MD (Turkey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Treacy,Lord Justice Longmore |
| Judgment Date | 01 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1958 |
| Docket Number | Case No: C5/2015/2050 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 2017 |
[2017] EWCA 1958 (Civ)
IN THE COURT OF APPEAL
CIVIL DIVISION
Courtroom No. 67
Room E311
The Royal Courts of Justice
Strand
London
WC2A 2LL
THE RIGHT HONOURABLE Lord Justice Longmore
THE RIGHT HONOURABLE Lord Justice Treacy
THE RIGHT HONOURABLE Lord Justice Singh
Case No: C5/2015/2050
Mr R Bartram, (Solicitor, instructed by Migrant Law Partnership) observing on behalf of the Applicant
Mr C Thomann (instructed by the GLD) appeared on behalf of the Respondent
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Introduction
This is an appeal against the decision of the Upper Tribunal Immigration and Asylum Chamber (‘UT’) promulgated on 3 March 2015.
By that decision, the UT set aside the earlier decision of the First-tier Tribunal (‘FtT’) dated 27 August 2014 and then proceeded to consider the underlying appeal for itself, concluding that the appeal should be dismissed.
Permission to appeal was granted by Moore-Bick LJ on 4 December 2015.
Factual background
The appellant, who is a national of Turkey, was born on 1 February 1995. He claims that he entered the UK on 26 January 2011, and that appears to be common ground. He left Turkey, he says, on 14 January 2011.
Subsequently, on 7 February 2011, he claimed asylum. That application was refused by the Secretary of State on 19 April 2011. However, the appellant was granted a period of discretionary leave until he reached the age of 17 and a half. During that period of his leave, on 3 August 2012, the appellant applied for further leave to remain in the UK on asylum grounds. That application was refused by the Secretary of State on 5 December 2013, and removal directions were issued on the same date.
The appellant appealed against that decision. The appeal was initially allowed by the FtT on 3 February 2014, but the respondent appealed to the UT. The UT allowed the appeal on 24 April 2014 on the ground that inadequate reasons had been given for the FtT's decision. That decision was set aside, and a rehearing was ordered.
The rehearing took place before the FtT on 21 August 2014, and the appeal was allowed on 27 August 2014. The UT heard the respondent's appeal on 3 March 2015 and allowed that appeal on 10 March 2015.
The judgment of the FtT
The appeal to the FtT was brought under Section 82 of the Nationality, Immigration and Asylum Act 2002. The judgment of the FtT on the second occasion was given by Judge KW Brown. At paragraph 5 the judge noted that the appeal was brought under both the Refugee Convention and the ECHR, Articles 2 and 3. The judge also considered the question of humanitarian protection under paragraph 339C of the Immigration Rules (HC 395).
At paragraph 7 of his judgment the judge directed himself both as to the burden of proof and as to the standard of proof. The burden lay on the appellant. The standard of proof was whether there is a ‘real risk’ of persecution and/or ill treatment. At paragraph 12 the judge noted that at the time when the appellant gave his initial information about his claim for asylum he was a minor aged 16. He noted that there was an initial screening interview which took place on 15 February 2011. He also noted that the appellant's Statement of Evidence Form (‘SEF’) was dated 14 March 2011. The appellant had said that he was from a Kurdish family from the village of Sakçagözü, Gaziantep. He said that at the time of his statement, his father was missing. He said that he had younger brothers and sisters in Turkey. He said that they were supporters of the Kurdistan Workers' Party (PKK) which is outlawed in Turkey.
In his statement, the appellant had referred to three occasions when he claimed that he was detained by the Turkish authorities: in January 2009, on 25 February 2010 and on 25 December 2010. The appellant had a formal asylum interview on 11 April 2011. He had also made another statement dated 28 January 2014.
At the hearing before the FtT, the judge heard oral evidence from both the appellant and a friend who had been granted asylum in the UK, a Mr Mehmet Yilmaz. After summarising the submissions made on behalf of both the respondent at paragraphs 24 to 27 and the appellant at paragraphs 28 to 30, the judge set out his findings from paragraph 31. Although the judge had some reservations about the appellant's evidence, he came to the conclusion that the appellant had satisfied the relatively low standard of proof required in this context and therefore did qualify as a refugee: see paragraph 31. The judge was of the view that prior to the hearing the appellant's account had been relatively consistent: see paragraph 32. However, in a passage which Mr Thomann, who appears on behalf of the Secretary of State before us, submits is at the heart of this part of the judge's reasoning at paragraph 33, the judge did note his concern in relation to the appellant's oral evidence where, he said, there was some confusion as to whether a warrant had been issued for the appellant's arrest and whether it was posted to his home in Turkey and then sent to him in the UK. The judge said that there was no clear answer as to the truth of that statement. He said, ‘Had I not been left with some doubt about that evidence, the appellant's case would be much stronger’.
At paragraph 35 the judge noted that he had considered the appellant's account ‘in the round’ and had concluded that it was likely that the appellant had given a truthful account of his experiences in Turkey. The judge then went on to consider whether he would be at any risk upon removal to Turkey and, in particular, addressed the question of possible internal relocation within Turkey. At paragraph 37, the judge noted that the appellant is known to the authorities in his home village and is also known to the regional authorities in Gaziantep. He concluded that the appellant would not be able to return to his home area because of the risks faced there as indicated by what he had found by this stage of his judgment to be the past persecution which the appellant had suffered. At paragraph 38 the judge went on to consider whether the appellant could safely relocate to another area within Turkey and answered that question in the negative. He said:
‘… The appellant is a young man of Kurdish ethnicity. He will have to register in any area that he lives, and there is a chance that his history will become known to the authorities. It is possible that his own and his family's history will become known at the airport on re-entering Turkey. The risks faced by the appellant upon return to Turkey are, in my view, too great, and the UK government will be failing in its responsibilities under the Refugee Convention if it seeks to remove the appellant back to Turkey’.
At paragraph 31 the judge concluded in relation to the ECHR that there was no immediate risk that the appellant would be subject to unlawful killing, and therefore the appeal under Article 2 did not succeed. However, for the reasons he had set out earlier the appeal did succeed on Article 3 grounds which were, in substance, the same as the grounds raised under the Refugee Convention.
In conclusion therefore at paragraph 40 the judge found that the appellant had discharged the burden of proof upon him to show that he was entitled to asylum and for the same reasons there would be a breach of Article 3 of the ECHR should he be removed to Turkey.
The judgment of the UT
The appeal by the Secretary of State came before Upper Tribunal Judge Deborah Taylor. The submissions made on behalf of the Secretary of State were that the judge had failed to give proper reasons as to why he had found the claimant to be truthful, that the judge had not engaged with the Secretary of State's refusal letter, particularly with respect to the issue of internal relocation, and that he had not properly applied the standard of proof.
At paragraphs 16 to 18 the UT judge considered whether there had been a material error of law by the FtT. She concluded that there had been and set aside the FtT decision. She then proceeded to consider the underlying appeal on its merits. She heard oral evidence from the appellant...
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