Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12248/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8th February 2017
On 21st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

KO
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr E Raw, Counsel instructed by Montague Solicitors LLP
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS

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 his 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.

1. The Appellant, a national of Turkey, appealed to the First-tier Tribunal against the decision of the Respondent of 19th October 2016 refusing his claim on asylum, humanitarian protection and human rights grounds. First-tier Tribunal Judge Carroll dismissed the appeal and the Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that the Appellant claims that he is a Turkish national of Kurdish ethnicity and that he was politically involved in Turkey having been a supporter of the BDP and later the HDP. He claims that he was suspected of being involved with the PKK and was detained in December 2011, December 2014, July 2015 and March 2016. He claims that he was a professional singer who was singing Kurdish songs which he was not allowed to do. He claims that when he was released in March 2016 he was to report on a weekly basis and provide information to the authorities, but that he instead left Turkey.
3. The respondent accreted that the Appellant is Kurdish and from Turkey but rejected the rest of his account. The First-tier Tribunal Judge considered the evidence and concluded that she was not satisfied that the Appellant was detained or ill-treated as claimed. The judge noted that it was not in dispute that the Appellant is of Kurdish ethnicity and accepted that the Appellant is "broadly speaking, committed to the Kurdish cause" [18]. The judge concluded that the Appellant has never joined any Kurdish political parties and there is no credible evidence to support his claim that whilst in Turkey he used his musical talents for anything other than straightforward commercial purposes such as playing at weddings. The judge concluded that the Appellant's case is not one that engages the UK's obligations and dismissed the appeal on asylum, humanitarian protection and human rights grounds.
4. The Grounds of Appeal are lengthy but are helpfully summarised in the grant of permission to appeal by First-tier Tribunal Judge Grant-Hutchison and Mr Raw based his submissions on the grant of permission to appeal.
5. It is contended firstly that the judge erred in law by considering it of relevance to the Appellant's credibility that his sister in the UK had not provided in evidence, given that she has lived in the UK for a number of years on the basis of her marriage to a UK citizen. At the hearing Mr Raw submitted that the Appellant says that his sister could say nothing in relation to Turkey as she has resided in England during the material times. Mr Kotas submitted that the judge had not erred in relation to his conclusion about the failure of the Appellant's sister to give evidence. He submitted that it was open to the judge to observe that the Appellant's sister had not provided any evidence in his support.
6. The second ground as summarised in the permission to appeal is that the judge erred in considering that the non-attendance of the letter from the Kurdish Community Centre negatively impacted on the Appellant's credibility, whereas it would be proper to attach lesser evidential weight when the letter simply comments on the Appellant's activities in the UK and does not go to his claim of past persecution in Turkey. Mr Kotas submitted that it was open to the judge to observe that the author of the letter had not turned up, this implied that the judge did not attach much weight to that letter, a finding which was open to him.
7. The third ground of appeal is that the judge erred in failing to consider the Appellant's experience of ill-treatment in detention in that she made a finding that his oral evidence was the first time it had been raised. In his submissions Mr Raw highlighted that in the asylum interview at question 127 the Appellant had been asked to describe what happened during his fourth detention and he said:-
"They searched my car because what they were doing they were swearing at me and punching and hitting. Then they handcuffed me from behind they took my telephone and my car keys. They put me in the police car's boot and they took me to the anti-terror branch".
8. Mr Raw submitted that the Appellant was not questioned any further in his asylum interview in relation to ill-treatment. He submitted that the witness statement dealt with the reasons for refusal letter. He submitted that the judge did not make clear findings on this issue. Instead, in his submission, the judge swept aside this evidence at paragraph 18 by concluding that she was not satisfied that the Appellant was detained or ill-treated as claimed.
9. Mr Kotas submitted that the judge was entitled to reach the conclusions she did at paragraph 17(d) because the hearing was not the first opportunity the Appellant had to mention ill-treatment. He pointed out that at question 135 of the asylum interview the Appellant was asked an open question as to what happened in detention and at question 161 the Appellant was asked if there was anything he wanted to add. He submitted that the Appellant was legally represented and submitted a witness statement prior to the appeal and he submitted that the Appellant had every opportunity to make an allegation of ill-treatment prior to the hearing in the First-tier Tribunal.
10. The fourth ground of appeal contends that the judge erred in failing to take account of all of the Appellant's evidence that the authorities believed he had been involved with the PKK, for example in his answer to question 50 of his asylum interview which it is contended is consistent with the country information. Mr Raw submitted that at question 50 it is clear that the Appellant contended that he was seen as connected to the PKK group because of his political views and the music he was making.
11. The fifth ground of appeal contends that the judge erred in failing to take account of better copies and original photographs of evidence supporting the Appellant's activities in Turkey and the UK. Mr Raw submitted that the Appellant had given oral evidence in relation to the photographs, so it was not right then for the judge to conclude at paragraph 17(g) that she had "no way of knowing" if the photograph which the Appellant identified as being a photograph of him at a gathering in Turkey was the case.
12. The sixth ground contends that the judge erred in failing to make clear findings in relation to the Appellant's four detentions, or a specific finding in relation to his involvement with HDP/BDP. Mr Raw referred to paragraph 28 of the reasons for refusal letter where the Respondent set out factors in paragraph 399L of the Immigration Rules. He pointed out that the Respondent set out five points noting that the Appellant had met all of the criteria and the only claim disputed by the Respondent is the Appellant's claim that he has been politically affiliated with the BDP and the HDP because his answers given about his involvement was said to be vague and lacking in detail. Mr Raw submitted that the Appellant's answers in relation to this matter had not been vague.
13. The seventh ground is that the judge erred in concluding that there was no evidence that the Appellant makes music protesting about the Government when there was evidence in the substantive interview and on YouTube.
14. Mr Kotas submitted that the core of the Appellant's claim is that he was detained on a number of occasions and that he was arrested because of his singing and music referring being a supporter of the PKK. He submitted that the judge is entitled to conclude as she did at paragraph 17(a) that the burden of proof in relation to these matters was on the Appellant. He submitted that, although it is contended in the Grounds of Appeal that the Home Office representative applied for an adjournment at the commencement of the hearing in the First-tier Tribunal as the representative was not in possession of the Home Office file and therefore was unable to produce recordings which the Appellant had submitted of his performances, there was no allegation of procedural unfairness and no adjournment application had been made by the Appellant on this basis. He submitted that it was for the Appellant to reproduce any evidence upon which he wished to rely. He submitted that the more critical issue is whether there had been any transcript or translation of the recordings as this went to the judge's conclusion that there was no evidence before her in terms of transcripts and translations of any material which the Appellant claims to have sung, either in Turkey or in the UK.
15. The final ground is that the judge erred in failing to consider the risk factors in the country guidance case of IK (Returnees - records - IFA) Turkey CG [2004] UKIAT 00312.
16. Mr Kotas submitted that the judge was entitled to conclude at paragraph 18 that the Appellant may be sympathetic to the Kurdish cause. He submitted that the judge had given adequate reasons at paragraph 17 to deal with all of the issues.
Error of Law
17. I have considered all of the Grounds of Appeal and I conclude that the First-tier Tribunal Judge did make material errors of law. In my view the main errors were in her conclusions in relation to the Appellant's allegations of detention and ill-treatment.
18. The judge appears to conclude that the Appellant referred to ill-treatment for the first time in oral evidence [17(d)]. However, this is contrary to the answer given by the Appellant at question 127 of the asylum interview where he said that he had been punched and hit.
19. Secondly, and perhaps more importantly, the judge concluded at paragraph 18 that she was not satisfied that the Appellant had been detained or ill-treated as claimed. However, the judge gives no clear reasons for concluding that the Appellant was not detained as claimed. Although the judge lists various factors at paragraph 17 to which she has had regard, there are in my view no adequate findings in relation to those factors. For example at paragraph 17(d) the judge appears to say that the Appellant alleged that he had been ill-treated in detention for the first time at the hearing. However, as set out above, this is contrary to the answer he gave at question 127 of the asylum interview. Further, the judge makes no clear finding as to this issue before going on to conclude at paragraph 18 that she was not satisfied that the Appellant was ill-treated as claimed. Also, the judge made no clear finding in relation to the Appellant's claims of detention. It is therefore not clear why the judge reached the conclusion she did at paragraph 18 that he had not been detained as claimed. This is further compounded by the judge's acceptance that the Appellant is, "broadly speaking, committed to the Kurdish cause" [18], this implies that the judge accepted the Appellant's evidence about this as set out at paragraph 17(b) however that is not clear in paragraph 17(b) which simply relates the Appellant's evidence without saying whether it was accepted and why.
20. The judge's conclusions appear to flow from the findings at paragraphs 17(a) and 17(c) that there is "no evidence" as to the content of the Appellant's songs. This is the main clear finding made by the judge. However, there was some evidence about this before the judge. The Appellant had given oral evidence as to the content of the songs. It was of course open to the judge to reject that evidence or to attach little weight to it. However she made no clear assessment of that evidence and made no findings as to what weight she attached to it. If she attached little or no weight to that evidence she did not say so or explain why. Given that this is a key finding I find that this is a material error.
21. In conclusion it seems to me that the judge's findings of fact and conclusions in relation to the evidence are not adequately clear in relation to issues which go to the heart of this appeal. This is a material error.
22. In these circumstances, in light of the lack of clarity in relation to findings of fact, those findings cannot stand. The parties were in agreement with my view that, in the circumstances, the nature and extent of the judicial fact finding which is necessary in order for the decision to be remade is such that (having regard to the overriding objective in Rule 2 of the Upper Tribunal Procedure Rules 2008) it is appropriate to remit the case to the First-tier Tribunal.
Notice of Decision
23. The decision of the First-tier Tribunal contains a material error of law.
24. I set that decision aside.
25. I remit the decision to the First-tier Tribunal for a de novo hearing.

Signed Date: 20 February 2017

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: 20 February 2017

Deputy Upper Tribunal Judge Grimes