KK v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton,D B Casson,His Honour Judge N Huskinson |
| Judgment Date | 07 May 2004 |
| Neutral Citation | [2004] UKIAT 101 |
| Court | Immigration Appeals Tribunal |
| Date | 07 May 2004 |
[2004] UKIAT 101
Mr C M G Ockelton (Deputy President)
His Honour Judge N Huskinson (Vice President)
Professor D B Casson (Acting Vice President)
IMMIGRATION APPEAL TRIBUNAL
KK (Article 1F(c)) Turkey)
This determination concerns the ambit of Article 1F(c) of the Refugee Convention, which excludes from the benefits of that Convention persons who have been guilty of acts contrary to the purposes and principles of the United Nations.
The Appellant, a citizen of Turkey, appeals with permission against the determination of the Chief Adjudicator, HH Judge Hodge, OBE, dismissing his appeal against the decision of the Respondent on 8 April 2001 to grant him limited leave to enter. His appeal is under section 69(3) of the 1999 Act and is on the grounds that any requirement that he leave the United Kingdom at the end of the period limited by his leave would be contrary to the United Kingdom's obligations under the Refugee Convention.
This determination has had a long period of gestation. We heard oral arguments on 16 th and 17 th April 2003, when the Appellant was represented by Mr Scannell, instructed by Deighton Guedalla, and the Respondent was represented by Mr Tam, instructed by the Treasury Solicitor. There were a number of matters left uncompleted, and we made directions for the forwarding to the Tribunal of certain information and any further written submissions, with both parties having liberty to apply for the appeal to be restored for further oral hearing. There were extensions of time for compliance with those directions, but by the beginning of July 2003, we had received submissions from both sides and an acknowledgement that neither side wished to make any further oral submission. Shortly thereafter, a member of the panel became ill. Before we had prepared our determination, an important further document, the UNHR's revised ‘Guidelines’, dated 4 th September 2003, became available to the parties. That document, together with the parties' indication that they had no further submissions to make based on it, was sent to us only in mid-March 2004.
The Appellant arrived alone at Heathrow on 10 th March 1992, when he was aged about eighteen. He claimed asylum. For some reason, he was not interviewed about that claim for over three years. The basis of his claim has not changed substantially. He is a Kurd and a Kurdish nationalist. His political views and activity are stated by his solicitors as that he has “ a known history of activism on behalf of the PKK (and in alliance with Dev Sol) having been arrested, interrogated and detained for short periods on seven different occasions in Gaziantep and Istanbul, between June 1990 and February 1992, culminating in his respective implication in a serious bombing incident in Istanbul in February 1992 which forced his departure to seek asylum abroad”.
The PKK, or Kurdistan Workers Party, advocates armed struggle both at home and abroad, to achieve an independent Kurdish state covering territories presently within Turkey, Syria, Iraq and Iran. Dev Sol has transmogrified into DHKP-C or the Revolutionary Peoples Liberation Party–Front. It is a radical left wing Marxist underground group which seeks to use violence to overthrow the Turkish government and create a Marxist Leninist regime in Turkey by means of armed revolutionary struggle. Both Dev Sol and DHKP-C have carried out attacks against Turkish police security forces targets and individuals and both have attacked or tried to attack British and American interests.
The PKK and the DHKP-C are, as it happens, proscribed in the United Kingdom under Section 3 of the Terrorism Act 2000: see the Terrorism Act (Proscribed Organisations) (Amendment) Order 2003.
The Respondent accepts that the Appellant has a well-founded fear of persecution in Turkey for reason of his political opinions. It is for that reason that he has granted him leave to enter, because in these circumstances to remove him to Turkey would breach Article 3 of the European Convention on Human Rights. The Appellant is therefore at no immediate risk of removal from the United Kingdom if his appeal fails. The principal matter at stake is his entitlement to various Social Security benefits, which he can receive as a refugee but not as a person whose expulsion is inhibited merely by the European Convention.
The Secretary of State also acknowledges that if it were not for events in the United Kingdom since the Appellant arrived, he would be entitled to be regarded as a refugee. It is to those events that we must now turn.
On 15 th March 1996, the Appellant was sentenced at the Inner London Crown Court to four years imprisonment for conspiracy to commit arson and three years imprisonment concurrent for arson. The two counts related to two attacks, one on the Turkish and Beyond Travel Agents in Marylebone Street, Marylebone, and the other on the Turkish Bank UK Ltd in Borough High Street, Southwark. In each case, the attack was by petrol bomb; and in each case a red flag emblazoned with the insignia of DHKP was left at the premises attacked. Further background facts are set out as follows in the Secretary of State's skeleton argument. They all appear to be accepted on behalf of the Appellant with a few reservations to which we shall refer.
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“(1) The attacks were aimed at legitimate Turkish businesses operating in the United Kingdom.
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(2) It is accepted that the arson attacks were committed for a political purpose. It is common ground between the appellant and the Secretary of State that the offences were ‘associated with Dev Sol [DHKP] and were manifestly aimed against the Turkish State’ since that is part of the basis of the application for asylum: see paragraph 1(b) of Deighton Guedalla's representations dated 24 November 1997. This is significant because it is therefore common ground that the appellant's criminal acts were aimed at a foreign (friendly) state with the intention of influencing the acts of the legitimate government of that foreign State.
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(3) The arson attacks were part of a concerted effort by two (and probably more) people. In other words, they were planned and premeditated.
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(4) It is also accepted that the flag of the DHKP was placed in the window of the premises as part of the attack by the appellant or his accomplices(s).
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(5) The DHKPC (and the PKK) are a terrorist organisation committed to the overthrow of the Turkish Government by violent means. They have a history of carrying out terrorist attacks including murder.
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(6) The attack on the Bank appears to have been discovered as soon as it was committed and the appellant was arrested immediately afterwards as he fled from the scene (it appears the car that he and his accomplice had borrowed failed to start). It appears that the flames were extinguished by members of the public. It is a reasonable inference that this was not intended by the appellant – the attack was no doubt carried out at the time it was in part at least to minimise the risk of detection and maximise the chance of causing serious damage.
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(7) There is no dispute between the appellant and the Secretary of State that the appellant ‘is a Kurdish nationalist with a known history of activism on behalf of the PKK (and in alliance with Dev Sol [DHKP]’: see paragraph 1(a) of Deighton Guedalla's representations dated 24 th November 1997. it is also correct (and common ground) that the appellant accepts that he supports the PKK which he accepts commits terrorist acts and DHKP/Dev Sol ‘with whom he has been to some extent willing to make common cause’ and that he justified the use of ‘revolutionary force’ against the Turkish State, albeit that he also stated he had never been directly involved in terrorist actions: see paragraph 6(b) and (c) of Deighton Guedalla's representations dated 24 th November 1997.
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(8) It is also common ground that the appellant was an active supporter of the two terrorist organisations prior to his arrest in the UK including propaganda and fundraising activities and ‘is manifestly a political animal’ who maintained contact with his ‘PKK comrades’ while in prison: see paragraph 10(a), (b) and (d) of Deighton Guedalla's representations of 24 th November 1997.
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(9) There is no evidence which shows whether the appellant made any attempt to ascertain whether or not the premises were empty at the time of the attacks. It is apparently accepted that he could not have been sure that persons would not be injured as a result of the attacks or that serious damage would not result: see Deighton Guedalla's letter of 21 st May 2000.
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(10) It appears the trial Judge stated at the conclusion of the criminal trial that he was ‘satisfied that…the detriment to this country of your remaining here is overwhelming’. As such, the trial Judge clearly concluded that the arson attacks were very serious.”
The reservations are as follows. First, the Appellant has, since the time of his interview at the police station, consistently denied taking any part at all in these two attacks. For the purposes of these proceedings, however, his representatives accept that the Secretary of State and the Appellate Authority are entitled to proceed on the basis that the Appellant was in fact involved in them, because of his conviction. In any event, given the Appellant's conviction for these two offences, there clearly are ‘ serious reasons for considering’ that he was involved in those two attacks, which as we shall indicate shortly, is the appropriate test under Article 1F(c) of the Refugee Convention.
Secondly, the Appellant claims that the fact that his sentences were of four and three years concurrent shows that the offences to which he was convicted were not seen as serious. That, in our view, is an...
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