AB (Turkey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Laws |
| Judgment Date | 05 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1535 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2007/0327 |
| Date | 05 November 2007 |
[2007] EWCA Civ 1535
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Buxton and
Lord Justice Laws
Case No: C5/2007/0327
[AIT No: HX/19661/2004]
Mr R Fortt (instructed by Messrs Paragon Law) appeared on behalf of the Appellant.
Miss S Broadfoot (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
This is an appeal by Mr AB, who is a citizen of the Republic of Turkey, against a determination of the Asylum and Immigration Tribunal entered on 11 December 2006. That was, in turn, an appeal from a determination of an adjudicator, as he then was, Mr T R P Hollingworth, promulgated on 21 February 2005.
It is very painful to have to record that Mr B came to this country on 14 October 1999 and immediately claimed asylum. Eight years later his status still remains uncertain. The reasons for those delays are to some extent apparent on the papers before us. The first part of the period was substantially caused by what appears to have been a serious administrative error in the Secretary of State's department. Some of the later delays are broadly (but not entirely) explicable by the necessary difficulties caused in the judicial system by a number of changes in the law. What can, however, be said (apart from deploring the situation) is that none of the delays are to be laid at the door of Mr B, or of any of the (fairly numerous, as it now is) persons who have advised him.
He complains of two errors in Mr Hollingworth's conduct of the case in his determination, neither of which was seen to be such by the Asylum and Immigration Tribunal. Those were as follows. First, a procedural decision by Mr Hollingworth in the course of the hearing before him. As I shall have to explain in somewhat more detail, the appellant's case alleges involvement in Turkey with the PKK, an organisation well known in this jurisdiction, and a number of attacks on him and ill-treatment of him on that ground by the authorities, as a result of which he says he has a well-founded fear of that persecutory attitude being continued should he be returned to Turkey.
The form of the proceedings before Mr Hollingworth were, as he describes in paragraph 9 of his determination, that there was in his view no satisfactory statement before him at the opening of the proceedings from the appellant; but he agreed to counsel then representing him (not Mr Fortt, who appears for him today) to perfect the statement, dating it 4 February 2005, and that stood as Mr B's evidence in chief. He was cross examined on one or two matters by the Home Office Presenting Officer. Apparently the adjudicator did not ask him any questions, but he was not challenged in cross examination or asked further about the substance of his case, which is as I have just very briefly summarised it. It is right to say that the Secretary of State had from the first disbelieved Mr B's account as being implausible and unsubstantiated, and the Home Office Presenting Officer gave no indication that that had ceased to be the Secretary of State's position.
The hearing proceeded in that form. When counsel came to address the adjudicator about the merits of the case, the adjudicator then indicated that he did not believe the account given in the witness statement. We have no record of the detail in which that indication was given at that stage, but it was given with sufficient clarity to cause counsel to say that if the adjudicator was concerned about certain aspects of his client's evidence, he would wish to recall his client (who, of course, was still sitting there in court), so that points of difficulty could be put to him. The adjudicator declined to allow that step. The hearing completed, and then when the adjudication was published it became clear that the adjudicator had indeed effectively disbelieved (I think it is fair to say) virtually the whole of Mr B's case. The first complaint made is that it is unfair (indeed, to the extent of being an error of law) for the adjudicator to reach those conclusions, adverse to the appellant, without his having had a chance to be examined upon them, as his counsel requested. That is the first ground of appeal.
The second ground of appeal is more detailed. It relates to the handling of a newspaper article that was produced in evidence by the appellant. Part of the appellant's case was and is that the reason or one of the reasons why he was targeted by the authorities was because his family, or part of it, had been identified as PKK sympathisers, and in fact one of his cousins was known to have joined the PKK, and had effectively gone into resistance on their behalf. Part of the appellant's case was and is that that hostility to the family had manifested itself, and in particular in that his brother had in 1994 been murdered by the state authorities, he having had difficulty previously because of his connection or perceived connection with the PKK.
The evidence that was said to demonstrate that event —the attack and killing of the brother by the security forces —took the form, quite apart from the appellant's assertion to that effect, of a newspaper article describing the events that had occurred. Now, it will be necessary to come in due course to the content of that article and what it did or did not prove, but the complaint that is made about it is this. When an indication was given to the adjudicator that it was sought to adduce such an article, he made a statement in open court, vouched for both by counsel then appearing and by a gentleman who was acting as interpreter, broadly to the effect that he (the adjudicator) did not give much weight to or was not inclined to pay attention to newspaper articles. The complaint is that that indicated bias on his part at an inappropriately early stage, which, as it would seem to be the argument, disqualified him thereafter from making findings about this article, or at least making findings about it adverse to the appellant. In due course, when he gave his determination, the adjudicator did address the article, and did not accept that it established that which the appellant said it established that the brother had been killed by the security forces.
The second ground of appeal, therefore, is to do with the mishandling by the adjudicator of the article; and in particular, that he mishandled it because he had what in law was definable bias. I will deal with those points in the order that I have just set them out.
I have already summarised the nature of the case put forward by the appellant in his witness statement, which was his evidence in chief. The adjudicator identified that he needed to look first at the basis of the claim; that is to say, that the appellant was targeted because of his family connections and because of his relationship with the PKK. He explained in a number of respects, both in his initial interviews and in the statement, how he had assisted the PKK. The adjudicator was sceptical both about the extent of his assistance and about the relationship of his cousin with the PKK, which he did not feel was adequately substantiated. Against that background, however, the appellant described four incidents: one in either January or November 1994 (the uncertainty about the date does matter, and I will come back to it —that is in paragraph 79 of his witness statement); an occasion in July 1997 (witness statement paragraph 17); December 1998, which is paragraph 18 of the witness statement; and June 1999, which is paragraph 19 of his witness statement (that being, it will be noted, a short time before he came to this country). The appellant gave a graphic account in his statement of serious acts of torture, prolonged and aggressive on at least three of those occasions. I do not go into the details of the allegations; if they were in any way accurate, they were certainly deplorable beyond expression, and would clearly indicate a seriously persecutory attitude on the part of the authorities of the state of Turkey. On all of those occasions, as I have said, he was detained for periods up to a week, but then released.
The Immigration Judge, as I have said, found really the whole of this account unconvincing. He had a general concern about its general implausibility, but in more detail he could not understand how it could be that if this man was seriously regarded as an adherent of the PKK, which at that time was regarded by the Turkish state as a terrorist organisation, he would have been released, apparently without further formal surveyance, on each occasion. The Immigration Judge did, however, also indicate a significant number of specific difficulties: either inconsistencies, or matters that were unexplained in the account given by the appellant. It is necessary to go through those.
The first is the question of the actual date of his detention in 1994. Now it is fair to say that the Immigration Judge drew attention to a number of other discrepancies between the dates given in the SEF form, those given in interview, and those attributed in the witness statement. But for my part, those seem to me to be difficulties not of a central nature, and I do not see that the Immigration Judge placed very...
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