R VELI KARA v IMMIGRATION APPEAL TRIBUNAL
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,Lord Justice Keene,LORD JUSTICE KEENE |
| Judgment Date | 02 December 2003 |
| Neutral Citation | [2003] EWCA Civ 1810 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 December 2003 |
| Docket Number | C1/2003/1488 |
[2003] EWCA Civ 1810
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR JUSTICE DAVIS)
QUEEN'S BENCH DIVISION
Lord Justice Simon Brown
Lord Justice Keene
C1/2003/1488
MISS S NAIK (instructed by Messrs Irving & Co, London NW1 9QB) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
The applicant is a 40-year old Turkish Kurd who arrived in this country on 10th October 2001 claiming asylum, leaving his wife and children behind. His asylum claim was refused by the Secretary of State, as also was his claim that to return him to Turkey would put the United Kingdom in breach of Article 3 of the European Convention on Human Rights.
His appeal to the adjudicator was dismissed on 10th September 2002. His application for leave to appeal to the IAT was refused by the chairman, Mr George Warr, on 23rd October 2002, in these terms:
"The adjudicator in my view gave proper weight to the applicant's past experiences. He accepted that the applicant had been persecuted in the past and that he had been persecuted for a convention reason. In my opinion the adjudicator did not misdirect himself in directing his attention to what would befall the appellant on return. Furthermore, he was not arguably wrong to conclude that he could not be satisfied to the required standard that there was an arrest warrant in relation to the applicant."
His application for permission to apply for judicial review was refused in strong terms by Collins J on the documents on 16th May 2003 and then again, following an oral hearing, before Davis J on 30th June 2003. The application for permission to appeal to this court came before me initially on the documents on 22nd October 2003. The main thrust of the application at that time centred on this court's decision in Polat [2003] EWCA Civ 1059, unreported, 15th July 2003, a decision which afforded support for the IAT's approach in Hayser, rather than the IAT's approach in Polat itself, and which it was effectively being suggested required that asylum be granted to virtually anyone who was suspected of assisting a Turkish separatist organisation. I refused the application on the documents in these terms:
"I cannot accept that the Court of Appeal decision in Polat stands as authority for the proposition that anyone suspected of assisting (at whatever level) any separatist organisation like PKK (KADEK), HADEP or the like is likely at the point of entry on return to Turkey to be handed over to the anti-terror branch and thereby face a real risk of torture. Polat decides rather that the IAT's previous mechanistic guidelines cannot be applied, that material such as that considered by the IAT in Hayser should be taken into account, and that ultimately each case must be decided upon its own facts.
The IAT decisions in Hayser and A do not require all previous cases of Turkish Kurds to be redetermined. I agree with what Davis J said about Hayser in paragraph 8 of his judgment. I do not regard this decision as properly appealable."
I indicated, however, that if this application were to be renewed then it should be renewed to a constitution of this court to include a member of the court in Polat. That direction has been honoured and my Lord, Lord Justice Keene, who was party to the decision in Polat is in today's constitution.
Nothing daunted by these six previous failures to make good the applicant's claim to be at risk of serious ill-treatment were he to be returned to Turkey —and I may say to be there reunited with his wife and children who have resolutely remained at home there, despite there being no financial obstacle to their coming here —Miss Naik has returned to the fray and today sought to persuade us that there is after all a good claim made out for asylum.
Her submissions have centred entirely upon the question as to whether or not the applicant was to be believed in his evidence to the adjudicator with regard to what he said about an arrest warrant having been issued against him. As recorded in paragraph 6 and 7 of the adjudicator's determination:
"He claimed that an arrest warrant had been issued against him." (paragraph 6)
Then:
"He claimed that his older brother had told him about the arrest warrant nearly two months ago."
…
He claimed that the brother had been shown the official arrest warrant …"...
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