Attorney General (CA – Fresh evidence) Turkey
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 24 January 2005 |
| Neutral Citation | [2005] UKIAT 14 |
| Court | Immigration Appeals Tribunal |
| Date | 24 January 2005 |
[2005] UKIAT 14
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Miss K Eshun (Vice President)
Mr N H Goldstein (Vice President)
For the Appellant: Mr J Dutton of O'Keeffe Solicitors
For the Respondent: Ms L Saunders, Home Office Presenting Officer
AG (Turkey — CA — fresh evidence)
This is an appeal against the determination of an Adjudicator, Ms C M Bell, promulgated on 6 August 2004. The Appellant was born on 1 March 1948 and arrived in the United Kingdom in December 2002. Her asylum claim, based on an alleged fear of persecution by Turkish authorities as an Alevi Kurd, was refused in March 2004.
The Adjudicator accepted that the Appellant was illiterate, had a bad memory, was poor with dates, inarticulate and vague. She concluded in relation to the asylum claim as follows:
“I accept therefore that the appellant is an ethnic Kurd who faced harassment and threats and intimidation whilst living in her Kurdish village from 1990 to 2000, form both the PKK and the gendarme. I do not accept that this treatment amounted to persecution. The appellant then moved to Istanbul where she felt discriminated against and was briefly detained in connection with the whereabouts of one of her sons. She was verbally abused and slapped. Although I accept she was treated badly, I do not accept that the treatment she experienced amounts to persecution. She was released as it was accepted that she did not know where her son was. She left Turkey because she wanted to be with her children in the UK and to avoid the harassment and discrimination she was facing. I do not accept that the appellant has experienced treatment in Turkey which crosses the high threshold required to constitute persecuted or ill-treatment in breach of Article 3.”
The Adjudicator concluded that there was no real risk to the Appellant on her return to Turkey and no issue has been raised in this appeal about the Adjudicator's treatment of the asylum claim. This appeal relates to the Adjudicator's conclusions on Article 8.
The Appellant had said that in 1990 her husband had left her and had come to the United Kingdom. He had divorced her and remarried. He was now in the process of divorcing that second wife and intended to remarry the Appellant. She had three sons in the United Kingdom and a daughter in Germany. The Adjudicator found:
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“42. The appellant claims to live with her former husband and three children. She is not legally married to her husband but states that they have reunited and intend to remarry. Her children are all adults. The appellant has been in the UK since December 2002 and had not previously lived with her husband since 1990. She had not lived with her children since they too left Turkey at various different unspecified times.
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43. I find it reasonably likely that the appellant is living with her former husband and three adult children in the UK and accept that a form of family life exists.
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44. When considering whether the decision to remove the appellant would constitute an interference with this family life I note that there is no evidence as to why the appellant's former husband and children could not return with her to Turkey if they so wished. There is no evidence that any of them have been recognised as refugees or even that they have the right to remain in the UK. Therefore the appellant has not demonstrated that the decision would interfere with her family life.”
The Adjudicator considered that the return of the Appellant to Turkey would be a reasonably proportionate decision, saying:
“… It is relevant that the appellant is aware that her former husband's status in the UK is precarious as he is said to be awaiting a ‘final determination’. The appellant's family life is with her former husband, from whom she lived separately for many years, and her adult children, and there is no evidence of any exceptional dependence between the appellant and her adult children over and above the normal ties between adult children and their parent. If the family bonds are close enough for them to wish to stay together there is no evidence of any insurmountable obstacles preventing family life continuing overseas.”
Removal was not outside the range of reasonable responses.
There was very little in the grounds of appeal which related to an error of law in this determination on the material placed before the Adjudicator. Almost all of the grounds related to the effect of new evidence, which itself almost entirely related to the position of various family members as at the time of the Adjudicator's determination. The case of CA v SSHD [2004] EWCA Civ 1165 makes it clear that before any such evidence could possibly be examined the Appellant had first to establish that there was indeed an error of law in the Adjudicator's determination. That case dealt with the effect of sections 101 and 102 of the Nationality, Immigration and Asylum Act 2002 for Adjudicator determinations after 9 June 2003. It is quite clear that under this new regime there is a real change required in the way in which new evidence is considered.
Even up-to-date evidence of personal or country circumstances changed after the date of the Adjudicator's determination is not admissible unless a “ material” error of law has been found in the Adjudicator's determination. By “ material” we take it that the Court of Appeal means that, at the stage of substantive consideration of the appeal, the error must be one which would cause the appeal to be allowed either to the extent of a remittal or through a complete reversal of the Adjudicator's decision. Only once the conclusion has been reached that such an error of law has been made can evidence which was not before the Adjudicator, even of up-to-date circumstances, personal or country, be examined to see whether the appeal should still be allowed either in whole, or in part to the extent of a remittal. The grant of permission to appeal to the Tribunal does not itself suffice to make such evidence admissible.
It is important in the light of that very clear decision that the Tribunal point out that what it said obiter in MA* (Fresh Evidence) [2004] UKIAT 00161 in paragraphs 21 to 23 is wrong in relation to evidence of up-to-date circumstances under the 2002 Act. We had wrongly seen the combination of sections 101 and 102(2) as giving rise to an issue of construction as to when evidence of subsequent events could be admitted, to be resolved pragmatically in the context of the well-known approach in Ravichandran v SSHD [1996] Imm AR 97.
Of course the restrictions on fresh evidence referred to in CA do not apply where the fresh evidence itself is necessary to establish the error of law. There may be evidence which relates to procedural unfairness or which sets out the material or argument which was in fact placed before the Adjudicator, or which evidences the unusual but now recognised class of error of law which is an error of fact; see E v SSHD [2004] EWCA Civ 49.
Mr Dutton submitted that there was an error of law in paragraph 45 of the determination in the Adjudicator's conclusion that there was no evidence of exceptional circumstances of dependency between the Appellant and her adult children. He said there were such circumstances: the Appellant's age, which led Mr Dutton to describe her as “ very elderly”, her illiteracy and the fact that one daughter was in Germany and she did not know where one son was. This all made her the more dependent on the two of her sons who were in the United Kingdom and unmarried.
We reject this entirely. The Adjudicator knew well that the Appellant was 56 and not “ very elderly”, illiterate and knew of the location of the children, at least as described by the Appellant in paragraph 43. (The Adjudicator there says that the Appellant is living with her former husband and three adult children in the United Kingdom, as the Appellant had claimed.) The Adjudicator considered those factors in the context of family life. Mr Dutton conceded that it would only be exceptionally that family life could be found to exist between a parent and adult children. He also accepted that there was no evidence before the Adjudicator that the adult children could not return to Turkey. The issue of dependency, he accepted, had not been explored “ in significant detail”, to use his words, before the Adjudicator. In fact the determination did not refer to any submission that some exceptional dependency should be found to exist because of the factors relied on by Mr Dutton. There is no suggestion that the record or evidence of submissions is inaccurate and there is nothing to suggest that the Adjudicator failed to deal with any submission about dependency that had actually been made to her.
We do not consider that the factors relied on could possibly show that the Adjudicator had erred in law in her conclusions in relation to family life and the proportionality of return. This is particularly so in the light of her correct conclusion in paragraph 44 that there was no evidence that any of them had been recognised as refugees or had any right to remain in the United Kingdom.
The only possible error of law in the Adjudicator's determination, and it is not one upon which we express any concluded view, is one which favoured the Appellant. It may well be that when considering the factual ingredients of family life for Article 8 purposes, the standard of proof is not one of reasonable likelihood but a balance of probabilities.
However, even if there had been an error of law, as contended by Mr Dutton, it would not follow that any new evidence then became admissible. It would still be necessary to show that that error had had a material effect on the decision in...
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