Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03698/2015

THE IMMIGRATION ACTS

Heard at Field House, London Decision & Reasons Promulgated
On the 17th February 2017 On the 3rd March 2017

Before: DEPUTY UPPER TRIBUNAL JUDGE MCGINTY
Between:
MR ABDULLAH KAYA
(Anonymity Direction not made)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Amunwa (Counsel)
For the Respondent: Mr Staunton (Home Office Presenting Officer)

DECISION AND REASONS

1 This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Khawar promulgated on the 26th July 2016, in which he dismissed the Appellant’s protection and Human Rights appeal.
2. The Appellant is a citizen of Turkey whose date of birth is the 13th December 1994. When hearing the Appellant’s appeal against the Respondent’s decision to refuse his protection and Human Rights appeal, Judge Khawar noted that the Respondent accepted the Appellant was a citizen of Turkey and of Kurdish ethnicity and that the Appellant was a supporter of the BDP and HDP and may have carried out low level political activities on behalf of the said parties. He found that the Appellant was involved in distributing leaflets on behalf of and in support of HDP. However the Learned First-tier Tribunal Judge did not accept the Appellant was a member of HDP. He went on to find that it was plausible that the Appellant may have been detained on 2 separate occasions, as claimed by the Appellant in his asylum interview, whilst attending at a demonstration and/or whilst distributing such leaflets, but found that the BDP and HDP had not been outlawed by the Turkish government and that the Appellant had never been a member of the PKK or supported the PKK in any way. He did not accept the Appellant was released on condition that the Appellant became an informant in relation to the PKK.

3. Judge Khawar did not accept the Appellant’s account that the Turkish authorities knew that his cousin was a member of the PKK and found that there was no supporting evidence to substantiate such a claim and that the Appellant’s father and brother who were in the United Kingdom had not given evidence at the appeal and that there were no witness statements from them and the Appellant had not provided information during his asylum interview as to the basis of his father and brother’s own asylum claims. Further the First-tier Tribunal Judge did not accept that the Appellant had been mistreated whilst in detention, given the lack of corroborative evidence, including any medical evidence from the hospital where he was said to have been taken by his mother following his release. Judge Khawar further found that although the Appellant may have been detained on 2 occasions such detentions did not represent an official arrest, because there was no involvement of any charges and the Appellant was not brought before a Judge, such that he found that there was no evidence to suggest that the Appellant’s details would appear on the computerised GBT system. He further found that the Appellant had been able to obtain exemption from military service as a result of his imminent university studies and that further, in any event the Appellant would be able to internally relocate and there was no reason to believe that the Appellant would not be able to register with a Mukhtar in another area of Turkey, if he so desired. He therefore dismissed the Appellant’s asylum, humanitarian protection and Human Rights claim.
4. Permission to appeal was originally refused at First-tier level by First-tier Tribunal Judge Grimmett on the 15th November 2016. He found that Judge Khawar had made findings which were open to him on the evidence and that the Grounds of Appeal amounted to a disagreement with the Judge’s findings.
5. The Appellant has thereafter renewed his Grounds of Appeal and in the Grounds of Appeal, inter alia, it is argued that the Learned First-tier Tribunal Judge has made contradictory findings between paragraphs 38 and 40, where it is argued that in paragraph 38 it appeared that the whole of the Appellant’s account had been rejected as incredible, whereas at other points parts of the account are accepted. It is further argued within the Grounds of Appeal that the Judge had failed to make findings in respect of the evidence given by the Appellant that the authorities had raided his family home enquiring as to the Appellant’s whereabouts and asking his neighbours as to his whereabouts, in respect of which the Appellant had given evidence at question 89 of his asylum interview. It was further argued that the Learned First-tier Tribunal Judge had failed to make findings on the Appellant’s assertion that he had been fingerprinted and photographed when detained. It was further argued that the Learned First-tier Tribunal Judge erred in requiring supporting evidence for the Appellant’s claim and that it was a basic tenant of refugee law that in an asylum claim Appellants would not always be able to provide corroborative evidence. It was argued that in respect of the Appellant’s evidence that his cousin was a member of the PKK, there would not be “supporting evidence” available, as the PKK do not hand out membership card. It was argued that the Appellant’s father and brother had not given evidence and the issue was not surprising given that they had outstanding claims for asylum on their own account. It is further argued within the Grounds of Appeal that the Learned First-tier Tribunal Judge failed to take account of the background evidence from the Country and Information and Guidance dated March 2016 in respect of the HDP (People’s Democratic Party). The Grounds of Appeal sought to argue that the Appellant had never begun his university studies before he fled turkey and that therefore his details would be on the GBTS as a draft evader. It was further argued that the finding that the Appellant would be internally able to relocate was inadequately reasoned and that there was an inadequate assessment of the Appellant’s risk in his home area.
6. Permission to appeal was granted by Upper Tribunal Judge Canavan on the 9th January 2016, in which decision she extended time for the application for permission to appeal, which had been received 1 day out of time and went on to find that “Having accepted that the Appellant was a low level, but active member of HDP and having been detained on 2 occasions in 2015, it is arguable the Judge failed to consider whether the background evidence gave rise to a reasonable degree of likelihood that the Appellant was ill-treated as claimed. In assessing the risk on return the Judge arguably failed to consider whether the Appellant’s history of recent detention would place him at continued risk on return: see paragraph 339K Immigration Rules”. She granted permission to appeal on all grounds.
7. Within the Respondent’s Rule 24 Reply dated the 3rd February 2017, it is argued that the decision read holistically does not reveal a material error of law and the finding of the Judge that it was implausible that the Turkish authorities would release the Appellant on the condition that he supplied them with information on the PKK was a finding that was open to him, given the lack of supporting evidence from members of the family in the UK nor any medical evidence in support of the Appellant’s case. It was further argued it was open to the Judge to take a point against the Appellant that his father had not given evidence, despite a claim by the Appellant that he was at risk due to his father’s profile. It is argued further that the Judge had properly considered the background evidence and found that the Appellant, if detained, had not been formally charged and not been brought before a Judge. It is argued that the Judge made clear findings addressing all of the issues before him and that the Grounds of Appeal amount to simply a disagreement with the findings made.
8. It was on that basis that the appeal came before me in the Upper Tribunal. At the oral appeal hearing, Mr Staunton on behalf of the Respondent, quite properly conceded that First-tier Tribunal Judge Khawar had not in fact made any findings in his decision, regarding the Appellant’s claim that after he fled his home area after his second detention and was in Istanbul, the authorities had raided his family home enquiring as to the Appellant’s whereabouts and had gone so far as to ask the neighbours as to his whereabouts. Mr Staunton conceded that First-tier Tribunal Judge Khawar had therefore not adequately dealt with the question as to whether there was an ongoing adverse interest in him from the Turkish authorities. Mr Staunton further quite properly conceded that when finding at [44] that there was no supporting evidence to substantiate the Appellant’s claim that the Turkish authorities knew that his cousin was a member of the PKK, that the Learned First-tier Tribunal Judge had not taken account of the background evidence contained within the Country Information and Guidance report from March 2016 in that regard and had not analysed the evidence therein relied upon by the Appellant, as quoted within the Grounds of Appeal, regarding the Turkish authorities conflation of activities by the HDP and the PKK, and the evidence therein regarding the Turkish authorities’ views as to the alleged links between the HDP and PKK at section 8.2 and as to whether or not this was in fact supporting evidence of the Appellant’s account that the Turkish authorities believed that the Appellant’s cousin was a member of the PKK and believed that the Appellant would be in a position to be an informant in relation to the PKK, as claimed. Mr Staunton accepted that there was little consideration of the background evidence relating to whether or not the Appellant was likely to have been mistreated in detention and to be at risk upon return, and that such background evidence could be corroborative of the Appellant’s account, in the absence of live evidence of the Appellant’s father and brother or any medical evidence.
9. In light of those concessions, I do find that the decision of First-tier Tribunal Judge Khawar does contain material errors of law. He has not made findings on one of the primary issues as to whether or not the Appellant is still being sought by the Turkish authorities through the authorities allegedly having attended at his house following his second period of detention and asked his neighbours about his whereabouts. Further, I find that First-tier Tribunal Judge Khawar has not fully and properly taken account of the evidence which was before him in terms of the Country Information and Guidance report in terms of the Turkish authorities’ belief as to the links between the HDP and the PKK, and as to whether or not the Appellant would therefore be likely to be asked to become an informant in respect of the PKK, through his involvement with the HDP, albeit not a member thereof, and through what they allegedly believed to be his cousin’s membership of the PKK.
10. I therefore do find that the decision of First-tier Tribunal Judge Khawar does contain material errors of law and I therefore set aside that decision. I do find that the question of credibility does need to be considered de novo, given that credibility has to be considered holistically, taking account of all of the relevant evidence, and that therefore it is appropriate for there not to be any preserved findings of fact and for the case to be remitted back to the First-tier Tribunal for a rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Khawar.
Notice of Decision
The decision of First-tier Tribunal Judge Khawar does contain material errors of law and is set aside. The matter is remitted back to the First-tier Tribunal for rehearing before any First-tier Tribunal Judge other than First-tier Tribunal Judge Khawar.
I make no order for anonymity, no such order having been made before me.

Signed
R. F. McGinty
Deputy Upper Tribunal Judge McGinty Dated 17th February 2017