United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: AA/13244/2011

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Determination Promulgated
On 9th July 2012, 12th February, 21st May, and 7th August, 2013	On 27th September 2013

 

 

Before

 

Upper Tribunal Judge Chalkley

 

Between

 

ozgur babahan

(No anonymity order made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation:

 

For the Appellant: Ms Lagunju of Counsel instructed by Howe & Co (09.07.2012)

Ms E Boateng of Counsel instructed by How & Co (12.02.2013, 21.5.2013 and on 07.08.2013)

For the Respondent: Mr C Avery, a Home Office Presenting Officer (9.07.2012)

Mr T Melvin, a Senior Home Office Presenting Officer (12.2.2013, 21.05.2013 and on 07.08.2013)

 

 

DETERMINATION AND REASONS

 

 

1. The appellant, Mr Ozgur Babahan, is a citizen of Turkey who was born on 22^nd February, 1991. He entered the United Kingdom clandestinely on 8^th May, 2007 and claimed asylum on 10^th May, 2007.

 

2. He appeals the decision of the respondent, taken on 18^th November, 2011, to remove the appellant as an illegal entrant.

 

3. The appellant claims to have left Turkey on 2^nd May, 2007 and travelled across Europe in a lorry, entering the United Kingdom, clandestinely, in the early hours of 8^th May, 2007.

 

The Basis of the Appellant’s Claim to Asylum

 

4. The appellant made his claim to asylum on the basis of both his own actual and perceived political involvement in Turkey which, he claims, has caused him to be detained and tortured and also because of the involvement of his family members in political activity in Turkey which has led to a large number of them having been granted asylum in the United Kingdom. The appellant appealed the decision of the Secretary of State and his appeal was heard at Newport on 6^th January, 2012, by First-tier Tribunal Judge Powell.

 

5. The appellant claimed that he had been arrested on 13^th February, 2007, and taken to the anti-Terrorist Headquarters in Istanbul on Vatan Street where he was interrogated and, he claims, was tortured, but released after two days. The judge recorded this evidence in paragraph 29 of his determination, but Judge Powell found that although the appellant was detained by the authorities in 2007 for fly-posting, he was not tortured. He found that the appellant is Kurdish. Unfortunately, the judge failed to give reasons for his finding at paragraph 85 of his determination, that the appellant was not tortured. He also made adverse credibility findings based upon the evidence of the appellant and, having rejected that evidence, then proceeded to reject the evidence of the appellant’s witnesses, rather than considering the evidence in the round. He accepted that the appellant was related to a number of individuals sharing the appellant’s name who have been recognised as refugees, but failed to assess the risk to the appellant as a relative of recognised refugees, despite having referred to the appellant as having “significant family connections with separatist organisations”. It was for these reasons that on 9^th July, 2012, I, sitting with First Tier Tribunal Judge JKH Rintoul, (as he then was) set aside the decision of the First-tier Tribunal Judge.

 

The Hearing on 12^th February, 2013

 

6. At the hearing on 12^th February, 2013, the appellant and interpreter both confirmed that they understood each other and the appellant confirmed his full names, his address and his date of birth. Counsel referred the appellant to a statement appearing in his bundle at pages 10 and 11. The appellant recalled the statement and identified his signature at the end of his statement. Counsel confirmed that it was her intention to ask the appellant to adopt the statement. I pointed out, however, that it did not bear any signed endorsement by an interpreter confirming that before having been signed by the appellant, it was read to him in his own language and that he was happy with the contents. I explained to Counsel that it might be that if, when later answering questions the appellant contradicted something in that statement, that I might believe that the appellant was not telling the truth. Unfortunately, I could not be certain that the statement in front of me had actually been read to the appellant so that he had approved the contents. I suggested that it would be unfair for me to allow him to adopt the contents of the statement if it were an early draft and for those reasons I was not prepared to allow him to adopt it. The appellant was then referred to the statement appearing at pages P3 to P9 in the bundle. He identified his signature at the end of it and confirmed that he wished to adopt it.

 

7. I gave the appellant a warning. I explained that he was entirely free to adopt, as part of his evidence before me, any document he wished, but that he should only do so if he was entirely satisfied that the contents were completely true and accurate in all respects. I explained that in the event that he later contradicted something in his statement then, that might cause me to believe that he was not telling the truth. I explained that if he gave me reason to believe that he was not telling the truth then there was a danger that he might damage his appeal. I emphasised that he should only adopt the statement if he was completely satisfied as to the contents of the document. The appellant confirmed that he understood the warning. He told me that he wished to adopt the statement. For completeness I set out, in the Appendix to this determination, that statement appearing in pages 3 to 9 of the appellant’s bundle. It was dated 21^st December, 2011 and written in response to the letter of refusal from the Secretary of State for the Home Department..

 

8. The appellant told me that he was born in Hosgeldi, in the town of Bulanik in the province of Mus. It is in eastern Anotolia and the ethnic make-up of the population is Kurdish. People are involved in agriculture and raising animals. People have left wing views and they struggle for their Kurdish freedom. He is a Kurdish Muslim.

 

9. The appellant’s father is Firik Babahan and his mother is Yubar Babahan. His father died in December 2003. He has three siblings and they are living in Turkey. His brothers’ names are Mehmet, Yusuf and Nurla. He has three brothers and he also have three sisters; the sisters are Nurcan, Mejla and Nazar.

 

10. The appellant explained that his family members have difficulties with the authorities, because they are a Kurdish family and because they are political, defending our rights. Family members are harassed by both the gendarmes and by special teams.

 

11. He said that he recalled that when he was young, the special teams raided the houses and searched them many times. They searched the food stocks; if there was too much food in people’s houses then most people were accused of supporting the PKK.

 

12. His father’s sister joined the PKK and because of that, the family came to the attention of the authorities and they were harassed more. The authorities knew that his father’s sister had joined the PKK, because the government checked on who was coming and who was going from the village and there were informers living nearby informing the government about what was happening in the area. The authorities knew that she joined the PKK.

 

13. The appellant started primary school education in 1996 or 1997. His school was in the village where he lived. In the village all the teachers were Turkish. While the appellant was at school his teachers treated him badly because he and other Kurdish children were unable to speak the language of the teachers. They treated them badly for not learning their language.

 

14. The appellant told me that he had been arrested.

 

15. Once he was arrested in the village and once he was arrested in Istanbul. He was arrested in the village on 23^rd March, 2003. He had been playing outside by the house and an old man approached his and gave him a magazine. He asked the appellant to distribute the magazines to people’s homes in the village. The appellant did not know this man and did not think he was from the village because he had never seen him before.

 

16. People in the village the appellant comes from are all related to one another. This man gave the appellant ten or so magazines and the appellant gave them to a few houses. He said that he put them in letterboxes and as he was doing this suddenly noticed gendarmes in a jeep surrounding him on the side of the road. He left the magazines at the door of the houses or put them through the letterboxes. The gendarmes arrived fifteen minutes or so after the appellant had distributed the magazines and they put him into their jeep. There were six jeeps, but two of them stopped and arrested him. He was taken to Erentepe gendarmerie and was 11 years old when this happened.

 

17. He was held for four days and the day after his arrest he was asked questions. They asked where he obtained the magazines from and he told them that they were given to him by an old man. They said, “No, you are lying”. They suggested to him that the PKK had given them to him. They asked him if the PKK came to his home and he said that they did not. Again they accused him of lying and they started beating him.

 

18. They kept accusing the appellant of being a PKK terrorist and when they questioned him they slapped him. They kicked him on his knees with their boots and they held his ears and twisted them and told him to speak up. They poured cold water over him and told me that his family were all terrorists too. They gave him something which made him feel, “very shaky”. He said he thought that they gave him an electric shock, because they poured water over him. He didn’t know if he had an electric shock. They had a machine which, when it touched his body made him shaky and gave an unbearable pain. He thought it would kill him. They threw water at his face from containers and they gave him very little food.

 

19. When he was beaten up the appellant was in a small dark room and was held in that room for the four days that they kept him. There was no heating and it was cold. He had no change of clothes and was not allowed to see or speak to anyone. He was afraid and says that he was treated very badly.

 

20. The appellant confirmed that he understood the interpreter and had no difficulty with her translation.

 

21. The appellant said that his health was very bad, because of being beaten and given electric shocks. He had “hit” marks on his body. He was tortured and could not open his eyes. He was finished and he could not move. He could not do anything.

 

22. The appellant told me that he did not know that the magazine was illegal. The PKK did not come to the appellant’s home. He was not a terrorist, he was only a Kurd. They told him that he was a terrorist.

 

23. His father was very ill and after four days his mother came and they let the appellant go, but they said that they would keep an eye on him. They took his fingerprints. They called his mother and told her that if he did anything like this again they would kill him, they insulted my mother in front of me and he was then released.

 

24. He was not left alone. The police came to the home and checked the food stocks. They checked to see if the family had too much food and were storing food for the terrorists. After his arrest, they searched his house but they did not search other houses in the village. Two days after my release they again searched his home.

 

25. After release the Police focused on the appellant and they came to see if he had joined the PKK. They especially came to the appellant’s house to find evidence against him, he said. Before his arrest the authorities came and searched all the houses in the village. No one knew when they were coming. Sometimes they came in the morning and sometimes the evening of the same day. It was not predictable what time of day or night they would come, or what they were going to do. Sometimes they came twice a day and sometimes they came once every two days. The appellant knew when other houses in the village were being searched because the appellant could see what was happening in the village.

 

26. After his release from detention he knew that the authorities did not go to other houses so often, because they only came to his house. When they came they said that they had come to check on his house because he had possession of magazines and they wanted to find out who gave them to him. After they left, the neighbours came to the appellant’s family and told them that they had not been searched that day.

27. Between the date appellant’s release and his father’s death, the gendarmes came to his house many times; he cannot say how many times. It would be probably 50 times between March 2009 and December, he thought. They also visited other houses in the village a few times. They attended other houses in the village more after my arrest. After my release he heard about visits to other houses.

 

28. At that stage I adjourned the proceedings for ten minutes to give the interpreter a break.

 

29. On resuming the hearing, the appellant told me that his family moved following his father’s death. They moved to his paternal uncle’s place in Istanbul. They moved, because after his father’s death the authorities harassed him and his mother could not go on living there on her own, so it was decided that they would move to his uncle’s place. They moved to Kirackoy in Esemyurt in Buyukcekmece district in Istanbul. It was an area populated by Kurdish people. The uncle he stayed with is called Filit Babahan. He had two other uncles nearby who are both paternal uncles. Both were involved in politics and were members of DEHAP. DEHAP no longer exists and was closed down by the government. DTP, Democratic Toplum Partici has now taken over.

 

30. The appellant said he became involved with the DTP at the beginning of 2006. He went to their party building. It was a legal party, but later it was closed down by the Government. He went to it, because Kurds met there and he wanted to hear the discussions. They were political discussions. Sometimes he would go two or even three times a week to listen to their discussions.

 

31. When he and the family moved to Istanbul, he went to school. Sometimes he distributed leaflets and posters and sometimes he attended protest demonstrations. He attended every event organised by the party. He did not belong to the party, because he was not old enough. He handed out leaflets to passers-by and sometimes he put them through front doors. He put up posters on the walls. The DTP defended Kurdish people’s rights and their language.

 

32. The meetings were illegal, he told me. If a poster had anything to do with Kurdish people’s freedom, or if a meeting was organised to protest about anything against cruelty for Kurdish people, the government did not allow such material to be distributed or put on the wall. He knew the government would not like him doing it.

 

33. He attended demonstrations organised by DTP many times. He was beaten, but managed to get away, but during one of them he was caught on 13^th February, 2007.

 

34. Many times he was beaten, but he managed to get away from the Police. They, the police, were attacking people and interrogating people.

 

35. The appellant attended demonstrations from 2006 and he remembered particularly one on 16^th August, 2007, when he went with his friend to an area called Gaziosmanpasa. There, the demonstrations were taking place and the police attacked the crowd. The demonstration was held, because the police and the PKK were having violent struggles against one another. Their politics were violent against Kurdish people. The appellant and others demonstrated against the bloodshed by the Kurdish people.

 

36. The appellant attended the demonstration with three friends and shouted slogans. They wanted peace but had to escape as the police attacked the crowd. It was an illegal demonstration. They ran home to Serken and in Serken’s home, his friend told him that the police had photographed them. When the appellant knew this he was frightened, because if he was caught again he thought that he would be killed. The friends suggested that they should separate. His friends were older than him and one of them arranged transportation in a lorry which took them to Iran. The appellant stayed at Serken’s house for about two weeks before travelling. He did not return to his own home. He did not make contact with his own family. He left for Iran on 31^st August, 2006. He arrived in Iran on 1^st September, 2006 in the evening. A smuggler took them to a hotel where they remained for seven days and then they left Iran when the smuggler returned with a passport and tickets. The passport was written in Arabic. The smuggler said that after the appellant passed the control point he would take the passport back from him. He said that the appellant was going to Croatia by plane. He did not know where this was. The agent took the appellant to the airport. The smuggler was left behind. The appellant and his friends gave the passports to the agent’s colleague. They flew to another place and realised that they were in Austrian, not Croatia. They went to passport control and the official stopped them and they were arrested. This was on 7^th September, 2006. The appellant gave the Austrian police a false name, because, he told me, he thought that if he gave them his own name he would be sent back to Turkey. He was kept for four days and then put in a detention centre. He spoke to somebody in Turkish and explained that he feared for his life. At the detention centre he was given an ID card and was examined by a doctor. There were many policemen there and he was frightened and worried. He missed his family. He told his friend that he wanted to return to Turkey. He told the authorities in Austria that he feared for his life and told them why. He returned to Turkey from Austria on 19^th September, 2006.

 

37. Because of the lateness of the hour, the matter was then adjourned until 18^th March, 2013, at 1:45pm.

 

The Hearing on 21^st May, 2013

 

38. The matter next came for hearing before me on 23^rd May, 2013 when the appellant was again represented by Ms Lagunju and the respondent by Mr Melvin. I explained to both representatives that after a long adjournment I would normally read aloud my record of the earlier proceedings to ensure both representatives agreed it was a true and accurate copy. Both representatives told me that they did not wish me to do this and were content to rely on my Record of Procedings.

 

39. I reminded the representatives that on the previous occasion the matter was adjourned for lack of court time and that the appellant had been giving his evidence. Counsel told me that she still had some further questions for the appellant.

 

40. I ensured that the appellant and interpreter understood each other and, in answer to further questions from his Counsel, the appellant told me that after he left Austria he travelled for six days in a lorry and arrived in Turkey. A friend in Austria had spoken to the driver who helped the appellant. He left with his three friends with whom he had gone to Austria. They were all older than him. They had organised the lorry trip to Austria and had spoken to the lorry driver who had agreed to take them back to Turkey. The appellant said that he did not decide to return to Turkey but he could not stand it in Austria any longer and was afraid that something would happen to him. He had never left his family before and was missing them. The lorry driver left him somewhere in Istanbul at night time and the appellant asked a passer-by where he was.

 

41. When he went back home his mother asked him where he had been and he told her. He asked his mother if the police had been to the home and she said that they had not. He told her that he had been taped during a demonstration and asked if the police had been asking for him. She said that they had not been looking for the appellant but they had been asking about his paternal uncle.

 

42. The appellant returned to school but at school the teachers treated him badly because he was a Kurd. The appellant again visited DTP party premises and again attended their meetings and demonstrations.

 

43. Sometimes he attended meetings at the DTP offices twice a day and sometimes just once a week. When he went there twice a day it was for meetings. He used to go to the offices in the morning and would then learn about a meeting later in the day. Sometimes he did not go to school.

 

44. The appellant told me that he took part in protests organised by DTP. Often the Turkish police would attack the protests to disperse participants.

 

45. On 13 February 2007 the appellant and friends of his were inviting people to take part in an event condemning the capture of Ocalan. He was distributing posters and handing out leaflets. Party officials had given him the leaflets and the posters which he used to flypost.

 

46. The police caught him in possession of posters and materials on 13^th February, in the Kirackoy area of Istanbul. This was a gendarmerie area. It was gendarmes who arrested him and then handed him to police officers. The police took him to the anti-terror branch in Vatan Street, Istanbul. As they took him in he was blindfolded in a vehicle. It was when he was released he realised where he had been held. At the time he did not know where he was. He was taken into a room and questioned. He was asked where he obtained the posters and leaflets from and told them that they came from the DTP. At the time there was only one person asking many questions. The man then struck the appellant and told him to tell the truth and asked him why he had been distributing leaflets. The appellant explained that Kurdish people were not terrorists. The conflict was escalating at the time and Ocalan’s aim was to put an end to that. The party was calling for Ocalan to be freed.

 

47. The appellant was unable to see but he could hear three voices and his three inquisitors beat him up. They accused him of being a terrorist and was told that they knew all about him. He was also told that they knew all about his uncle. His inquisitors kept asking him questions and each time he gave them an answer he was hit. They accused him of lying and they squeezed his “private parts”. They subjected the appellant to falaka. They made him lie on the floor and tied something to his legs and arms. He did not know what they had used but they then beat the soles of his feet. They were asked him questions at the time. He was beaten on the soles of his feet and on his shins. He was punched and slapped.

 

48. Occasionally they took a break and left and then they would return later. The appellant lost all idea of time. They made him sit somewhere and gave him electric shocks.

 

49. It hurt him a great deal when they squeezed his private parts and on one occasion he fainted. His captors threw water on his face. The appellant was asked on two occasions where he was given electric shocks. The appellant did not answer on the first occasion but gave a long rambling answer which bore no relation to the question. When the question was put again he said that he had no idea where the shocks had been administered but remembered his hands being strapped to a chair with something. He felt pain throughout his body.

 

50. The appellant said he was asked many questions and the more he answered the more they insisted that terrorists were coming to his home. He told them that they were not and they accused him of lying. They said that they knew his family and that they were all involved in political activities. He was told that the PKK came to his home and that he should confess. He did not admit anything. He did not disclose anything about his political views.

 

51. The police knew that he obtained the leaflets from the DTP because he told them so. The appellant was asked how long he was held in captivity and replied that he did not know. When his Counsel put the question to him again he confirmed that he was held for two days. It was on his release that he realised he had been held in the anti-terror branch. On releasing him the police had said “our eyes will be on you at all times. You are not to change address. Our investigations will continue, we will gather more information about you.”

 

52. On his release he went to stay with his relative, Ahmet Demir and did not go home. He went to his relative’s home because his own home was quite a distance away and he thought that the police might come after him.

 

53. He was in a terrible state when he arrived at his relative’s home. His relative looked after him and after two days called a doctor. The doctor was called because the appellant’s feet were swollen and he was depressed. The doctor gave him some cream, some painkillers and something to calm him down. The appellant became more and more afraid that the police might come after him. After the appellant had taken his medication the bruises had disappeared. He did not go out of the house because he was frightened that he might be captured by the police who might have been able to obtain more information about him.

 

54. The appellant did not contact any family members. He left Turkey on 2 May 2007. He decided to leave because his relative told him that he had spoken to the appellant’s uncle and that the police were still looking for him. The appellant became more scared. He was told that the police had gone to his home and asked the appellant’s whereabouts.

 

55. His relative told the appellant that the appellant’s uncle was going to speak to the appellant in the evening. On that day his uncle took him and at night he was placed inside a lorry. The lorry driver allowed him out only at night time to use a lavatory. He arrived in the United Kingdom six days later on 8^th May, 2007.

 

56. The appellant confirmed that he has six siblings. On arrival in the United Kingdom he went to live with his uncle, Orhan. Orhan has children. They all like the appellant. The appellant was treated very well. He now lives with a friend. He stopped living with his uncle some two years ago. The son of his father’s paternal uncle is called Mehmet Selin Babahan. He is currently in the United Kingdom and the appellant speaks on the telephone to him from time to time. The appellant does not see him very often because he lives a long way from here but tries to see him when he visits London. Selin left Turkey because he was under state pressure and because of his support for the Kurdish cause and the party. He had to move to Cyprus and experienced similar problems to the appellant in Cyprus so he came to the United Kingdom.

 

57. Cahit Babahan is the appellant’s paternal uncle. He has made a statement in support of the appellant but is not here to give evidence today. He could not make it but he has attended previous hearings. He claimed asylum in the United Kingdom.

 

58. The appellant was referred to the documents at T1 in the Home Office bundle and said that he had been on six or seven demonstrations organised by the Kurdish community. He had been on one this year to celebrate Nevroz.

 

59. Apart from two uncles, the appellant has lots of other relatives in the United Kingdom. All of them are here for political reasons. Some who came in the 1990s took advantage of, “this law”. Some of them were granted asylum status under this law and others got it under asylum.

 

60. The appellant has fifteen family members in the United Kingdom and he believed that seven or eight of them had been granted asylum. Selin Babahan, Yeter Babahan, Kamiran Babahan, Erhan Babahan, Celinil Babahan, Cahit Babahan, Sahin Babahan and Hasan Babahan have all been granted asylum. They are all from the same village as the appellant and were forced to move to Istanbul or to Cyprus as a result of state pressure and difficulties they had.

 

61. The appellant confirmed that he was named in some of the articles at B1 in the respondent’s bundle.

 

62. The appellant’s paternal uncle found the articles at B1 on the internet. He is Cahit.

 

63. The appellant said that he spoke to his mother on the telephone on Wednesday last week. He speaks to her one or twice a month but he is careful what he says because he is in fear that the phone is tapped. The police had been to his home. The appellant’s mother is too afraid to speak on the telephone in case the phones are tapped but the appellant’s uncle had spoken to the appellant’s mother and his uncle had told him.

 

64. Selin came to the United Kingdom recently and he told the appellant that the police had been to his home. He has been granted asylum.

 

65. The appellant spent his time by visiting and spending time with his relatives and visiting places with his friend. He also plays football and would like to study but is not allowed to do so. Were he to return to Turkey he would come to the attention of the authorities at the airport and would be handed over to the police. He would be detained, tortured and might be killed. He would be taken into the Turkish army and the military will be made aware of his Kurdish background. In his village three relatives of the appellant’s have actually been murdered while doing their military service.

 

66. The appellant said that he did not wish to undertake military service in Turkey because he would be made to kill Kurds. He would, however, agree to undertake military service in the United Kingdom were it to become compulsory. He told me that he has a conscientious objection to military service and would not like to kill Kurds.

 

67. At that stage it became apparent that the hearing may not finish and may need to be adjourned again part-heard. The appellant told me that he did not wish the hearing to be adjourned and would like to carry on. I agreed to adjourn for five minutes at the request of the Presenting Officer although the interpreter had earlier declined a break.

 

Cross-examination

 

68. The appellant confirmed that he has six siblings and his mother living in Turkey and that he had at least 30 cousins living in Istanbul. These were all paternal cousins. Some of them were very young but the older ones certainly are suffering because of their Kurdish background. Selim came to the United Kingdom in 2010. The appellant’s brother is nearly 18 and is himself having problems.

 

69. The appellant confirmed that he had no arrest warrants or summonses from his family members or for himself. He knows that he is wanted in turkey but arrest warrants were not produced. The authorities behave in an arbitrary fashion in arresting anybody when they want to. He was not a member of any Kurdish organisation because of his age. The party did have a youth branch but it was only for those aged over 18 years. The party simply asked people to go and help with flyposting and distributing leaflets which was legal. Whole families used to attend their meetings and so he was not stopped from attending. What he distributed was illegal. He did not think at the time that he would get into trouble by having the documents. The leaflets themselves refer to the demonstration which was planned for 15 February. The demonstrations by the Kurdish population were attacked by the police and also photographed. The party was legal at the time in Turkey but the appellant said he did not tell the police the name of the party. They kept saying that it was the terrorists who gave him the document.

 

70. Shortly before he went to Austria the appellant was at a demonstration which he was told was filed. He was with three friends and he went with them to Iran. He left in the middle of the night and arrived the next day at night time. He travelled for just under 24 hours. He had not paid any money to his friends who had arranged the trip and had also arranged for the trip back to Turkey later. The appellant had not paid any money. He returned to Turkey because he could not bear being away.

 

71. On his return the appellant continued his activities because he did not think the leaflets were illegal. The appellant said that he would not have done anything illegal. He did not remember how many of his friends were arrested but believed that there were five arrested at the same time as him. The appellant did not know what happened to them.

 

72. After return from Austria the appellant attended a further demonstration. He had not mentioned this because he was not asked. He had never said that he was definitely recorded whilst he was at a demonstration.

 

73. The appellant’s mother received a visit from the police during the time that he was in Austria. They did not necessarily come in respect of the appellant but his mother told the appellant that they came and carried out searches. The appellant attended demonstrations even though the police had been to his house because, as a Kurd, it was his right to take part in the demonstrations that Kurdish people attended.

 

74. The appellant said he did not know how many terrorist branches there were in Istanbul. He knew that Selim had claimed asylum and had had contact with him since he came to the United Kingdom. Salim lives near Cahit in Fishguard. The appellant confirmed that he had spoken to Salim about his asylum claim and he remembers Salim telling him that he went to the same anti-terror branch building but everyone arrested on terror charges would mostly be taken there, because it is the central anti-terrorist branch.

 

75. During the appellant’s interrogation after his second arrest he was not aware of police interrogating anyone else at the same time. He was asked to sign a confession but he refused. He was not asked to be an informer.

 

76. The interrogators knew how old the appellant was but they did not care. They did not inform him family of his arrest and in fact family members had called the police who denied that the appellant was in detention. The appellant’s family did not know where he was. He was not released on bail but when he was released he was told that they would “have their eyes on me”. The authorities did not tell anybody when he was being released. The appellant caught a minibus from a bus stop near the anti-terrorist branch and went to his relative’s house. He was able to walk because the bus stop was close to the anti-terrorist building and it was only a short journey to his relative’s house.

 

77. The appellant did not seek medical treatment because he believed that a doctor might contact the police. He said that if a doctor saw him and the appellant had told the doctor that he had been beaten up then he might feel obliged to contact the police about it. The appellant would then get into trouble with the police for daring to complain.

 

78. The doctor who did come and treat him was a private doctor. The appellant thought that his relative had spoken to them. The appellant did not know whether he had tried to call the doctor sooner.

 

79. The appellant confirmed he attended demonstrations in the United Kingdom for Navroz. He did not know where it had taken place but it was in London. The appellant had been sent leaflets which he distributed to people in Wales. The appellant denied that he had paid money for the letter which appears at T1 of the respondent’s bundle.

 

80. Re-examined the appellant said that he is taking medication given to him by his uncle but not taking any medication given to him by his GP. The friends who he went to Austria with were in their 20s, he thought about 25. They had not asked him for any money.

 

81. In answer to questions put by me, the appellant confirmed that his general medical practitioner had not seen the psychiatric report which had been submitted by his solicitors and neither had his general medical practitioner given him any medication or suggested he have counselling. He confirmed that he was allowed to attend meetings of DTP because families attended the meetings and so he was just another child at the meeting.

 

82. I asked the appellant why he believed that were he to be returned now, some five years after he had left, he would be of interest to the Turkish authorities because they had not encountered him during the last five years and would have had no reason at all to believe that he had been politically active. He told me that the reason he feared the authorities was because they believe that the appellant has joined the PKK.

 

83. Unfortunately because of lack of hearing time it was not possible to continue and conclude the hearing. I did suggest to Counsel that she might like to return in the afternoon, when I would take submissions after having dealt with the afternoon’s list, but she told me that that was not convenient to her and that she had a prior appointment; I therefore adjourned to a date to be fixed.

 

The Hearing on 7^th August, 2013

84. I heard submissions from Mr Melvin and Ms Lagunju.

 

85. Mr Melvin reminded me that the appellant had absconded after entering the United Kingdom and only came to the attention of the authorities in July, 2009. He was eventually interviewed in November, 2011. The delay in interviewing him was the responsibility of the Secretary of State and no reason had been given.

 

86. Mr Melvin relied on the Reasons for Refusal Letter and invited me to make adverse findings as to the appellant’s credibility. He asked me to make adverse findings in respect of the appellant’s previous claim in 2006 which he made in Austria. This, submitted Mr Melvin, demonstrated the appellant’s ability to deceive. The appellant denied having claimed in Austria and gave false details. Mr Melvin suggested that the appellant had not been truthful as to how he had travelled to Austria. He claimed that he travelled from Istanbul to Tehran in a lorry leaving one evening and arriving the next morning. During cross-examination he claimed that he had actually arrived the following evening. It was, suggested Mr Melvin implausible that he had travelled from Istanbul to Iran in a lorry and completed the journey in 24 hours, let alone twelve hours.

 

87. Mr Melvin also suggested that the appellant’s explanation as to his ability to be able to return after having made a claim by simply obtaining a passage on a lorry was also implausible. The appellant has not explained how it was that he was able to fund such a journey. Neither was it credible, submitted Mr Melvin, that the appellant would immediately restart his political activities on return to Turkey. The appellant was vague as to why he would take such a risk having fled the country, gone to Austria and then return to Turkey.

 

88. In any event, submitted Mr Melvin, the appellant did choose to return voluntarily to Turkey and, in the circumstances, the appellant’s arrest in 2003 and the events of 2006 could not be said to have given rise to a genuine fear of persecution. The appellant would simply not have returned to Turkey, whether he was feeling homesick or not, if he thought that he would have been at risk.

 

89. So far as 2007 is concerned it is accepted that he was arrested for flyposting. However, the appellant on his own account was released without charge. Had the authorities seriously thought that he was a separatist then, submitted Mr Melvin, greater restrictions would have been placed on him. As to the appellant’s torture claim, his evidence is not credible. It was inconsistent. At paragraph 27 of his witness statement and in answer to question 115 during the course of his interview, the appellant claimed that wires were attached to his fingers and yet he failed to confirm this in giving evidence.

 

90. Despite the appellant’s claimed torture, on his release instead of going home he said he caught a bus and went to stay with a relative. He claimed that he had no contact with his family for three months. No credible explanation has been given as to why he did not make any contact with his family. Mr Melvin suggested that there would have been no reason why his family could not have travelled to the place where he was being detained and collect him.

 

91. The appellant claims that a doctor gave him creams and pills for his trauma but he asked me to note that there was no corroboration even though they could reasonably be expected to have been obtained. He relied on TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40.

 

92. The appellant claimed to be in contact with his mother who refused to tell him over the telephone if the police had visited her home. However, the appellant’s paternal uncle has apparently told him that the police have visited his home and claims that he learnt this from the appellant’s mother. That is a contradiction which undermines the appellant’s credibility, submitted Mr Melvin.

 

93. As to the doctor who treated the appellant, no reason is given why it took two days for the doctor to be called. A psychiatric report is now relied upon but it should be noted that the appellant was not seen until five years after his arrival. There is no evidence that the appellant has received the treatment recommended by the doctor.

 

94. There is a letter from the Kurdish Cultural Centre but that is all it is, a letter. No one has attended from that organisation to give evidence and be cross-examined and the appellant’s own evidence actually contradicted their claims. He claimed that he had attended demonstrations. At his interview at questions 132 to 136 his answers are contradicted by the letter from the Kurdish Cultural Centre.

 

95. Mr Melvin suggested that if the appellant was claiming to be politically active in the United Kingdom there would be no reason at all for him not to have mentioned this during his asylum interview.

 

96. There is, in the appellant’s bundle, a witness statement from an uncle. It is signed and dated and that uncle may well have attended earlier hearings but he did not give oral evidence and tender himself for cross-examination. Little weight should be placed on such statements.

 

97. Mr Melvin drew my attention to the determination of Upper Tribunal Grubb in the case of Sahin Babahan, the appellant’s cousin. Mr Melvin asked me to note the similarities in the two claims.

 

98. Mr Melvin asked me to note that there was no evidence from the party who, it is claimed, gave him the leaflets that he distributed and yet they could easily have been obtained.

 

99. As to the appellant’s Article 8 claim, he does have family members in the United Kingdom but there cannot be said to be a family life in existence between him and his family members, given that there is no given which could possibly satisfy the test in NA v Aratnam Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. So far as private life is concerned, the appellant had given evidence that he lives with a friend and sees family members occasionally. He claims that he was not able to work or study. He says that he occasionally plays football and attends occasional demonstrations but he has given no evidence of any significant private life that he enjoys. He has been in the United Kingdom for six years but the Secretary of State’s decision is entirely proportionate.

 

100. It is accepted that the appellant was detained with five others in 2007, but not what he claims happened to him, given the ease with which he was released.

 

101. Mr Melvin confirmed that IK (Returnees, Records, IFA) Turkey CG [2004] UKIAT 00312 was the current country guidance. He submitted that since there was no conviction or charge on return when questioned there would be no record of the appellant. He invited me to dismiss the appeal.

 

102. Counsel confirmed that pages 25 to the end of the appellant’s subjective bundle did in fact contain objective background evidence.

 

103. She reminded me that the appellant’s claim was his imputed political opinion and the belief that he had assisted the DTP. At the time the DTP was a legal party and there were DTP members of parliament. It never actually became illegal in Turkey but closed down in 2009.

 

104. The appellant has claimed to have been active in politics in the United Kingdom, in that he has attended demonstrations and that is supported by the evidence from the Kurdish Cultural Centre. His fear is because of his politically active family. Five family members have themselves been recognised as refugees in the United Kingdom and there are other family members who have been granted leave in the United Kingdom. The appellant claimed that his family is well-known in Turkey by the authorities. He claims to have been detained on several occasions. The first was in 2003 and the second in 2006. He fled from Turkey but returned from Austria when he was homesick. On his return he again became involved in politics and was detained in 2007. The documents at pages 16 to 25 of the appellant’s subjective bundle contain newspaper articles recording his arrest.

 

105. So far as the medical report is concerned, Counsel suggested that it was irrelevant that the appellant had not received treatment since being diagnosed with PTSD, despite the fact that the author of the report recommended that he should receive treatment.

 

106. Evidence contained within the respondent’s bundle shows that minors are detained and tortured in Turkey. She said that it was a fact that Turkish detainees are always tortured but was not able to substantiate that claim by drawing my attention to any objective evidence.

 

107. Counsel referred me to IK and suggested that the appellant met six of the risk categories and, depending on the credibility findings made, possibly several more.

 

108. On the appellant’s return to Turkey he will, submitted Counsel, be questioned. The type of questions put to the appellant are those referred to at paragraph 84 of IK based on the Country of Origin Information Report. The appellant cannot be expected to lie during his questioning and he will therefore be forced to confirm that he was detained by the anti-terror branch. Once he does that he will be at risk, she submitted.

 

109. I asked Mr Melvin if it was accepted that the appellant had been held by the anti-terror branch on his arrest in 2007. He told me that the arrest was accepted, but it was not accepted that the appellant had been arrested at the anti-terror branch.

 

110. I pointed out to Mr Melvin that the evidence heard by the judge was that the appellant had been detained at the anti-terror branch and although the judge had not made a finding on precisely where the appellant had been detained, he did accept that detention and, by implication, the claim that the appellant had been detained by the anti-terror branch. Mr Melvin told me that he did not accept that.

 

111. Finally, Counsel reminded me that the appellant had been consistent in his account and told me that he relied on Article 8. He has been in the United Kingdom for six years and the delay in the case was not of his making. During that time he has established his life in the United Kingdom and it would be disproportionate, she submitted, to remove him.

112. I reserved my determination.

 

The Law

 

113. In asylum appeals the burden of proof is on the appellant to show that returning him to Turkey will expose him to a real risk of persecution for one of the five grounds recognised by the 1951 Refugee Convention, or to a breach of his protected human rights. The question of whether a person has a well-founded fear of persecution for a Convention reason has to be looked at in the round, in the light of all the relevant circumstances and judged against the situation as at the time of the appeal. In human rights appeals, if it is established that there will be an interference with the appellant’s human rights, and the relevant Article permits, then it is for the respondent to establish that the interference is justified.

 

114. The standard of proof in asylum appeals, as regards to both the likelihood of persecution and the establishment of past and future risks is a real risk. In Kacaj v Secretary of State for the Home Department (01/TH/0634*) it was held by the former Immigration Appeal Tribunal that the standard of proof in human rights appeals is the same as that in asylum appeals.

 

Background Evidence

 

115. In order to place the appellant’s account into context and also to enable me to properly assess the risk facing the appellant I have considered all the background evidence submitted to me. The appellant submitted two bundles; the first is headed “appellant’s objective bundle of documents” and the second, “appellant’s subjective bundle of documents”. Counsel agreed that pages 25 onwards in the appellant’s subjective bundle were actually objective background documents.

 

116. I confirm that I have read and considered all the background information in the appellant’s bundle and that contained within the respondent’s bundle. I accept that despite international pressure on the government of Turkey given its desire to join the EU, the most appalling human rights abuses still continue in that country both at the hands of the military and/or enforcement officials. The failure to bring prompt impartial and effective investigations into allegations of human rights violations means that there is little effective deterrence against torture. I noted that the constitutional court ordered the closure of the country’s main pro-Kurdish party the DTP and described it as having become, “a focus of actions against the unity of the nation, citing its links to the rebel Kurdistan Workers’ Party. I also noted the detention in 2009 of members of DTP by Turkish police. The US State Department Country Report 2009 claimed that during 2009 the police routinely detained demonstrators, including several hundred members of the former DTP and its successor party the Peace and Democracy Party, on various occasions. They were said to have continued to detain and harass members of human rights organisations, media personnel and human rights monitors. It also suggested that throughout the year the police and judiciary increased pressure on members of the pro-Kurdish former DTP and BDP.

 

117. The Independent reported in August, 2010 that the Turkish police had imprisoned some 840 Kurdish political activists since April, 2009, mainly from the leftist and pro-Kurdish Peace and Democracy Party. Many were said to have been in custody awaiting trial for a year or more.

 

118. In December, 2011 the New York Times reported that some 38 people, many of them journalists, were arrested by police in dawn raids across Turkey as part of an investigation into a network accused of being the political wing of an outlawed Kurdish separatist rebel group. The arrests including prominent journalists, intellectuals and academics who had expressed general support for the rights of Kurds who are described as being a long oppressed minority.

 

119. The New York Times also reported that Turkey has already some 67 reporters in prison.

 

120. I noted that there was no background evidence placed before me which gave me any reason to believe that the circumstances which would face this appellant on return to Turkey were anything other than described in IK, the current country guidance case dealing with Turkey.

 

121. In particular I noted paragraphs 79 to 87 of IK.

 

Medical Report

 

122. I confirm that I have read and considered the medical report prepared by Dr J Hajioff dated 4^th January, 2012.

 

123. In referring to the report, Mr Melvin told me that First-tier Judges and the respondent were familiar with reports from Dr Hajioff. Quite what he was suggesting I do not know; I pointed out to Mr Melvin that I did not believe that I had ever previously seen a report by this doctor. I noted, however, that the author of the report is a consultant psychiatrist and also a Home Office visiting psychiatrist approved under Section 12(2) of the 1983 Mental Health Act.

 

124. I believe that Dr Hajioff’s report deserves careful consideration by me. I note that he describes the appellant’s previous claimed experience and expresses the opinion that the appellant is suffering from chronic PTSD and also displays symptoms of depression.

 

125. I was concerned to note that despite this diagnosis and despite Dr Hajioff’s suggestion, there was no evidence before me that the appellant had been prescribed any antidepressant medication or had been receiving psychological treatment, such as individual counselling and support.

126. I hope that those representing the appellant will impress upon him the importance of receiving effective and appropriate medication and treatment.

 

Consideration of the Evidence and Findings of Fact

 

127. I then considered the appellant’s evidence in the light of my consideration of the background evidence and the psychiatric report prepared by Dr Hajioff. In reaching my findings I have borne in mind that the events described by the appellant are all events which occurred while he was a minor. As a result, I have made what I believe to be a proper allowance, given his immaturity at the time and the passage of time which has occurred since.

 

128. I first reminded myself of the findings of First-tier Tribunal Judge Powell. Judge Powell recorded, at paragraph 29 of the determination, the following:-

 

“The appellant resumed his activities for the DTP after a short while. On 13^th February, 2007, the appellant said he was detained by the authorities and taken to the anti-Terrorist Headquarters on Vatan Street. He was interrogated and tortured. After two days he was released pending further investigation. He was not charged. He was not granted bail or made the subject of conditions. No mention was made of his earlier detention or the filming in 2006.”

 

129. The judge’s findings start at paragraph 72 of his determination and at paragraph 79 the appellant said this:-

 

“The appellant’s account of being detained in 2007 is plausible. The appellant was detained because he was engaged in flyposting with others. They were all detained. However, there is no evidence that the authorities associated the appellant with a history of previous involvement with DTP or HADEP.”

 

130. At paragraph 86 the judge said this:-

 

“I am also not satisfied that the appellant has provided a credible account of the circumstances in which he was detained by the authorities in 2007. His unconditional release is inconsistent with the appellant’s claim that he was tortured or viewed as a separatist or that the authorities regarded him as being likely to join the PKK.”

 

131. The judge then said, at paragraph 89:-

 

“Overall, despite my view of the appellant’s credibility, I find that he was detained by the authorities in 2007 for flyposting but I do not find that he was tortured. I find that he was arrested without condition or restriction although it would not surprise me if the authorities gave him a telling off, as the Presenting Officer suggested. However, I do not find that the appellant was regarded as a separatist or that the authorities showed any interest in him after he was released.”

 

The judge made other findings and then, at paragraph 92 found the following:-

 

“The appellant has not been arrested but I find that he was detained possibly on three occasions but the detentions in 2003 and 2006 were not significant and did not lead to the creation of a record or perception that he was involved in separatism. The appellant’s detention in 2007 was informal and did not involve the use of torture and is likely to have resulted in an admonishment rather than the creation of a record likely to be held on the GBTS system” (my emphasis).

 

132. At paragraph 93 the judge repeats the finding he has made that the appellant’s detention in 2007 was for a short period consistent with him having been detained with others for flyposting, having no political profile and being admonished by the authorities prior to release.

 

133. However, nowhere in the determination does the judge make any finding as to where the appellant was detained. I pointed out to Mr Melvin that it appeared that the judge had accepted the evidence before him as set out in paragraph 29 of the determination, namely that the appellant was detained by the authorities and taken to the anti-Terrorist Headquarters on Vatan Street.

 

134. Mr Melvin told me that it was accepted on behalf of the respondent that the appellant was detained in 2007, but not that he was retained at the anti-Terrorist Headquarters.

 

135. I noted that at the appellant’s screening interview conducted on 10^th May, 2007, the appellant had claimed that he was taken to the anti-terrorist branch where he was tortured, beaten up and given electric shocks. It is clear to me that Judge Powell accepted that the appellant had been detained at the anti-Terrorist Headquarters. Judge Powell makes it very clear that he did not accept the account of being tortured but I believe that what he has said at paragraph 79, 92 and 93 entitle me to accept that the judge did find that the appellant had been held at the anti-terrorist branch.

 

136. Given that the appellant has already been found to have been detained by the anti-terrorist branch in Turkey, I believe that my findings of fact are largely rendered irrelevant, given what I say below about the risk to the appellant on his return. Nonetheless, it is incumbent upon me to make findings on the evidence that has been presented and I now do so:-

 

(a) I am satisfied that the appellant is a citizen of Turkey, born in Hosgeldi in the town of Bulanik in the province of Mus. I accept that he is a Kurdish Muslim and that his father died in December, 2003.

 

(b) I accept that the appellant has six siblings and that over the years members of his family have encountered difficulties with the Turkish authorities because of their Kurdish background and politics.

 

(c) I accept that five members of the appellant’s family have been granted asylum in the United Kingdom and that one of them, his cousin Sahin, gave a very similar account of experiences in Turkey to the appellant. I accept that the appellant’s paternal aunt joined the PKK and, as a result, the family have come to the attention of the authorities.

 

(d) I do not accept that the appellant was treated badly at school by his teachers purely because he spoke Kurdish. Understandably, the teachers would have urged the appellant, along with other children at the school, to learn to speak Turkish. I accept that he might very well have found it difficult to speak Turkish and as a result may have believed that he was being picked on by his teachers. The appellant gave no explanation as to what he meant by his teachers having treated him “badly” and I believe that what he is referring to is simply his teachers’ annoyance with him at not properly applying himself and learning the language.

 

(e) The appellant claims that his first arrest was at the age of 12 in March, 2003. He claims that he was held for four days and beaten and kicked. He claims not to know whether he was given electric shocks, but describes being touched by a machine which, he said, “made me shaky and gave me unbearable pain”. I did not believe the appellant. I am afraid I do not believe that gendarmes in Turkey would spend four days interrogating a 12 year old boy who had been distributing magazines in the village. I accept that he may well have been arrested and questioned, but I did not believe that the gendarmes would expend so much time and energy in investigating the appellant’s activities as the appellant claimed, simply because the appellant had distributed magazines to people’s homes. I believe that it was much more likely that having heard the appellant’s explanation they would have devoted their energies to questioning other people in the village in order to identify the old man who had approached the appellant. In any event, I did not believe that this event in any way contributed to the appellant’s claimed fear of persecution. He subsequently left Turkey and travelled to Austria. I did not believe, even making what I believe to be generous allowance for the appellant’s age, that if he had reached a place of safety after fleeing in fear of persecution he would have returned after a matter of a week or so, even if he was suffering from homesickness.

 

(f) The appellant appeared to be in some doubt about subjected to electric shocks when he was held by the anti-terrorist department. Had he been subjected to electric shocks in 2003, I believe he would have remembered, particularly since he claimed to have suffered electric shocks in 2007.

 

(g) I accept that, given the location of the appellant’s home, it is more likely than not that the police did occasionally come checking people in the appellant’s village in an attempt to learn of PKK activity. I accept also that the police may very well have attended at the appellant’s home and checked food stocks. I am also prepared to accept that given that as a 12 year old boy the appellant had received and distributed magazines around the village they may well have paid closer attention to the appellant’s home, but I believe that the appellant has exaggerated this aspect of his claim. He believed that the police had gone to his home, “probably 50 times” between March, 2009 and December, 2009. I did not believe the appellant. I did not believe that the authorities in Turkey hunting for PKK separatists would devote so much time and energy in searching the appellant’s house. To have searched the appellant’s home so many times in such a short period would have used considerable man-hours and I did not think that the appellant’s was credible; I believe that he has exaggerated his claim.

 

(h) I believe and accept that at some stage the appellant moved to an area of Istanbul where his uncle, Filit lived and where two other paternal uncles also had their homes. I am prepared to accept that his uncles may well have been politically active in parties sympathetic to the Kurdish cause. However, I did not believe that the events that occurred leading up to the appellant’s departure on 31^st August, 2006 contributed to the appellant’s fear of persecution in Turkey. I was invited by Mr Melvin to make adverse findings in respect of his journey from Istanbul to Tehran, but I do not know what the distance is between Istanbul and Tehran and no evidence has been adduced as to how long it would take a lorry to travel between those two cities. As it is, the appellant eventually made his way to Austria, where he arrived on 7^th September, 2006. I do not believe that the reason the appellant gave a false name to the Austrian authorities was because he thought that if he gave his own name he would be sent back. That, with respect, makes little sense. The appellant had no reason to believe that the Austrian authorities would have heard of the appellant’s family name before his arrival. That he should give a false name does, I believe undermine his credibility, but to his credit, he was honest in admitting that he gave a false name. However, the fact that the appellant did return to Turkey on 19^th September, 2006 suggested to me that nothing which had occurred in Turkey up to the time he left had anything at all to do with his eventual departure and claim for asylum. I fully accept that at the time he would only have been 15 years of age and undoubtedly he would have missed his friends, family and surroundings but even so I did not believe he would have returned voluntarily if he had been in genuine fear of the Turkish authorities.

 

Credibility

 

137. I have explained my reasons for finding parts of the appellant’s account not to be credible and other parts of it to have been exaggerated. In making these findings I have borne very much in mind the appellant’s age at the date when the events he was recalling occurred and the gap in time since the events occurred. I have made what I regard to be full allowance for his immaturity.

 

Risk to the Appellant on Return to Turkey

 

138. As I have indicated above, no background evidence has been placed before me which gives me any reason to believe that I cannot rely still on what the Tribunal said at paragraphs 79 to 87 of IK. For the sake of completeness I set out those paragraphs below:-

79. The procedure facing returnees at Istanbul Airport (which is where returnees are sent by the UK Government) is that on arrival a person must present himself to an immigration control booth staffed by the border police. There is a computer terminal at each booth and the details of each person are keyed in by the border policeman from the travel documents. Dependant on the view taken by the border policeman, the returnee will either be allowed to proceed through the terminal without further ado, or will be transferred to the police station attached to the Airport for further questioning, which will typically take between 6 to 9 hours. Our view of the present evidence, and this reflects the long established jurisprudence of the Tribunal, is that there is no real risk during this period of questioning of ill-treatment crossing the high threshold required to constitute persecution or a breach of Article 3. However if as a result of information derived from such questioning or from any further enquiries undertaken by them, the police decide to transfer a returnee for further enquiries by the anti-terror police or possibly by MIT, it will be during this third phase of the process that the prospect of material ill-treatment arises. The CIPU report at 6.242 states the risk in these terms.

"At the anti-terrorist unit of the police, the suspect being subjected to torture or mistreatment cannot be excluded".

80. That torture "cannot be excluded" is not the same as "real risk", but we shall consider this issue later. At all events, the question of whether and why a returnee will be stopped in the first instance at the immigration booth and sent for more detailed questioning at the airport police station is potentially significant and must be answered.

81. If a returnee is a draft evader he will be stopped at the immigration booth when the GBTS reveals this information. He will be transferred to the airport police station and the military will be informed so that he can be collected by them. It is again well-established jurisprudence that draft evaders as such will not qualify for international protection as a consequence of their treatment on and after return.

82. As to other returnees, we conclude there is no good reason on the evidence before us, in answering this general question to depart from the general thrust of the conclusions of the Tribunal in paragraph 42 of A (Turkey), which we have already quoted. Thus if a returnee is travelling on a one-way emergency travel document (and no failed asylum seeker will be returned to Turkey by the British government without appropriate travel documentation), or if there is no border control record of a legal departure from Turkey, then there is a reasonable likelihood that he will be identifiable as a failed asylum seeker and could be sent to the airport police station for further investigation. This is so stated in the CIPU report at 6.242. It does not automatically follow that this would happen. For example it may be that when the emergency travel documents were issued by the Turkish Embassy in London, some preliminary enquiries would have been made and the Turkish authorities would be satisfied that the returnee is no interest to them. However there is a real risk of transfer.

83. Additionally, even when the returnee is travelling on his own legitimate passport with a proper Turkish exit stamp, if there is an entry on the databases available at the passport booth, which comprises the GBTS and the border control information, that is sufficiently significant to warrant further inquiries, there is again a reasonable likelihood that the returnee will be transferred for such further enquiries to the airport police station. Again it is not automatic. We note in this context the specific example quoted to us by Mr Kanat of the expatriate Turk from Düsseldorf returning in 2003 for a holiday in Turkey, whose record at the immigration control booth showed a detention on 21 March 1991 because of Newroz activities in Elazig. In that case, he was waved through without being referred for further questioning. We consider that the mere fact of some such entry on the database will not necessarily incur further questioning unless it is considered significant.

If a person faces non-routine investigation what should he be expected to say when questioned and what further information is reasonably likely to be accessed in this process?

84. The CIPU Report at 6.242 describes the nature of the questioning at the airport police station as mostly involving:

"Establishment or checking personal details; reasons and period of exit from Turkey; reason for the asylum application; reasons for any refusal of the asylum application; any criminal record and past record at home and abroad including drug offences; possible contact with illegal organisations abroad. However, if there are no suspicions, as a rule after an average of 6 to 9 hours they are released."

85. Clearly further information may arise from the questioning of a returnee by the police in the airport police station. Mr Grieves submitted that a person should not be expected to lie to the authorities during questioning in order to avoid persecution. Ms Giovannetti in her written reply stated the Home Office position as follows.

"The Secretary of State accepts that an individual detained and transferred to the airport police station would be interrogated and that it is reasonably likely that further checks would be carried out. However, the nature and extent of such interrogation and checks is likely to be related to the reason that the individual was stopped. So, for example, a person who does not have valid documents is likely to be questioned in order to establish his identity. An individual who is thought to have left on false documents is likely to be questioned about how and from whom he obtained them.

The Secretary of State does not suggest (and never has suggested) that Adjudicators should simply proceed on the basis that individual can lie about his background and circumstances. The right approach is to assess what questions are likely to be asked of the individual and what his responses are likely to be. "

86. We agree with the approach described by Ms Giovannetti. It will be for an Adjudicator in each case to assess what questions are likely to be asked and how a returnee would respond without being required to lie. The examples given by Ms Giovannetti above are examples only. Where and whether the questioning goes beyond the ambit of questioning described above, depends upon the circumstances of each case.

87. We have already dealt with the separate question of what further information is reasonably likely to be accessed by the police at the airport police station when considering the accessibility of information. As we have said, the evidence before us does not suggest in our view that any additional information system will be directly available at the police station beyond the GBTS and the border control records. We consider however that if unresolved doubts remain from questioning the returnee it is reasonably likely that further enquiries will be made as appropriate in the circumstances and any new information arising as a result will be assessed on its merits.

139. Given the finding of the First-tier Tribunal Judge and my conclusion that he appears to have accepted that the appellant was detained by the anti-terror branch, I believe that the appellant will be transferred to the police station attached to the airport for further questioning. When questioned he cannot be expected to lie and if he answers the questions asked of him honestly, this is likely to reveal that he has been of previous interest to the anti-terror branch. I believe that there is a very real and serious risk that such further questioning will result in the appellant being transferred for further questioning and inquiries by the anti-terror police. I believe that given the appellant’s family profile and the fact that he has previously been the subject of interest by the anti-terror branch, that there must be a real and significant risk that the appellant will be perceived to be involved in what the authorities regard as being separatist terrorist activities and at risk of serious harm.

 

140. The making of the decision by First Tier Tribunal Judge Powell involved the making of an error on a point of law. I remake the decision myself. I have concluded, therefore, that there is a very real and serious risk that if the appellant is returned to Turkey he is likely to face persecutory harm for a Refugee Convention reason. I allow his asylum appeal.

 

 

 

 

Upper Tribunal Judge Chalkley

 

 

Appendix

 

The appendix referred to in Paragraph 7 of the attached determination.

 

“1. With regard to paragraph 13, Medeni Babahan, Raife Babahan and Ali Haydar Babahan are my relatives and had to flee due to persecution they suffered due to their ethnicity and political opinion. They suffered problems in Turkey like me. They also claimed asylum.

2. With regard to paragraph 14, Orhan Babahan is also my relative. He is still involved in pro-Kurdish political activities in the UK. My family and relatives are from a very political background. I have provided evidence of Cahit Babahan, Mehmet Selim Babahan, Yatar Babahan, Kamuran Babahan and Erhan Babahan. The Home Office have accepted now that I am related to a family member that is pro-Kurdish. Even my surname itself is likely to raise concerns with the Turkish authorities because my family and relatives are well known to the Turkish authorities to be politically active fighting for Kurdish rights.

 

3. With regard to paragraph 24, I have given a truthful account of my first detention. Even the Secretary of State accepts that reports confirm that children in detention have suffered torture similar to how I have explained my experiences in my witness statement. However, the Secretary of State goes on to state I haven’t provided any evidence to substantiate my claimed detention or torture. My detention was in the village and I do not have any documents confirming that I was detained. However, the authorities did not hand me any documents confirming this.

 

4. With regard to paragraph 26-27, I have given a truthful account of what I have suffered and provided documents in support where I could. There is not much more I can do to state my case.

 

5. With regard to paragraph 30, there were small demonstrations everywhere on 16^th August, 2006, not just in Gaziosman Pasa. Not all events were recorded. I was there and witnessed the demonstration.

 

6. With regard to paragraph 33, I was very young when I went to Austria. I was interrogated at the airport and I informed them that I was afraid to return to Turkey. However, I believe I did not go through a formal process of claiming asylum as I have here. I had one conversation via an interpreter over the telephone. I did not receive any documentation or anything to suggest a formal asylum application was being considered. I was only given a card to enter and exit the detention camp.

 

7. With regard to paragraph 34, I gave the Austrian officials the wrong name and destroyed the ticket because I was instructed to do so by my friends with whom I was travelling with [sic]. I relied on them as they were the elders and I was very young at the time. I did not want to lie but followed the instructions of my friends.

 

8. With regard to paragraph 36, I was missing my family so much and was not used to living without my family. More importantly I was being harassed by the Austrian police almost every day. I was treated like dirt and thought I should risk returning home rather than suffer anymore in Austria.

 

9. With regard to paragraph 37, in February 2007, I was both fly posting and distributing leaflets. We were in a group sharing the tasks.

 

10. With regard to paragraph 38, I have provided an article from Info-Turk and a bulletin from the Human Rights Foundation. If you visit the sister organisation, Human Rights Association, you will find the same article. I will provide this in evidence with translation. You can find the article on the following web address:

 

http://www.ihd.org.tr/raporlar-mainmenu-86/yk-raporlar-mainmenu-103.jtml.

 

If you go to the 2007 annual report, on page 254, second paragraph, you will find the article confirming that I was detained on 13^th February, 2007 in Istanbul. It can also be found at: http://www.info-turk.be/342.htm.

 

11. With regard to paragraph 39, the article from FIRAT News Agency is genuine. Furthermore, I wish to clarify that Kirackoy is an area of Esenyurt which is in Istanbul. Yeni Mahalle is a neighbourhood of Kirackoy. This area was operated by gendarmes at the time. Now the police are operating there instead of gendarmes. I have provided evidence of this also.

 

12. I was detained for 2 days and released on 15^th February 2007. The newspaper article was published on 16^th February. My family were concerned about me. I suffered psychologically due to this detention. I still suffer from nightmares, insomnia and depression. Contacting the newspapers was not my family’s first priority.

 

13. With regard to paragraph 41, the law is not followed in Turkey. My mother was not given news about my detention. There is a law in Turkey that torture is prohibited but as is clear from the evidence, the law is clearly not followed.

 

14. With regard to paragraphs 42-44, as I stated above the correct procedure is not followed by the authorities. Furthermore, I was not subjected to the official procedure so I did not have a solicitor.

 

15. With regard to paragraph 46, the police searched the house only once but they interrogated my mother for two and a half months. The authorities are still coming to my mother’s house and asking questions about my whereabouts.

 

16. With regards to paragraphs 50-53, I was released from detention only on condition. My mother is still being asked about my whereabouts. Therefore, it is clear that the authorities would be interested in me. Due to my background they believe that I have joined the PKK. They know my relatives have joined the PKK and some have been killed while fighting for the PKK.

 

17. With regard to paragraphs 54-57, I would be killed before I even reach military service. Even if I survive my detention on return, I would be persecuted during my military service. Three relatives have been killed during military service, the most recent being Ercan Yesilkaya, who was killed in July 2010. I have provided evidence of this. This shows that someone from my background would be at risk during military service. However, due to my previous political activities and detentions, the risk to me would be extremely dangerous. The authorities are still harassing my mother to find out about my whereabouts.

 

18. Due to recent events the tension between the Turkish authorities and PKK has increased significantly. Many operations are being conducted by the authorities. Many supporters of Kurdish legal parties, solicitors and journalists have been detained. This would also increase the risk significantly to me.

 

19. With regard to paragraphs 66-74, since I have come to the UK, I have lived mostly with uncle, Orhan Babahan, and his family as a minor. I came to the UK when I was very young and extremely afraid. Fortunately, my uncles have looked after me. I feel like they are now my family. My uncles are still supporting me financially. As I have stated above, I suffered from psychological problems due to my last detention. My uncles and their families have helped me get better. However, since being refused by the Home Office, knowing that I could be sent back to Turkey has made my condition worse again.

 

20. With regard to my failure to report in June 2007, the Howe & Co letter dated 29 June 2007 is correct because I received my IS96 late. My solicitor asked for another IS96 to be sent. However, I didn’t receive any IS96. This is what I have stated in the additional statement. There is no contradiction. I have been honest throughout and tried to comply with all conditions given to me by the Home Office. I should not be unfairly punished due to no fault of my own.

 

21. I have explained the many factors which clearly show the risk I would face if I were returned to Turkey. My family and relatives are aware of what the Turkish authorities are capable of. I kindly request my life be saved by allowing me to remain in the UK.”