Case No: C5/2007/2312
Neutral Citation Number: [2008] EWCA Civ 162
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. AS/59157/2003]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 12th February 2008

Before:

LORD JUSTICE TUCKEY
and
LORD JUSTICE WILSON
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Between:

	MK (TURKEY)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Ms Degiremci (instructed by Messrs Faraday) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Lord Justice Tuckey:

1.	This is a renewed application for permission to appeal by MK from a decision of the AIT which, on a full reconsideration, dismissed the applicant’s appeal from the Secretary of State’s rejection of his claims for asylum, humanitarian protection and Human Rights Act relief.  

2.	The applicant, a thirty-five year old Alevi Kurd from south-east Turkey, arrived illegally in the United Kingdom on 1 October 2003 and claimed asylum two days later.  He claimed that he was related to members of the PKK and a supporter (but not a member) of HADEP and DEHAP.  On completion of his military service in 1994 he had been taken to the local police station, interrogated, detained overnight and asked to become a village guard.  Following this incident he moved to Istanbul.  In March 1995 he was present at a demonstration following the killing or four Alevi men at a religious ceremony as a result of which he was arrested, detained and seriously physically ill‑treated by the anti‑terrorist police.  Thereafter from time to time his house was raided.  He was detained, questioned, beaten and ill‑treated in October 1998, March 2000 and May 2002.  All of this was accepted by the tribunal.  

3.	But the applicant said he fled Turkey following an incident in June 2003, when he was asked, on behalf of a cousin who was a PKK guerrilla, to get medical help for a friend, Hasan.  He took Hasan first to a private hospital, then to a public hospital where he allowed Hasan to use his identity card to try and obtain treatment.  The hospital staff became suspicious.  The two men were arrested by police and transferred to the anti‑terrorist branch where they were separated.  The applicant says he was accused of being a member of the PKK and tortured.  He was told after several days that Hasan had confessed, but he (the applicant) did not believe this.  After five days he agreed to become an informer but was detained for a further two days before he was released.  By this time his wife had also been arrested, detained and tortured, and the two of them were released together.  They returned home, but after ten days they were again arrested and asked if they had obtained any information.  They were released on the applicant’s promise that he intended to do so soon.  He then decided that it was no longer safe for him to remain in Turkey and found an agent who was prepared to help him leave the country.  The agent could only help one of them so, as he was in more danger than his wife, he left and she remained in Turkey where she and their son still live.  

4.	The tribunal rejected the applicant’s account of these events in 2003, concluding that they “simply did not happen”.  It gave its reasons for these conclusions in paragraphs 60-62 of its determination.  It said there were many discrepancies in the applicant’s account and they detailed the discrepancies which they relied on.  

5.	I have considered paragraphs 16-20 of Ms Degirmenci’s statement pursuant to paragraph 4.14A(2) of the practice direction as to why the discrepancies which the tribunal relied on cannot be sustained.  Her argument persuades me that it is well arguable that the tribunal was indeed mistaken in thinking that there were discrepancies in some, or even all, of the respects which it relied on.  

6.	The tribunal also concluded that the applicant would not have been released if he had genuinely been arrested for helping a PKK member, or if “as the appellant stated” Hasan had confessed.  But the applicant did not say that Hasan had confessed, so the premise for these conclusions appears to be unsound.  

7.	Now the tribunal’s findings about the events of 2003 were obviously very relevant to its assessment of risk on return.  In making that assessment, the tribunal noted that no harm had come to the applicant’s wife and child since he had left, although on a few occasions the police had been to ask about his whereabouts; and that his two brothers remained living in Istanbul without difficulty.  So the tribunal concluded that the applicant would not now be of any real interest to the authorities if returned.  

8.	But although the tribunal referred to the country guidance case of ACDOG [2003] UKIAT 00034, subsequently confirmed in IK (Returnees - Records – IFA) Turkey CG [2004] UKIAT 00312,  it is not clear whether it took into account the significant history of persecution between 1994 and 2002 which it had accepted.  The tribunal say that it would have reached the same result if it had accepted the applicant’s account of events in 2003 because they say he was released without charge to become an informer and in fact had no information to provide.  I have to say that I do not find this a convincing reason for ignoring or overlooking the incident of 2003, if indeed it had taken place.  

9.	All in all, for the reasons I have given, I have some unease about the tribunal’s decision in this case and so I think permission to appeal should be given to allow this court to consider the matter at a full hearing at which the Secretary of State will be represented.

Lord Justice Wilson:

10.	I agree.

Order:  Application granted