appellant Miss Dirie suggested that I should look to the matter holistically and that there were a sequence of connected events.
8. Of course all of this has to be seen in the context not only of the background material but with an eye on the country guidance case of IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312. I shall return to the country guidance in due course.
9. Mr Singh took me to country information and guidance. But I have to consider in the first instance before looking to that, which I appreciate goes to materiality, whether the judge adequately looked at the evidence that was before him.
10. The judge says at paragraph 29:-
"The background country information is important. I have considered all the material relied on by each party. It is consistent with some of the other reports that there have been that rogue officers could [my emphasis] carry out the sort of attack that they did."
11. In fact the bundle provided by the Appellant's solicitors for the hearing ran to 201 pages, the majority of which was background material which the judge seemed able to summarise in those few words followed by a little more, it is fair to say, in that paragraph. He did set out from the background material paragraph 2.16, 3.11 and 3.12 of the Home Office Turkey: Background information. The judge appears to have focused in large measure on references to rogue officers and at paragraph 30 of the decision it reads:
"The related guidance 'Turkey: HDP (People's Democratic Party)' is also relevant but is of greater assistance to a case where there is a finding of fact of ongoing adverse interest. I do not find this to be such a case. Even if there were ongoing adverse interest the guidance also says that internal relocation from rogue state actors is likely to be available."
I mention this because the issues of internal relocation has fallen away in this case if I find that there is a material error of law, because Mr Singh does not contend for it.
12. Mr Singh quite properly took me not only to those parts of the background material which are supportive of the Secretary of State but also to those parts which are not. That is quite proper and at paragraph 8.4 of the country information and guidance under the heading "Human Rights Violations and Impunity" there is reference to thie United States Department of State 2014 Country Report on Human Rights Practices which noted that:
"The law prohibits arbitrary arrest and detention. There were numerous reports of the government not observing these prohibitions. Whilst civilian authorities maintained effective control of the TMP, government mechanisms to investigate and punish alleged abuse and corruption before state officials remained inadequate, and impunity remained a problem. Although the law prohibits holding a suspect arbitrarily or secretly, there were numerous reports that the government did not observe these prohibitions. By law police and jandarma may compel citizens to identify themselves without cause. During 2014 police routinely detained individuals for hours without charge."
13. The report goes on at 8.4.2 to deal with an Amnesty International Report published 25 February 2015 in which it was said:-
"Investigations into abuses by police officials remained ineffective, and the chance of securing justice for the victims were remote. In the absence of the long promised but never established independent police complaints mechanism, police units were effectively responsible for investigating their own alleged abuses under the instruction of under resourced prosecutors. Police departments routinely failed to provide the most basic items of evidence to investigate."
14. I appreciate that there is background material upon which the Secretary of State can rely and I was taken to it by Mr Singh. But the difficulty which the Secretary of State has, and where I find the judge fell into error, is that where there is conflicting evidence which is at best equivocal then the standard of proof must favour the Appellant. Although, as it happens, I find in fact having looked at the background material to which I have been taken by both parties, it is more supportive of the Appellant's case than not. But where there is background material which is equivocal given the lower standard of proof then the issue must be resolved in the Appellant's favour. This is not a case where balance of probabilities determines the issue.
15. The grounds themselves submit that there was no sufficient basis for the judge to find that these police offices were "rogue officers" nor that there was a sufficient basis to find the ultimate issue in the case, namely that the Appellant would be safe upon her return. The point was well made by Miss Dirie that the judge had noted that "the investigation" which followed the rape when the police officers were looking for the Appellant was not simply a knock on the door with a request to speak with her but a raid on the former house with an arrest of the neighbour, in circumstances in which it was never suggested that this neighbour had anything to do with the attack upon her.
16. In my judgement the decision simply cannot stand. The decision is entirely against the weight of evidence and here I am referring not only to the evidence of the Appellant who was found to be wholly credible but the background material to which I was taken. I have not referred to all of the background material to which I was taken but I am delivering this decision extemporaneously before the parties and they will appreciate that I have not in the few moments from when they made their submissions to delivering this decision forgotten what they had said to me nor the material to which I was referred; I have made clear notes of the various passages to which I was taken.
The remaking of the Decision
17. I was helped in the remaking of this Decision not only by the background material to which I have already referred but also to the country guidance of IK which at paragraph 46 sets out a number of factors which are not, it is to be emphasised, a checklist. But they are material to my consideration and it is of note that the judge did not make reference to them which is yet another point which can properly be taken against him in determining whether or not there was a material error of law.
18. Paragraph 46 reads as follows:
"The following are factors which inexhaustibly we considered 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 had ever been arrested or detained and if so in what circumstances. In this context it maybe relevant to note how long ago such arrest or detention took place, if it is the case that there appears to be no causal connection between them and the claimant's departure from Turkey, that 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 terrorist.
(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 KADA 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 these 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 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 would be some logical impact on his profile to those assessing him on his immediate return following SAPET. Of course this alone is not a basis for a refugee or human rights claim."
19. Of those factors (a), (b), (c), (e), (f), (g), (i) were relevant to the Appellant.
20. I put to Mr Singh an alternative scenario, namely that the complaint, albeit made through a third party by the political party with which the Appellant was associated, might have been made because it was in the interests of the political party and that the acts of the police for pursuing the Appellant subsequently was to "remove the evidence". I asked Mr Singh if he wanted to comment and his response was, "I see your point".
21. I come to the firm view in this case, applying the lower standard, that after this woman was raped, consequent upon her arrest and association with a political party against whom the Turkish authorities had an interest, she was pursued in a manner in which she reasonably was entitled to be fearful. I come to that view because of the raid, when I say raid I mean the subsequent raid of the former house, and all of the background material to which I have referred and to which I was taken.
22. In my judgement it was completely against the weight of evidence for the judge to come to the view that he did. The evidence strongly pointed in the Appellant's favour and I so find.
23. There is no need for me to consider in this case whether or not internal relocation is a viable option for the Appellant because Mr Singh very properly and fairly conceded that on the particular facts of this case that it was not a matter with which I need be concerned.
24. In all the circumstances the appeal to the Upper Tribunal is allowed.
Notice of Decision
25. The appeal of the First-tier Tribunal is set aside. The decision of the First-tier Tribunal is remade. The Appellant is a refugee. She is entitled to international protection as such and the appeal necessarily succeeds on human rights grounds also.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge Zucker 31st October 2016

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Zucker 31st October 2016