Mehmet Koca (ap) Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Carloway |
| Date | 22 November 2002 |
| Court | Court of Session |
| Published date | 29 November 2002 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD CARLOWAY in the petition of MEHMET KOCA (A.P) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: for Judicial Review of: (1) a Determination of an Immigration Appeal Adjudicator dated 7th February, 2002 refusing the petitioner's claim for asylum; and (2) a Decision of the Immigration Appeal Tribunal dated 19 March 2002 refusing leave to appeal ________________ |
Petitioner: Bovey QC, Blair; Drummond Miller WS
Respondent: Lindsay; the Solicitor for the Advocate General for Scotland
22 November 2002
1.FACTS
(a) The Immigration Authority
[1]The petitioner is a Turkish national, born in 1973. He is an Alevi Kurd. He left Turkey in or about February 2000 and arrived at Dover in a lorry on or about 7th March 2000. He made a claim for political asylum under and in terms of the Convention Relating to the Status of Refugees executed at Geneva in 1951 (Cmd. 9171) as amended by the Protocol made at New York in 1967 (Cmd. 3906) on the basis that he had a well founded fear of being persecuted in Turkey for reasons of race, religion and political opinion. More specifically, initially the persecution was said to stem from four sources: his ethnic origin as a Kurd; his religious views as an Alevi Muslim; his support for certain Kurdish political groups; and his opposition to military service in the Turkish army. He maintained that being returned to Turkey by the respondent would be a breach of article 3 of the European Convention on Human Rights and Fundamental Freedoms having regard to the risk of torture or inhuman and degrading treatment.
[2]Shortly after his arrival in the United Kingdom, he, or rather a solicitor on his behalf, completed a questionnaire known as a SEF (statement of evidence form) [Pro.6/2 pp. A1-22]. It is dated 03/08/2000 but this must be an error since it must have been completed in advance of a later Interview in April 2000 which refers back to it. In any event, by the time of the questionnaire, the petitioner was living in Sighthill, Glasgow. In the questionnaire, he said that he had travelled by lorry from Turkey, but did not know which countries he had travelled through. His explanation for leaving Turkey was :
"After Ocalan was arrested the Turkish authorities and facists gave us lots of harassment. We had stones thrown at us. On 15/02/00 there was a protest march re Ocalan's detention. I managed to run away but my friend Yusuf Akca was arrested and under torture gave my name. The soldiers raided my house. I was not there. I was very scared and decided to flee Turkey."
In relation to his political opinions, there was the following exchange in relation to the pro forma questions :
"1. The name of any political organisations with which you have been involved either in the United Kingdom or abroad.
Sympathiser of PKK
2. When and where did you become involved with this organisation
After 1990 in village of Kirkisirak.
3. Any reason why you cannot move to a different village or part of the country.
Kurdish people get the same treatment everywhere in Turkey.
4. When you officially joined this organisation and why
I did not join. I was not an official member.
5. The nature of your involvement with them...
I gave the PKK food, clothes and medicine and was a guide.
6. Any posts/position in this organisation and any activities undertaken with or on behalf of this organisation.
No.
7. Any rallies or demonstrations you have attended...
All the newpoz celebrations and massacre protests. Each May day demonstration.
8. Have any of you family members also been involved in these or any other organisations ?...
All my family were PKK sympathisers."
In relation to military service, the petitioner said that he had received his call up papers in 1993 but had not gone because :
"I am Kurdish not Turkish. I do not want to support Turkey. I am against the use of violence and guns."
He continued :
"I could not stay at home after I failed to attend my medical for military service. I used various false ID cards with names such as Ali Aysolan and Huseyin Yabainkaya."
[3]On 14th April 2000 in Croydon, England, the petitioner was interviewed with the assistance of a Turkish interpreter. In a preamble to the Interview, he said that he was tired before the interview, having travelled all night from Glasgow. He was otherwise fit and well and was aware and happy about the content of the previously completed SEF. A representative from his solicitors was present at the interview. In a further preamble, the basis of the claim for asylum was said to be persecution as a result only of his race or ethnic origin and religion but not political opinion or avoiding military service [Pro. 6/2 p B5]. In relation to the bulk of the Interview, most of the questions and answers were recorded in longhand [Pro. 6/2 pp B1- 15]. These included the following :
"[Q 5] When did you decide to come to the UK ?
[A] On the 15th January when we were protesting on Abdullah Ocalan arrest one of my friends got caught. Apparently during torture he gave my name. After his arrest I did not stay at my home. I thought he would give my name. Two days after his arrest the military raided my home, but I was not there because I knew he would give my name and since 1992 December I lived with a fake Id.
[Q 6] Do you know he gave your name or do you think he did ?
[A] Definitely he gave my name. The military thought I was on the mountains the last 8 years. They did not think I lived in Turkey.
[Q 7] Why do they think you had lived in the mountains for the last 8 years ?
[A] Because a few times they went to my father and said "We shot your son" and my father said "No, my son is not on the mountains but I don't know his whereabouts....
[Q 13] Have you been a member of a political party ?
[A] No. But I sympathise with Kurdish parties.
[Q 14] In what way ?
[A] The PKK, HADEP and previously DEP...
[Q 15] Have you ever actively supported those parties ?
[A] During elections I recruited more people to vote for HADEP and before that DEP...
[Q 16] Have you ever helped PKK ?
[A] Whenever they came to our village we gave them food and drink.
[Q 18] Never helped in any other way ?
[A] Because we knew the area sometimes we told them secure areas, e.g. caves on mountains...
[Q 20] Are you able to freely practise your religion ?
[A] I never practised my religion but my family did.
[Q 21] After your call up did you continue to live in the same village ?
[A] No I did not live in the same village. I went there sometimes but I did not live there...
[Q 24] Did anyone come looking for you when you did not report for your military service ?
[A] Yes many times.
[Q 25] Why leave now ? Why not continue to live there ?
[A] The military generally thought I was with the PKK but when my friend got caught they realised I was not on the mountains with the PKK but in the town."
[4]By decision letter dated 12th January 2001 [Pro. 7/5], the petitioner's application was refused. The decision first dealt with the claim relative to the petitioner's Kurdish ethnic origin. The letter recognised human rights abuses especially in the five provinces in the south east of Turkey most affected by the conflict between the Turkish government and the PKK. However, it relied on the fact that the petitioner did not live, nor would he be required to go to, these areas and stated that as a generality there was no evidence to demonstrate that being of Kurdish origin was of itself sufficient to demonstrate a well-founded fear of persecution in Turkey. Secondly, the letter dealt with the petitioner's claim in relation to military service and dismissed it on the grounds of implausibility (later called lack of credibility) for two reasons. First, any conscientious objection to military service as stated in the SEF was inconsistent with the petitioner's admitted support for the PKK, which it found to be a well known terrorist organisation. Secondly, the letter picked up an apparent inconsistency in the petitioner saying at interview that he had lived under fake identities since December 1992, because of his decision not to respond to his call up papers, yet in the SEF saying that his call up had not occurred until 1993. It also rejected the notion that any fear of persecution stemmed from the petitioner's call up given the time lapse since that had occurred. Thirdly, so far as political involvement was concerned, the letter dealt with this briefly by concluding that any enquiries about the petitioner by the authorities would have been justified by reason of his admitted involvement with a terrorist organisation. Fourthly, in relation to religion, it was noted that one third of the Muslim population in Turkey was Alevi and that there was no evidence of persecution, albeit that some, both Turks and Kurds, were viewed with suspicion by Sunni Muslims. Furthermore, the petitioner had not said that he practised his religion. Finally, as a general remark said further to reduce the petitioner's credibility, it was stated that a genuine refugee would have sought asylum in the nearest safe country and not delayed until arrival in the United Kingdom. The significant point to note at this stage is that the petitioner's credibility was in issue, indeed was criticised on several fronts, in the letter of refusal. The decision that the petitioner had not established a well-founded fear of persecution was based, to a significant degree, on his lack of credibility.
(b) The Adjudicator
[5]The petitioner appealed to an Adjudicator. A substantial number of additional documents was placed before the Adjudicator. One of the documents was a Statement of Additional Grounds which stated :
"...I am an Alevi Kurd of Turkish nationality. I assert my cultural and ethnic identity. I support political organisations which seek to defend Kurdish political rights. I wish to express my political views by way of exercising my right to freedom of thought,...
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