Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/06634/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 December 2017
On 9 January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

mr AP
(ANONYMITY DIRECTION made)

Respondent

Representation:

For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Ms C Physsas, instructed by Montague Solicitors

DECISION AND REASONS

1. Although this is an appeal by the Secretary of State I refer to the parties as they were in the First-tier Tribunal.
2. The Appellant, a national of Turkey, appealed to the First-tier Tribunal against a decision of the Secretary of State dated 30th June 2017 to refuse his application for asylum. In a decision promulgated on 17th August 2017 First-tier Tribunal Judge Pears allowed the Appellant's appeal. The Secretary of State now appeals to this Tribunal with permission granted by First-tier Tribunal Judge Chohan on 18th September 2017.
3. The background to this appeal is that the Appellant claimed to have arrived in the UK on 31st December 2016 and claimed asylum on 7th January 2017. The Appellant claims that he is an ethnic Kurd. He claims that he was at a friend's wedding when an explosion took place nearby. He says that he ran from the wedding in the direction of the explosion and was stopped by fifteen to twenty police officers who beat him because he says they knew he was Kurdish and believed he was responsible for the explosion. He was detained for two days during which time he was interrogated and beaten. However he was released after someone else took responsibility for the bomb. After he was released his details were taken but he was not charged and did not have to sign any documents. He remained in Turkey between August and December 2016 without any problems with the authorities. He claims that he was perceived by the authorities as being a supporter of the PKK.
4. In the reasons for refusal letter the Secretary of State accepted that the Appellant is a Turkish national and of Kurdish ethnicity. The Secretary of State accepted that the Appellant had given a consistent and reasonably detailed account of the explosion in Turkey and a subsequent arrest and release and this part of the Appellant's claim was accepted. However the Secretary of State did not accept that the Appellant would be perceived by the authorities as being a supporter of the PKK. The Appellant claims that he left Turkey illegally and would face issues on return to Turkey on that basis. However the Secretary of State did not accept that he would face any difficulties on return because he holds a Turkish identity card which he could show upon his return and he was released by the Turkish authorities and faced no further issues and it was not accepted that he left Turkey illegally.
5. In considering the appeal the First-tier Tribunal Judge set out the guidance in the country guidance case of IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312 and highlighted a number of paragraphs in that decision at paragraph 17 of the decision. The judge also considered the background information in the Home Office country information note of August 2017. In making his findings at paragraphs 42 to 49 the judge noted the elements of the Appellant's case which were accepted by the Secretary of State noting at paragraph 42 that even on his own case the Appellant was released, there was no warrant for his arrest, that he remained in Turkey between August and December of 2016 without problems and he was able to leave Turkey without issue. The judge questioned the Secretary of State's assertion at paragraph 18 of the refusal letter that the Appellant could re-enter using his identity card saying that that did not mean that the Appellant did not exit illegally [44]. The judge concluded that the Appellant did not have a valid passport, having been supplied with one by an agent and that was not his own, and that, while he might be entitled to return to Turkey, he would have no evidence of his legal exit [45]. The judge applied the guidance in IK noting that the Appellant had been arbitrarily detained and ill-treated because he was a Kurdish male in an area where a bomb had gone off and that on his return to Turkey as a failed asylum seeker aged 18 with Kurdish ethnicity from Gaziantep who was suspected in August 2016 of planting a bomb and who was then detained and ill-treated and fled the country as accepted by the Home Office and who had been absent from Turkey for a period of about eight months who had no passport and no evidence of legal exit would be "at real risk of being transferred on his arrival at Istanbul Airport for enquiries by the anti-terror police or possibly by MIT and be at a real risk of material ill-treatment" [49].
6. In the Grounds of Appeal the Secretary of State contends that the judge had failed to consider that the Appellant would not be a political prisoner as he was mistreated along with many others after a local incident years ago and in addition he was not pursued. It is contended that the appellant is not wanted by the police and if he returns he will face questions about departure. It is contended that the judge erred in finding that the Appellant left illegally and furthermore, even if it were accepted that he had, there is no reason to believe that the Appellant would receive a prison sentence, he may just get a fine and even if he did get a short sentence the prison conditions for non-political inmates are generally of international standard.
7. In granting permission First-tier Tribunal Judge Chohan considered it arguable that the judge erred in finding that the Appellant would be at risk due to his illegal exit from Turkey and considered it unclear what weight the judge attached to other parts of the Appellant's in relation to residing in Turkey between August and December 2016 and the fact that there was no arrest warrant.
Error of Law
8. At the hearing before me Mr Richards conceded that what was put forward in the Grounds of Appeal was not entirely accurate. He accepted that at paragraph 49 the judge did not find that the Appellant would be at risk on return just on the basis of his illegal exit. He accepted that the judge considered that the Appellant's return to Turkey as someone who had exited illegally may lead to him coming to the attention of the authorities and being referred to anti-terror police or the MIT and he accepted that this part of the grounds was not arguable.
9. However he submitted that the judge had made a material error of law in that he failed to appreciate that the Appellant was never arrested in the sense defined in the case in IK. In his submission the Appellant had never been arrested and brought before a court in terms of the guidance set out in IK. He contended that the Appellant's previous arrest and mistreatment was simply in the context of someone who was in the wrong place at the wrong time and that he was released when someone else confessed to the crime. In these circumstances the Appellant was able to reside in Turkey thereafter without any difficulty. In his submission the judge did not acknowledge this in his findings therefore the judge had not adequately reasoned why the Appellant would come to the attention of the authorities upon return in circumstances where he had previously been exonerated. He submitted that this inadequate reasoning renders the judge's conclusion wrong in law.
10. In my view it is cleat that the judge took into account the fact that the Appellant was released, that there was no warrant for his arrest, that he remained in Turkey between August and December 2016 without problems and was able to leave Turkey without issue [42]. There has been no challenge to the judges finding at paragraph 45 that the Appellant left using a false passport and accordingly he would have no evidence of his legal exit from Turkey.
11. There is no challenge to the paragraphs of IK relied upon by the judge in paragraph 17 of the decision where he cited paragraphs 79 to 86 of the decision in IK. Ms Physsas highlighted the parts of the guidance relied upon by the judge which are in bold in the extracts. In particular she highlighted paragraph 79 where the judge noted that returnees at Istanbul Airport had to present themselves to immigration control booths staffed by the border police and, dependent on the view taken by the border policemen, the returnee will either be allowed to proceed through the terminal without further ado or be transferred to the police station attached to the airport for further questioning and that there was no real risk during this period of questioning of ill-treatment. The Tribunal went on to say:
"However if as a result of information derived from such questioning or from any further enquiries undertaken by them, the police decide to transfer a returnee for further enquiries by anti-terror police or possibly by MIT, it will during this third phrase of the process that the prospect of material ill-treatment arises".
At paragraph 82 of the decision in IK the Tribunal said;
"Thus if a returnee is travelling on a one way emergency travel document (and no failed asylum seeker will be returned to Turkey by the British government without appropriate travel documentation), or if there is no border control record of illegal departure from Turkey, 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."
12. At paragraph 84 of IK the Tribunal cited the CIPU report and said that the nature of questioning at the airport involves questions as to as to the reasons and period of exit from Turkey, reasons for the asylum application and reasons for any refusal of the asylum application among other matters. At paragraph 85 the Tribunal set out the Home Office position noting that a person who does not have valid documents is likely to be questioned in order to establish his identity and an individual who is thought to have left on false documents is likely to be questioned about how and from whom he obtained them. I asked Mr Richards whether he wished to rely on any other guidance in IK and he did not.
13. I accept the submission from Ms Physsas that the guidance in IK set out by the First-tier Tribunal Judge does not indicate that a returnee will only be questioned if he was subject to an arrest warrant. The guidance cited above and relied on by the First-tier Tribunal Judge is broad enough to indicate that someone in the Appellant's circumstances who is returning having exited the country illegally is at real risk of being transferred to enquire on his arrival at Istanbul Airport for enquiries by the anti-terror police or possibly MIT and would be at real risk of ill-treatment as found by the judge at paragraph 49. This is clearly the guidance the judge had in mind when reaching his conclusions at paragraph 49. I also accept Ms Physsas' submission that the conclusions of the judge at paragraph 49 were largely based on the matters already accepted by the Secretary of State. The judge properly considered the Appellant's profile upon return in the context of the guidance in IK. There is no challenge to the judge's findings of fact, indeed the judge did not significantly depart from the matters accepted by the Secretary of State in the reasons for refusal letter.
14. Mr Richards submitted that paragraph 49 is incomplete in that the judge failed to consider that the Appellant had been exonerated and had remained in Turkey after his release and that his reasoning was therefore incomplete. However as indicated above it is clear that at paragraph 42 the judge was very much aware of the Appellant's circumstances and background as accepted by the Secretary of State. It is equally clear that it is on that basis the judge reached the conclusion at paragraph 49.
15. It is clear in my view that the judge made findings open to him on the basis of the evidence and on the basis of the matters accepted by the Secretary of State in the reasons for refusal letter. The judge set out an extensive citation from the country guidance case of IK at paragraph 17 and the judge properly applied this guidance to the findings in this case. There was no submission by the Secretary of State that country guidance no longer applies. There was no submission by the Secretary of State as to other guidance in the case of IK which is contrary to the guidance relied on by the judge or that the country guidance was not properly applied by the First-tier Tribunal Judge.
16. In these circumstances I conclude that there is no material error in the decision of the First-tier Tribunal.

Notice of Decision

There is no material error in the decision of the First-tier Tribunal.

The decision of the First-tier Tribunal shall stand.

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 him or any member of their 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.

Signed Date: 8th January 2018

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

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

Signed Date: 8th January 2018