Demirkaya v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date23 June 1999
Date23 June 1999
CourtCourt of Appeal (Civil Division)

Court of Appeal

Stuart-Smith, Laws LJJ Jonathan Parker J

Haci Demirkaya
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

A Nicol QC and M Henderson for the appellant

M Bishop for the respondent

Cases referred to in the judgments:

Cozens v BrutusELRUNK [1973] AC 854: [1972] 2 All ER 1297.

Senitharajah Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97.

Lawrence Kagema v Secretary of State for the Home Department [1997] Imm AR 137.

Boban Lazarevic and ors v Secretary of State for the Home Department [1997] Imm AR 251.

Adan v Secretary of State for the Home DepartmentELR [1999] 1 AC 293: [1998] Imm AR 338.

Asylum citizen of Turkey seriously ill-treated in the past weight to be attached to that experience in assessing risk in the future Ravichandran considered the need to show changes in circumstances in the country if past experiences are to be discounted.

Appeal from the determination of the Tribunal which had dismissed the appellant's appeal against the dismissal by a special adjudicator of his appeal against the refusal of the Secretary of State to grant him asylum.

The appellant was a citizen of Turkey, a Kurd and a sympathiser with the PKK. The Tribunal accepted his account of past material events, including his serious ill-treatment while in detention. It concluded however that he would not be at risk on return to Turkey, even though he would be questioned on his return and his earlier history might be revealed.

Counsel argued that the Tribunal had failed to give sufficient weight to the applicant's past experiences in Turkey and had erred in law in relying on its interpretation of Ravichandran.

Held:

1. While not every beating would properly amount to persecution, repeated beatings might well do so.

2. However past experiences of persecution substantially supported a well-founded fear of persecution in the future, absent a significant change of circumstances in the country concerned.

3. In Ravichandran it was clear that there had been a significant change in circumstances in Colombo: in the instant case the Tribunal had not pointed to any evidence of a change in circumstances in Turkey.

Stuart-Smith LJ: This case has a protracted and unfortunate litigation history. The appellant, who is a Turkish Kurd, arrived in the United Kingdom on 6 October 1993. He immediately applied for asylum. His claim was refused by the Secretary of State for the Home Department by letter, dated 1 June 1994. He appealed. The appeal was heard over two days by a special adjudicator, Mr Curzon Lewis, on 20 September and 15 November 1995. His determination, dismissing the appeal, was not promulgated until 15 August 1996. The Immigration Appeal Tribunal (the Tribunal) granted leave to appeal and allowed the appeal on 28 October 1996. They found that the inordinate delay between hearing the evidence and the promulgation of the decision was in itself sufficient to demand that the special adjudicator's determination be set aside. The appeal was remitted to be heard by another adjudicator.

The appeal was heard by special adjudicator Mr Pullig on 1 May 1997. A determination dismissing the appeal was promulagated in early July 1997. The Tribunal refused leave to appeal. It is unnecessary to go into the details of those decisions because on 9 February 1998 Moses J, on an application for judicial review, quashed the Tribunal's refusal of leave. The appeal was heard on 24 August 1998 and the determination, dismissing the appeal, promulgated on 18 September 1998. The Tribunal refused leave to appeal; but I granted it on 28 January 1999.

The effect of the Tribunal's decision was that they accepted the appellant's account of what had happened to him in Turkey, but they concluded that if he were returned to Turkey he would not face persecution and therefore he had no well-founded fear of it. It is a notable feature of the Tribunal's decision that, although they accepted the appellant as a credible witness, nowhere do they set out his account of what had happened to him. Indeed, when they summarised the position as they saw it, they stated:

(4) He was arrested twice in 1993 but he was released without charge.

When one considers what in fact happened to him during these two periods of detention, as I shall shortly relate, this seems to me to be a masterpiece of understatement.

The appellant was born in Gurun in Eastern Central Turkey in January 1956. He became a non-violent sympathiser and PKK activist who campaigned for the organisation by collecting funds, distributing publicity material and taking part in meetings and rallies. While in the country he also took food to the guerrillas in the mountains. In 1975 and 1976 he was arrested on a number of occasions and subjected to falaka, beaten up and deprived of food and water by the local gendarmerie. On one occasion in about 1975 he was subjected to a particularly vicious attack when his back was sliced by a bayonet. Mr Curzon Lewis saw 35 vertical scars about 2 inches long on the appellant's back between his shoulders. These were the result of this attack.

In about 1976 he moved to Istanbul as a result of the persecution, but appears to have returned to Gurun from time to time. He worked as a painter and decorator. In February 1993 a PKK placard appeared on the building site at which he was working and the appellant was arrested as he was recorded as a PKK sympathiser; he was detained in Gayrettepe police station, which is the headquarters of the political police. He was detained for one week during which time he was subjected to falaka, beatings and made to lie in iced water. He was released without charge.

In June 1993 the appellant was again arrested and detained for a week by the political police. He was again subjected to the same ill-treatment as on the previous occasions. Thereafter, three or four of the policemen then broke a window on the third floor of the building, pushed the appellant through it cutting him and causing him to bleed profusely. He was then...

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