Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11597/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 March 2017
On 24 March 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Secretary of State for the Home Department
Appellant
and

O D
(aNONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr D Clarke, Home Office Presenting Officer
For the Respondent: Mr B Ali instructed by Linkworths Solicitors

DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal, that is Mr D as the appellant and the Secretary of State as the respondent.
2. The appellant, a national of Turkey with Kurdish ethnicity appealed against the decision of the Secretary of State dated 13 October 2016 to refuse his application for asylum. The appellant was born on 20 February 1959 and arrived in the United Kingdom in February 2001, claiming asylum on the same date. His appeal against that decision was dismissed on 6 September 2001 and he became appeal rights exhausted on 25 September 2001. Further representations dated 24 September 2009 were refused without a right of appeal. Following judicial review proceedings a further decision was made which is the subject of this appeal.
3. The appellant claimed he was of Kurdish ethnicity and has a political affiliation with the HADP (the People’s Democratic Party) and that he feared that on arrival in Istanbul Airport he would be transferred to the anti-terror branch for questioning and subjected to interrogation.
4. First-tier Tribunal Judge Devittie allowed the appeal of the appellant on asylum grounds.
5. The Secretary of State appealed on three grounds. First, that the judge made a material misdirection of law. At paragraph 23 the judge refers to the fact that he could not “discount the possibility” that the appellant would be subject to serious harm on return. That she submitted was a misapplication of the standard of proof as found in IK (Returnees –Records- IFA) Turkey CG [2004] UKIAT at paragraph 80.
6. Secondly, the judge provided no lawful reason for the substantial finding that contrary to IK (the applicable country guidance), there was a blanket risk to Kurds being returned. The Secretary of State contended with respect that the evidence cited at paragraph 21 plainly related to Kurdish politicians or persons with a high profile in the south-east. It simply did not provide any support for the proposition of risk to a non-political Kurd who had been out of the country for sixteen years and when returned had simply told the Turkish authorities that he made a false claim for asylum and had no political links or profile.
7. Thirdly, nor did the judge consider why the application would be subject to any difficulties in the Turkish controlled area of Cyprus, that being his recorded place of origin.
8. In sum, the judge had failed to acknowledge the test set out in SG (Iraq) EWCA Civ 940 [2012].
9. At the hearing before me Mr Clarke relied on and expanded the written grounds of appeal. The question was whether the evidence relied on by the appellant was sufficient to depart from the country guidance. It was insufficient to have indicated that there was a risk per se to the Kurds and risk on ethnicity alone was not sufficient. There had been no specific examples identified in this case and the appellant was not at risk on account solely of his ethnicity. Merely to be interrogated about it was insufficient, there was nothing cited as to what would happen and no specific evidence.
10. Mr Ali submitted that the country guidance case was heard in 2004, twelve years before the case came before Judge Devittie. Up to the events of 2016 Turkey was on an upward trajectory. The test set out at paragraph 80 of IK was not a legal test and the last sentence of paragraph 23 of Judge Devittie’s decision was relevant to show that the judge had indeed applied the correct test insofar as the standard of proof was concerned.
11. The judge had been taken through the objective and country background evidence which indicated that there were two main risk factors; being Kurdish and having a link to politics. The country background indicated a pervasive scene of a brutal crackdown on particularly Kurds in Turkey and it was clear that the judge accepted from the Amnesty International Report that it was not just those who were political but all sorts of Kurds were arbitrarily arrested and detained. The judge was faced with radical change in Turkey which was hitherto unprecedented. It was clear that the appellant would be returned to Istanbul Airport and there was no suggestion that he would be sent back to Cyprus. Ground (iii) was unsustainable. I was referred to paragraph 133 of IK and alerted to the sections of the case DSG & Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148 (IAC) which identified that changes should be taken into account and fresh evidence appraised by any Immigration Judge. It was through that prism that paragraphs 12.2 and 12.4 of the Practice Directions should be considered. On any view the appellant was going to be ill-treated should he attend Istanbul Airport.
12. In response Mr Clarke noted that the appeal had been allowed on asylum grounds. The objective and background evidence related to political activism within Turkey and not to mere ethnicity. At paragraph 17 the judge had noted that the appellant’s previous claim had been dismissed but at paragraph 19 his political claim was specifically dismissed, the judge noting that there was very little evidence of his political activism. The judge would need strong grounds and cogent evidence to depart from clear country guidance.
13. At this point Mr Ali invited me to consider whether this case should be set down for a country guidance consideration, particularly bearing in mind the age of the present country guidance case conclusions.
Conclusions
14. I note the direction at paragraph 80 of IK that ‘torture cannot be excluded’ was not the same as ‘real risk’. I find there was no indication that the judge did not apply the correct standard of proof. I do acknowledge that the judge appeared to state that he could not “discount the possibility of the appellant being exposed to treatment that engaged this country’s obligations” but it is quite clear that in the last line and sentence of paragraph 23 the judge referred to using the correct standard of proof as he also stated, “I am satisfied that there does exist a reasonable degree of likelihood that the appellant would upon his return, under the current conditions, be exposed to a real likelihood of interrogation, which may lead to ill-treatment.”
15. Thus to my mind the judge did apply the correct legal test as to whether there was a “real risk” which is the test that was identified at paragraph 80 of IK as being correct.
16. I turn to a consideration of the judge’s assessment of the risk to the appellant and for clarification set out paragraphs 21 to 23 of the decision:
“21. Understandably, as the failed coup is a very recent event, appellant relied largely on newspaper articles. I would summarize the country background evidence as follows:
(i) there has been a countrywide crackdown on all perceived opponents of the regime since the failed coup attempt in July 2016. This crackdown has been unprecedented in its extreme brutality and indiscriminate nature. A recent Amnesty International report indicates that more than 10,000 people were detained since the coup and it records the treatment meted out to these detainees in the following terms:
‘AI has credible evidence that Turkish police in Ankara and Istanbul are holding if you detained in stress positions for up to 48 hours, denying them food, water and medical treatment and verbally abusing and threatening them. In the worst cases some have been subjected to severe beatings and torture including rape.’
(ii) The crackdown has caught in its net persons from diverse backgrounds, including judges, lawyers and military personnel. Insofar as the Kurdish people are concerned it is significant that the crackdown has coincided with a surge in military activity by the separatist groups. As a direct consequence, the Turkish authorities have extended emergency measures in the aftermath of the failed coup to the Kurdish population, even those with no known links to the failed coup attempt. The Guardian article and other newspapers report that there has been a mass closure of all Kurdish media outlets and 24 pro-Kurdish mayors have been ousted. The Guardian also records a massive crackdown on Kurdish politicians. The New York Times reports similar development the development in the Kurdish area.
22. It is in the context of the above developments that I have considered whether this appellant, upon his arrival at the airport, would be exposed to the real risk of serious harm solely on account of his Kurdish ethnicity. I am aware of country guidance on the risk that Kurdish returnees are likely to encounter. The approach hitherto in cases like IK has been that the Turkish authorities had a fairly sophisticated information system and that those with records would be likely to face interrogation. The country guidance does not support the proposition but one would be at risk solely on account of his Kurdish ethnicity.
23. I have asked the question whether this appellant therefore, maybe at the real risk of suffering serious harm on return to Turkey in the light of the current conditions, solely on account of his ethnicity. I have been persuaded to find that I cannot discount the possibility of the appellant being exposed to treatment that would engage this country’s obligations and I say this because the wide-ranging nature of the crackdown, its indiscriminatory approach and its sheer brutality is unprecedented in Turkey. In the context of the civil conflict in the Kurdish areas that has raged for many years, and these heightened tensions in a country seemingly at war with itself, I am satisfied but that there does exist a reasonable degree of likelihood that the appellant would upon his return, under the current conditions, be exposed to a real likelihood of interrogation, which may lead to ill-treatment.”
17. Specifically SG (Iraq) v Secretary of State for the Home Department at paragraph 47, SG states:
“It is for these reasons as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so.”
18. But as pointed out there are further paragraphs in SG which are also relevant such as paragraph 54:
“54. I think it significant that the Country Guidance Practice Direction refers not to a Country Guidance decision simpliciter being binding, but on the findings of the Tribunal ‘being authoritative on the country guidance issue identified in the determination’.”
...
58. Moreover, consistency of decision is desirable only in cases that are materially similar. SG and OR are not in materially the same situation as the appellants in HM. SG and OR had the protection of sections 77 and 78 of the 2002 Act while their applications to the Secretary of State were pending and while their appeals were pending.”
19. Mr Ali submitted that the submission based on SG was wholly misconceived and untenable. The Tribunal was considering in 2004 could not have been further from the current conditions in Turkey with the effect of dictatorship that Turkey had adopted since the coup in July 2016 and that the judge’s approach was consistent with SG and did not disclose an error of law. What was relevant was that the appellant was Kurdish, Alevi and his involvement with the Kurdish community in the UK were a well-known fact and set out. There were letters on file from the Kurdish Community Centre dated 16th November 2016 stating that the appellant
‘actively joins in cultural, social, political and education activities’.
20. It is also relevant that DSG be considered.
21. I set out paragraphs 20 and 21 from DSG & Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148 (IAC):
“20. It is relevant at the outset to set out the terms of Practice Direction 12.2 and 12.4 which are of clear importance to this case. They state as follows:

‘12.2 A reported determination of the Tribunal, the AIT or IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authority in any subsequent appeal so far as that appeal:

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence.

12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law’.

21. In the Upper Tribunal Immigration and Asylum Chamber Guidance Note 2011 No 2, at paragraph 11, it is stated:

‘If there is credible fresh evidence relevant to the issue that has not been considered in the country guidance case or, if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence, taking into account the conclusion in the CG case so far as it remains relevant’.

And at paragraph 12:

‘Where country guidance has become outdated by reason of developments in the country in question, it is anticipated that a judge of the First-tier Tribunal will have such credible fresh evidence as envisaged in paragraph 11 above’.”
22. The Practice Direction was updated in July 2015 at paragraph 11 but continues to refer to the binding nature on the tribunal of country guidance reported determinations and largely repeats the references in DSG by way of the following
‘If there is credible fresh evidence relevant to the issue that has not been considered in the Country Guidance case, or if a subsequent case includes further issues that have not been considered in the CG case, the judge will reach the appropriate conclusion on the evidence taking into account the conclusion in the CF case so far as it remains relevant’.
23. I take note of Mr Ali’s submission that the country guidance relied on in IK dates from 2004 and the judge clearly and cogently noted that there had been very significant changes which had taken place in Turkey since the coup attempt in 2016 and the extreme brutality and indiscriminate nature of the crackdown by the government. Thus, as submitted, the judge considered the risk to the appellant and expressly considered at [22] that IK did not support the proposition that a person would be at risk of persecution solely on the basis of Kurdish ethnicity. Nevertheless the judge gave strong reasoning for his departure from IK, as described above, and the changed conditions in Turkey.
24. Bearing in mind the age of the country guidance in this matter and the events that have transpired in Turkey subsequent to 2004, I consider that the judge was prised of credible fresh evidence in relation to the country conditions in Turkey and the tactics of the Turkish government to those perceived as being in opposition.
25. As identified in DSG the judge in this case, directed himself properly in his decision noting what was decided by the Tribunal in IK at paragraph 22. He stated that:
“The approach hitherto in cases like IK has been that the Turkish authorities had a fairly sophisticated information system and that those with records would be likely to face interrogation. That country guidance does not support the proposition that one would be at risk solely on account of Kurdish ethnicity.”
26. As can be seen from the extract above, the judge identified that there had been a failed coup in Turkey in July 2016 and since that time there had been a “radical and material change in circumstances that this Tribunal should find were substantial grounds for departing from the case of IK.”
27. What is of key importance is that the judge noted from the wealth of evidence produced to him that the crackdown in Turkey had been unprecedented in its extreme brutality and indiscriminate nature. The judge specifically identified a report from Amnesty International, a recognised and well-known source, which indicated that more than 10,000 people were detained since the coup and specifically at paragraph 21(2) the judge identified that as a direct consequence Turkish authorities have extended emergency measures in the aftermath of the failed coup to the Kurdish population even “those with no known links to the failed coup attempt”.
28. It is clear from the background evidence that the judge quoted from the evidence provided such as the article from the New York Times which identified the scope of the political targets in the crackdown by President Erdogan in the four month since the coup failed. A further report article of 5 November 2016 identified
“over the past month acting under emergency powers that allowed the state to bypass Parliament and rule by decree, the Turkish Government extended the crackdown to the Kurds, and have no known link to the coup attempt”.
The judge paraphrased but also identified the Guardian article entitled ‘What about our human rights? Kurds feel force of Turkey’s crackdown’, dated 6 October 2016 and other newspaper reports that there had been a mass closure of all Kurdish media outlets. The Guardian Article confirmed that the AKP had
‘extended the post-coup purges of Turkish society to the Kurds not limiting the scope to followers of the US-based cleric Fethullah Gulen whom the government blames for the coup attempt’.
There was no reason to suggest that these articles were not credible. A Human Rights Watch Report dated October 2016 entitled Turkey: Emergency Decrees Facilitate Torture identified that ‘Turkish police have tortured and otherwise ill treated individuals in their custody after emergency decrees removed crucial safeguards in the wake of a failed coup attempt in July 2016’.
29. The appellant confirmed that he was an affiliate of the Kurdish nationalist movement HADEP which according to the documentation the Turkish government associated with the PKK. Although at [19] the judge concluded that the appellant had not produced any ‘credible evidence’ to demonstrate his involvement on the part of Kurdish separatist activities since his arrival in the UK, the appellant had in fact produced a letter from the Kurdish Community Centre dated 16 November 2016 which stated with reference to the appellant, “he actively joined in cultural, social and political and educational activities in which the emphasis was on integration and issues surrounding the people who have to leave their homeland and live in diaspora”. A Kurdish community membership ID card was also presented. The appellant asserted that he had been involved in two recent Kurdish nationalist demonstrations but did not produce ‘proof of his attendance’. The decision under challenge discloses, that at the hearing the appellant collapsed during his cross examination and was taken to hospital. The judge declined an adjournment. The judge did not assess the witness’s evidence including his credibility on the basis of the Vulnerable Witness Guidelines. I would also note that the previous credibility findings in 2001 were in part based on the appellant’s ‘demeanour’ and that approach and subsequently been disapproved.
30. Although it was advanced that by the First-tier Tribunal Judge that neither the appellant nor his solicitors produced any evidence of his medical condition of a stroke it is recorded in the decision at paragraph 18 that the appellant collapsed at the court hearing and emergency services were called in whereby the appellant was taken to hospital. The judge noted there was a history of the appellant collapsing and fainting whenever he came into contact with either the immigration authorities or being interviewed by his solicitors albeit he stated there was no medical evidence. Contrary to the judge’s assertion there was, however, evidence from St Barts Hospital dated October 2014 to demonstrate that the appellant had Thrombolysis disorder and functional left sided sensory loss and had experienced collapse. Paragraph 86 of IK confirms that it will be for the adjudicator in each case to assess how a returnee would in fact respond on interrogation and questioning by the authorities and in the light of the circumstances. This appellant would clearly not fare well under examination or interrogation.
31. I also note that, on the country guidance as it was under IK, there was consideration from paragraph 79 onwards of the real risk that a returnee to Istanbul would be placed in a non routine investigation stream and subject to detailed questioning. At paragraph 82 it was held that if a returnee is travelling on a one way emergency travel document then there is a reasonable likelihood that he will be identified as a failed asylum seeker and could be sent to the airport police station for further investigation and although this was not automatically the case there is a “real risk of transfer to the airport police station”.
32. Proceeding from there, at paragraph 84, IK set out as follows:
“The CIPU Report at 6.242 describes the nature of the questioning at the airport police station as mostly involving:
"Establishment or checking personal details; reasons and period of exit from Turkey; reason for the asylum application; reasons for any refusal of the asylum application; any criminal record and past record at home and abroad including drug offences; possible contact with illegal organisations abroad. However, if there are no suspicions, as a rule after an average of 6 to 9 hours they are released."
33. This assumes that there is further information which may arise from the question of a returnee by the police in the airport police station and that a person should not be expected to lie to the authorities during the questioning in order to avoid persecution. The reason for the asylum application was his political affiliation with the HADP even if it were not accepted. He would not be expected to lie. The appellant’s previous asylum claims was based on the basis that he had a political past and was linked to the HADP, even though that was not classified as credible evidence by either the Adjudicator or Judge Devittie. Although I have commented on that conclusion above, Judge Devittie did accept that he states he regularly attends the Kurdish Community Centre. The question is how the appellant is going to be perceived on return given the growing hysteria in Turkey and it is clear that even on the previous country guidance of IK the previous asylum claims would be relevant in this instance. This may well with his personal profile place the appellant at risk.
34. Although the Immigration Judge appeared to short circuit this reasoning it is clear that the judge found that the very recent events of which he summarised as the country background evidence indicated widespread and indiscriminate attacks by the Kurdish Government on those with Kurdish ethnicity. Albeit that the judge did not expand on the personal profile of the appellant, and this may be an error, I find that for the reasons I have given it is not material.
35. Finally it was not the Secretary of State’s position that she intended to return the appellant to Cyprus; he would be returned to Istanbul. I am not persuaded that the last ground has traction.
36. I am persuaded that the judge has given good reasons for departing from country guidance bearing in mind the background material which the judge has cited, albeit succinctly. There is a sufficiency of reasoning in the decision, in line with Shizad (sufficiency of reasons: set aside) [2013] UKUT 00085 (IAC). The judge should have taken into account the further personal details of the appellant which he did not but in the light of my observations above, I find that error is not, in the circumstances material.

Notice of Decision
The First-tier Tribunal made no material error of law and the decision of Judge Devittie should 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 Helen Rimington Date signed 22nd March 2017

Upper Tribunal Judge Rimington