R (Polat) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ALDOUS,Lord Justice May,LORD JUSTICE MAY,LORD JUSTICE KEENE |
| Judgment Date | 15 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1059 |
| Docket Number | C1/2002/0091 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2003 |
[2003] EWCA Civ 1059
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Lord Justice Aldous
Lord Justice May
Lord Justice Keene
C1/2002/0091
MR M GILL QC and MR J COLLINS (instructed by Messrs Sheikh & Co, London N4 3NX) appeared on behalf of the Appellant
MR P SAINI (instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
I invite Lord Justice May to give the first judgment.
Bulent Polat was born on 1st February 1974. He is a citizen of Turkey, of Kurdish origin and an Alevi. He arrived in the United Kingdom on 29th December 2000. On his arrival he claimed asylum. He was interviewed on 24th January 2001. The Secretary of State refused his asylum application on 14th March 2001. He appealed to an adjudicator and his appeal was heard by Mr CH Bennett on 18th March 2002. In a determination promulgated on 23rd May 2002, the adjudicator dismissed Mr Polat's appeal both under the Asylum Convention and the Human Rights Convention. The adjudicator's determination and reasons were very detailed indeed.
On 25th June 2002, the Immigration Appeal Tribunal granted Mr Polat leave to appeal. The hearing before the Tribunal took place on 12th September 2002, the Chairman being Dr HH Storey. By a determination notified on 20th September 2002, the Tribunal dismissed the appeal. The Tribunal subsequently refused Mr Polat's application for leave to appeal to this court, but Dyson LJ gave permission on 17th February 2003. In doing so he wrote that he had given permission principally on the main ground of appeal to which I shall refer and that he would not have given permission if other points had stood alone.
The appellant's factual case before the adjudicator had a number of strands. One was that his family had connections of various strengths with the separatist organisation known as the PKK. One of his cousins had been a member of the PKK. He himself had allowed fugitive people to stay in his house and he had collected funds for the PKK. His father had been under pressure from the police and an extreme nationalist organisation because they were of Kurdish origin and Alevis. Another strand was that he himself had postponed or evaded military service. He had been arrested on three occasions —in March 1995, January 1997 and July 1998. On each of these occasions he had been detained for two or three days. After he was released he was not required to report back to the police. Under the Refugee Convention, he claimed that he had a well-founded fear of persecution for one or more Convention reasons if he were to be returned to Turkey. Under the Human Rights Convention, he claimed that he would be subjected to inhuman and degrading treatment by the Turkish authorities or other organisations in Turkey if he were returned. In particular, it was suggested that he would be tortured. He gave evidence that in July 1998 one of his toenails had been pulled out by a police officer. While he was in custody, he had been stripped naked and blindfolded. He produced to the adjudicator a medical report from a Dr Yacob dated 17th March 2002. This indicated that he had a deformed toenail on one of the toes of his right foot, a missing upper premolar tooth with the root still in place and haemorrhagic spots consistent with his account that he had been kicked in the testicles.
Mr Polat produced to the adjudicator a copy of what he claimed was a warrant for his arrest issued on 22nd March 2000. There were two versions of this warrant. The adjudicator was not satisfied that either was a genuine warrant for Mr Polat's arrest. He gave very extended reasons for reaching this conclusion.
Mr Polat told the adjudicator that nine days after he had arrived in the United Kingdom, he had learnt that his father was dead. His father had been missing for three days and had then been found handing from a tree in the family garden. The adjudicator accepted that it was sufficiently established that a death certificate produced for his father had been properly issued by the authorities in Turkey. He was not however satisfied that the police were responsible for Mr Polat's father's death. The country assessment for October 2001 indicated that the PKK had enemies other than the police and army, some at least of which were prepared to use unlawful force against them. Even if he were wrong as to the death of Mr Polat's father, the adjudicator was not satisfied that his death was any guide to what might happen to Mr Polat if he were returned to Turkey.
As to Mr Polat himself, the adjudicator accepted that, if he were to return to Turkey, it was reasonably likely that he would be detained on arrival as a person who had evaded military service. He was not satisfied that Mr Polat had been arrested or detained other than on the three occasions to which he had referred. He was not satisfied that he was kept under surveillance at any time. He accepted that he had been involved in helping the PKK and its members, but that what he said he was doing was at the lowest levels. The police had released him on each of the three occasions on which he had been detained. The adjudicator concluded that on none of those occasions were the police satisfied that he was involved in or guilty of any wrongdoing. The adjudicator was not satisfied that at the time Mr Polat left Turkey, the police had an interest in him for any reason other than his failure to undertake military service.
The adjudicator then considered at length extracts from the country assessment for Turkey of October 2001. This dealt with the cessation of armed conflict between the Turkish Government and the PKK in 1999; with amendments to the Turkish constitution designed to pave the way for EU membership; and the likely treatment of those returning to Turkey who had evaded military service. Even if a sentence of imprisonment was imposed, the adjudicator was not satisfied that it would be of such severity as to amount either to persecution or to inhuman or degrading treatment or punishment. Nor was the adjudicator satisfied that Mr Polat was reasonably likely to be tortured while serving such a sentence or before.
Having considered more material from the country assessment, the adjudicator concluded that he was not satisfied that Mr Polat was a "suspected separatist" or that he was wanted for any criminal offence. He further concluded that Mr Polat would be arrested on arrival and sent into military custody to start his military service. But he was not satisfied that it was reasonably likely that he would be maltreated while he was in detention at the airport. Nor was he satisfied that it was reasonably likely that he would be maltreated after his delivery into military custody.
The adjudicator then considered statistical evidence indicating that a very small percentage of failed asylum seekers returned to Turkey from a number of European countries including the United Kingdom and Germany were reported to have been maltreated on arrival. He finally concluded that he was not satisfied that there was a reasonable likelihood that Mr Polat would be the victim of any unlawful violence at the hands of right wing extremists on his return to Turkey or at any time in the future.
Upon these findings, which I have briefly summarised, the adjudicator was not satisfied that Mr Polat was genuinely in fear of persecution either on account of his political opinions or of his Kurdish origin, nor that any fear of persecution which he might have was well founded. Nor did he consider that there was a reasonable likelihood that Mr Polat would be tortured or subjected to inhuman or degrading treatment or punishment if he returned to Turkey. His appeals under the Human Rights Convention and the Refugee Convention accordingly failed.
The grounds of appeal to the Immigration Appeal Tribunal raised certain challenges to the adjudicator's factual findings. These details, however, do not appear to have been pursued and the appeal proceeded on the basis that the adjudicator's factual findings were correct. The main burden of the appeal was to challenge the adjudicator's assessment of Mr Polat's likely treatment if he were to return to Turkey. In their determination, the Immigration Appeal Tribunal recorded Mr Polat's case as based on his contention that he would not be viewed simply as a failed undocumented asylum seeker. The authorities would have a record of his previous detentions and the reasons for them and would thus treat him as falling directly within the suspected separatist category. They would also have a record connecting him to his father again as someone considered to be a suspected separatist.
The Tribunal recorded that in a number of previous determinations the Immigration Appeal Tribunal had taken the view that anyone who had a record of involvement with a separatist organisation such as the PKK would be at real risk of persecution as a suspected separatist. These decisions included the case of Almalikuyu [2002] UK IAT 00749 and Elidimir [2002] UK IAT 00300. The Tribunal was urged to take a different view by counsel representing the Secretary of State, who referred to other decisions including Kurucan [2002] UK IAT 03175; Aktas [2002] UK IAT 03136; and Guzel [2002] UK IAT 03743. The Tribunal itself also referred to Tasyurdu [2002] UK IAT 03722.
The Tribunal considered that it had to take a view about how the authorities in...
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