- The appellant,
Mr Kulek, a citizen of Turkey of Kurdish origin arrived in the United Kingdom
on 8 October 2000 and claimed asylum on arrival. On 14 January 2001 the respondent,
the Secretary of State, made a decision to refuse to grant him refugee status
and to refuse to grant him leave to enter. The appellant appealed to an adjudicator,
who allowed his appeal in a determination dated 13 September 2001. The Secretary
of State appealed against that decision to the Immigration Appeal Tribunal.
The Tribunal allowed the appeal in a determination dated 19 March 2002. The
Tribunal refused permission to appeal to this Court.
- On 26 June 2002
Sedley LJ, on a paper application, granted permission to appeal. In giving
his reasons he stated:
"There
is a single live point of law here: is a respondent to a second appeal entitled
to re-open the Adjudicator’s fact findings without leave to cross appeal".
- Sedley LJ went
on explain that this case raised a procedural issue of general importance
in relation to a conflict between two decisions. The first is R v. The
Immigration Appeal Tribunal, ex parte Badrol Bari [1986] Imm. AR 264,
a decision of Russell J sitting in the Divisional Court. The second is Mohamed
Iqbal v. Entry Clearance Officer, Islamabad, (29 October 1991) a decision
of the Immigration Appeal Tribunal. While this case raises that issue, we
do not see it as central to the appeal.
THE BASIS OF
THE CLAIM TO ASYLUM
- The basis of
Mr Kulek’s claim for asylum has been helpfully summarised in a skeleton argument
submitted on his behalf. He claims to have been a member of the DHKP/C, an
illegal violent political organisation and, for that reason, to be wanted
by the police. He asserts that if he is returned to Turkey, the authorities
are likely to seek to prosecute him in respect of his membership of this organisation
and his activities on its behalf. He will be at risk of being tortured during
investigation and pending any prosecution. Thus it is claimed that he has
a well-founded fear of persecution and that his removal to Turkey would conflict
with the United Kingdom’s obligations under the 1951 Refugee Convention and
violate Article 3 of the Human Rights Convention.
- The factual
account given by Mr Kulek to support his case is to be found in the record
of his initial interview on 20 November 2000, from an undated statement sent
by his solicitors Irving & Company to the Home Office on 11 December 2000
and from the oral evidence that he gave to the Adjudicator, Professor Casson,
on 15 May 2001. His case on the facts, as finally developed, can be summarised
as follows. On the 23rd October 1996 the police raided Mr Kulek’s
house in Istanbul. He was out, but his wife, who was pregnant at the time,
was detained. She was held at a police station for two weeks in the course
of which she was tortured and suffered a miscarriage. She was charged with
helping members of an illegal organisation and detained for a further 21 days
in Sakarya Prison. She was released, but the case against her has never been
resolved. During a court appearance Mrs Kulek was questioned about her husband
in terms which made it clear that he was suspected of being a member of DHKP/C.
After his wife’s release Mr Kulek moved with her to a different part of Istanbul
and was careful not to register with the Mukhtar, although the law required
this. For a while he did not engage in political activities, although he attended
secret meetings of the DHKP/C. In 2000, however, he became politically active
again, distributing illegal leaflets, putting up fly-posters and writing slogans
on walls. The police went to a house of one of his brothers and to the house
of a sister, as well as to the office of the Mukhtar, enquiring about his
whereabouts. He then decided to leave and seek refuge in this country.
MR KULEK’S BROTHER
- Mr Kulek has
a brother, whose first name is Cafer. He arrived in this country in the back
of a lorry in January 1997 and claimed asylum. His claim was rejected and
an appeal to the Special Adjudicator dismissed. On 15 March 2000, the Immigration
Appeal Tribunal, chaired by the President, Collins J, allowed his appeal.
The factor which weighed most heavily with the Tribunal was the risk posed
to Cafer by reason of the activities of Mr Kulek and his wife. The material
parts of the Tribunal’s decision read as follows:
"The
Appellant’s account of the reasons why he had decided to leave Turkey and
to seek asylum were essentially these. His family was politically active,
being concerned with the DHKP which is an illegal organisation in terms of
Turkish law. He said that his family was as a result targeted by the police
and his sister-in-law, falsely described by the Special Adjudicator as his
aunt, was sent to prison. He himself, was arrested when the police could not
find those members of the family who they were seeking but was not detained
for very long and was then released.
….
What
the Special Adjudicator did not do, unfortunately, was to consider whether,
on return, the Appellant would fall foul of the authorities because of the
involvement of his family with the DHKP. The Tribunal is aware from many cases
involving Turkish Kurds that there is a real risk that on return they will
be interrogated and indeed, may be detained for a period while interrogated.
If there is no reason to connect them with any past activities which would
have drawn them to the attention of the police, then the likelihood is that
they will be released and there is no reason to believe that there is a real
risk of persecution, notwithstanding the Turkish authorities propensity to
engage in torture. But the situation may be somewhat different if there is
a reason for the authorities to link the individual with activities of which
the authorities disapprove and that clearly seems to us to be the position
here, having regard to the activities of his family. We should say that although
it is not entirely clear from the adjudication, it does not seem that the
Special Adjudicator was rejecting the Appellant’s account so far as it related
to the involvement of his family.
However,
what concerns us most is the issue in relation to the family. We take the
view that, as we have said, there is a real risk that he would be drawn to
the particular attention of the authorities on his return who would be suspicious
of him. In those circumstances the present situation in Turkey persuades us
that there would be a real risk that the police would persecute him in the
sense that they would indulge in their practice of torture."
DOCUMENTARY EVIDENCE
- Before the Adjudicator
Mr Kulek sought to rely upon a batch of documents, totalling 18 pages. These
purported to be documents in Turkish, bearing dates in 1996, together with
English translations. These included a record of a court appearance by Mrs
Kulek on 4 November 1996 in which she denied having made a statement to the
police which had been adduced in evidence. This statement included the following
passage:
"The
individual who recruited me to the DHKP/C is my spouse Yusuf Kulek. He is
a member of this organisation and he struggles for it. He is the individual
who shelters the other members of the organisation and arranges meetings in
our house. He told me that we waged a struggle on behalf of the DHKP/C organisation,
opened our house to the members of the organisation and carried out activities
for this organisation. One individual he brought to our house was Hasan Pinar,
code name Riza, who was apprehended in August 1996 and is in prison. And other
individuals Hasan Aydogan, code name Baris, and Turkan Ozen, code name Serpil
also stayed in our house. I aided the DHKP/C organisation in this way."
THE ADJUDICATOR’S
DECISION
- Before the Adjudicator
Kulek was represented by Mr Sidhu, a trainee solicitor. What occurred when
he sought to rely upon the documents to which we have referred appears from
the following passage in the Adjudicator’s decision:
"Mr
Corradine, for the respondent, informed me that pages 218 to 232 had never
been seen by the respondent before the hearing and that the documents were
not accepted as genuine. Mr Sidhu said the documents had been sent to the
Home Office. In my judgment, were that so, Irving & Co would have drawn
the respondent’s attention long before the hearing to the failure to include
the documents in the Home Office bundle. I accept Mr Corradine’s submission
that the pages in question had not been submitted to the respondent and, following
the judgment of Langley J in ex p Nasir Qawium Khan (CO 107/1999) I
am not prepared to accept the documents as authentic in view of the circumstances
and timing of their production."
- The Adjudicator
went on to consider the position if, contrary to his finding, ‘some element
of truth is found to emerge on the appellant’s story’. He drew attention to
inconsistencies in Mr Kulek’s evidence as to what happened after 1996 and,
in the light of these, concluded that Mr Kulek cannot have been of interest
to the police during the years he spent in Istanbul.
- The Adjudicator’s
provisional conclusions appear in the following paragraph:
"I
have concluded in the light of this evidence that the appellant is a liar
and has presented a spurious claim to be in need of international protection.
Were it not for the factor I now turn to, he would not persuade me according
to the principles established by the House of Lords in Sivakumaran
and by the Court of Appeal in Karanakaran and Ravichandran that
he would have a well-founded fear of persecution for any reason within the
United Nations Refugee Convention were he to return to Turkey at the present
time. For the same reasons, I would not accept that there is a real risk that
he would encounter a breach of his human rights on return."
The
Adjudicator went on, however, to refer to the decision of the President in
relation to Mr Kulek’s brother Cafer, and went on to hold:
"Although
I have found the appellant to be not credible, and although the Tribunal stressed
that its decision was not a precedent, I am compelled to conclude that it
is not open to me to find that this appellant does not have a fear of persecution
in Turkey when the Tribunal has found that his brother has such a fear. For
that reason, and for that reason only, I allow the appeal. In my view it is
desirable that the Tribunal should adjudicate on the correctness of my decision."
The
Secretary of State obtained permission to appeal to the Tribunal.
THE DECISION
OF THE TRIBUNAL
- On 31 January
2002 Mr Kulek’s solicitors wrote to the Tribunal asking permission, "in
light of the credibility findings by the Adjudicator", to call Mr Kulek
as a witness. The Tribunal refused that request.
- In their decision,
after reciting the background facts, the Tribunal made the following observation:
"There
has been no appeal on behalf of the claimant himself and it follows that the
principal findings of the Adjudicator in relation to credibility are not before
us, save insofar as the Adjudicator’s whole reasoning process is in issue
in this appeal."
- In relation
to the Adjudicator’s reasoning process, the Tribunal went on to hold that
this had been flawed. The Tribunal had been wrong to treat as an independent,
and dominant, factor the prior decision in relation to Mr Kulek’s brother:
"We
have considerable sympathy with both those arguments but we think that Mr
Hodgetts’ is the more appropriate and the more persuasive. If the Tribunal’s
determination of the brother’s appeal was relevant at all, then it fell to
be taken into account in conjunction with all the other material before the
Adjudicator. It was wrong to put it aside until the end, to draw conclusions
about the rest of the evidence and then to throw the Tribunal determination
into the balance and find that it tipped the balance. It follows, therefore,
that the Adjudicator's process of reasoning is one which we cannot endorse."
The
Tribunal continued:
"The
question then arises to what extent, and for what purposes the Tribunal’s
determination of the brother’s appeal was relevant. We accept Mr Hodgetts’s
submission and indeed, as we have indicated, it is also accepted in the Secretary
of State’s grounds, that the determination fell to be taken into account.
Its relevance was, however limited and we take the view that the relevance
of any other determination of a different appellant’s appeal must always be
limited, for two reasons.
The
first is that it is important that a person who is drawing conclusions on
credibility, and in particular on the credibility of oral evidence which he
receives, makes those conclusions independently of any other person’s view
of credibility, even of credibility of the same evidence, if that same evidence
was given in a different case. It is not open to a person who is charged with
a duty of deciding whether evidence is credible to rely either in favour of
the evidence or against the evidence on the views of somebody else. The person
who is to judge credibility must do it himself.
The
second factor rendering the relevance of the previous determination of limited
importance is that it may in many cases be merely a matter of chance which
determination is made first. It is important not to give undue priority to
a finding of fact or credibility that happens to be made first."
- Applying these
considerations the Tribunal held that there was no possibility that if the
Adjudicator had considered the Tribunal’s determination in the brother’s case,
as he should have done, as part of the material before him as a whole, he
would have reached a different conclusion on the credibility of the evidence
tendered in support of Mr Kulek’s claim. Accordingly, the Secretary of State’s
appeal was allowed.
THE ISSUES BEFORE
US
- We had the advantage
of the advocacy of Mr Scannell on behalf of Mr Kulek and Miss Anderson on
behalf of the Secretary of State. Unfortunately, however, neither had appeared
before the Tribunal and neither was in a position to provide us with an informed
account of precisely what transpired before the Tribunal.
- Mr Scannell
put at the forefront of his case the importance of the documents to which
we have referred. Four pages had been included in the bundle of evidence prepared
by the Secretary of State. The rest had been disregarded by the Adjudicator
on the strength of Mr Corradine’s assertion that they had never been seen
by the Secretary of State prior to the hearing. These documents included the
court record containing the extracts that we have cited above. Mr Scannell
submitted that Mr Corradine had, unwittingly, misled the Adjudicator. Mr Sidhu
had been correct in saying that the documents had been sent to the Home Office.
The most important of these must have been overlooked, in error, when the
bundle of evidence was prepared on behalf of the Secretary of State.
- We are persuaded
that Mr Scannell’s submission was correct. On 11 December 2000 Irving &
Co. wrote to the Immigration and Nationality Directorate itemising documents
with translations enclosed in support of Mr Kulek’s asylum application. They
commented:
"Given
the fact that the Turkish authorities clearly have records of our client’s
association with an illegal political party in Turkey. We would submit that
this in itself is enough to indicate that our client would face persecution
on return to Turkey, particularly as he does not possess a Turkish travel
document.
- The documents
itemised unquestionably include those documents which Mr Corradine said had
not been seen by the Secretary of State. The covering letter is date-stamped
received 15 December 2000. In Mr Kulek’s supplementary statements he made
express reference to enclosing this evidence. If the documents had not, in
fact, been enclosed with the covering letter we would have expected the Directorate
to have drawn attention to this fact at the time.
- Mr Hodgetts,
who appeared on behalf of Mr Kulek before the Tribunal, informed the Tribunal
that the documentary evidence placed before the Adjudicator in Mr Kulek’s
case had been placed before the Adjudicator on his brother’s appeal. We presume
that he said this on instructions. Miss Anderson was, perhaps not surprisingly,
unable to inform us whether or not this was correct. We can see no reason
why it should not have been. Thus it seems to us that Mr Corradine was doubly
wrong in asserting that these documents had never been drawn to the attention
of the Secretary of State.
- Mr Scannell
submitted that these documents constituted evidence of high importance. They
showed that, in 1996, Mr Kulek and his wife were accused by the police of
being involved with DHKP/C. It was that involvement which had led the Tribunal
to rule that Mr Kulek’s brother, by reason of his family association, was
entitled to asylum. The same evidence provided a stronger case for the grant
of asylum to Mr Kulek. That was the true significance of the Tribunal’s decision
in relation to Mr Kulek’s brother. Had the Adjudicator adopted a correct approach
to both the earlier decision of the Tribunal and to the evidence on which
it was based he could not have failed to conclude that Mr Kulek had a well-founded
fear of persecution if he were returned, without documents, to Turkey.
- So far as the
decision of the Tribunal was concerned, Mr Scannell submitted that they also
had failed to have regard to the true significance of the earlier decision
and, more particularly, to the documentary evidence which established a well-founded
fear of persecution on the part of each of the brothers. He drew attention
to the rather cryptic statement in the Tribunal’s decision that, because there
had been no appeal on behalf of Mr Kulek himself, the principal findings of
the Adjudicator in relation to credibility were not before the Tribunal, save
in so far as the Adjudicator’s whole reasoning process was in issue. Mr Scannell
submitted that the reference to the need for an appeal on behalf of Mr Kulek
was misconceived. The rules made no provision for an appeal by a respondent.
The only issue in this case was the credibility of Mr Kulek’s evidence about
events in Turkey. The Secretary of State’s appeal re-opened that issue and
Mr Kulek was fully entitled to make submissions in relation to it.
- Miss Anderson,
for the Secretary of State, asserted that the statutory scheme makes provision
for either party, whether successful or unsuccessful, to appeal against adverse
findings on individual issues. The Adjudicator’s finding in relation to Mr
Kulek’s credibility related to such individual issue. The Secretary of State’s
appeal did not relate to the issue of credibility, it related to the method
that the Adjudicator had adopted in reaching a decision adverse to the Secretary
of State, notwithstanding his finding on credibility. If Mr Kulek had wished
to re-open the question of credibility, he should have himself appealed against
that finding. The same was true of Mr Scannell’s complaint that due weight
had not been given to the documents. Mr Kulek should have appealed against
the Adjudicator’s rejection of the documents had he wished to take that point.
- More generally
Miss Anderson submitted that the Tribunal had properly weighed in the balance
the significance of the earlier decision in favour of Mr Kulek’s brother and
properly concluded that the Adjudicator’s decision should stand.
THE CONFLICT
BETWEEN BARI AND IQBAL
- Each of these
decisions was made under the regime of the Immigration Act 1971 and the Immigration
Appeals (Procedure) Rules 1984. The relevant provision of the 1971 Act provided
as follows:
"20(1) Subject
to any requirement of rules of procedure as to leave to appeal, any party
to an appeal to an adjudicator may, if dissatisfied with his determination
thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination
or make any other determination which could have been made by the adjudicator".
That
provision is preserved, essentially unchanged, as paragraph 22(1) of Schedule
4 to the Immigration and Asylum Act 1999.
- Bari
involved an appeal to the Immigration Appeal Tribunal by an applicant who
had been refused entry clearance as a working holiday maker. The Tribunal
held that the applicant’s ground of appeal was well founded, but reconsidered
findings of the Adjudicator made in favour of the applicant and reversed these,
dismissing the appeal on that basis. The issue was whether, as a matter of
procedure, this course had been open to the Tribunal. The nature of the issue,
and the finding of Russell J in relation to it, appears from the following
passage of his judgment.
"Mr
Riza concedes, as in my judgment he is really bound to concede, that the Tribunal
is entitled to look at the case afresh - as this Tribunal did - and that they
are entitled not only to review questions of law but to review issues of fact.
The complaint, however, which is developed by Mr Riza is to the effect that
the issues of fact on which there is to be a reassessment must be properly
before the Tribunal. That, submits Mr Riza, can only happen when the party
who is seeking to reverse those findings of fact puts the other side on notice
as well as the Tribunal.
Here
it is submitted that the respondents to the appeal did not seek leave to appeal
the decision of the adjudicator on the point with which the Secretary of State
did not agree, the point which was in favour of the applicant. Nor was there
at any stage any form of notice of appeal or cross-appeal entered by the respondent.
It is not for the Tribunal, submits Mr Riza, of its own motion to review findings
of fact upon which no point has been taken by way of notice of cross-appeal
or any other notice.
For
the Tribunal, Mr Laws has referred me in particular to sections 19 and 20
of the 1971 Act as well as to the Immigration Appeals (Procedure) Rules. I
have to say at once that I have searched in vain for any rule which requires
a respondent to an appeal of this kind, whether the respondent be the applicant
or the Secretary of State, to cross-appeal or serve a contrary notice. There
is simply no provision for it in the Rules. Accordingly, I come to the conclusion
that the Rules being devoid of any provision for the service of the cross-appeal
or cross-notice, there is no obligation upon the Secretary of State in this
or in any other case to do that which Mr Riza suggests has to be done."
- In Iqbal
the Entry Clearance Officer, Islamabad, had refused the applicant entry
clearance to marry a lady in this country. The applicant appealed to the Adjudicator.
The Adjudicator found in his favour in relation to the purpose of the marriage
but dismissed the appeal on the ground that, at the date of the decision,
the parties had not "met" within the meaning of the Immigration
Rules. On appeal to the Tribunal it was conceded that this conclusion was
unsustainable. The Entry Clearance Officer then sought to challenge the Adjudicator’s
finding on the purpose of the marriage. The issue arose of whether it was
open to him to do so. The Tribunal held that it was not. The Entry Clearance
Officer had been required to seek and obtain permission to appeal against
the adverse finding if he was to seek to uphold the Adjudicator’s decision
on that ground. The Tribunal reached this conclusion by construing s.20 of
the 1971 Act in the following fashion:
"It
is noticeable that section 20 is not couched in terms of an appeal by the
person against whom the decision is given nor in terms of "an appellant"
or "the appellant". It provides for an appeal by "any party"
dissatisfied with the determination on the appeal. Dissatisfaction may be
partial or total and there is no reason to read the provision as if it did
refer only to the party who is the ultimate loser. Indeed, as we have said,
there is every reason to construe the framework as providing for the ability
to appeal in respect of each issue decided. We therefore disagree with Mr
Wilmott when he submits that, under the statutory structure, a party dissatisfied
with part of the determination may not appeal if the ultimate result of the
appeal is in favour."
- As to the decision
of Russell J in Bari, the Tribunal had this to say:
"With
the greatest respect we have to say that if the learned Judge was taking the
view that it was always open to the Home Office to resurrect at will issues
on which the adjudicator has come to a positive conclusion on evidence given
before him, the consequence would be chaotic. It would mean that subject to
putting the other party on notice all matters were always subject to a re-run,
and that there was no obligation on the Home Office to consider whether a
matter was worth fighting before the Tribunal or any power in the Tribunal
to declare that they would not listen to such a re-run. In Bari it
is not entirely clear as to whether the adjudicator made specific findings
on particular requirements of the rule. Secondly, in that case in the grounds
of appeal to the Tribunal, the Home Office said generally that it did not
agree with the adjudicator’s construction of the particular rule. Thirdly,
the argument and the learned Judge’s comments go to the need for a respondent
notice. In our view, there is no question of a ‘respondent’ seeking leave
to appeal, for we read ‘appellant’ in the Act and the rules as referring to
a party dissatisfied with any part of the determination of the adjudicator.
While we entirely agree, with respect, with the learned Judge about the lack
of any reference to a respondent’s notice, it seems to us that the omission
can only support the view we have taken."
- The manner in
which the Tribunal purported to distinguish Bari was not legitimate.
In Bari Russell J had been dealing with a contention that the Respondents
had been required to seek leave to appeal. The two cases are in conflict.
We are in no doubt that Bari was correctly decided and Iqbal
was not. The words "determination thereon" in Section 20 (1) of
the 1971 Act bear the obvious meaning "determination of the result of
the appeal". It is a perversion of language to read the phrase as meaning
"determination of any issue arising on the appeal".
- The statutory
provisions that are now in force put the matter beyond doubt. Paragraph 22
of Schedule 4 to the 1999 Act provides:
"(1) Subject
to any requirement of rules made under paragraph 3 as to leave to appeal,
any party to an appeal, other than an appeal under section 71, to an adjudicator
may, if dissatisfied with his determination, appeal to the Immigration Appeal
Tribunal.
(2) The
Tribunal may affirm the determination or make any other determination which
the adjudicator could have made."
- The Immigration
and Asylum Appeals (Procedure) Rules 2000, introduced pursuant to that Act,
include in paragraph 2 the following definition:
"Determination’
means the decision of the Appellate Authority to allow or dismiss an appeal
and the reasons for that decision;".
- Miss Anderson
valiantly sought to argue that "and" had disjunctive effect, so
that any individual reason for a decision constituted a "determination",
against which an appeal could be brought. We do not agree. Indeed, Miss Anderson
conceded that her suggested interpretation could not readily be reconciled
with the following requirement of Rule 18(4):
"An
application for leave to appeal shall be made by serving upon the Tribunal
the appropriate prescribed form, which shall - identify the alleged errors
of fact or law in the adjudicator’s determination which would have made a
material difference to the outcome, together with all the grounds relied on
for the appeal."
CONCLUSIONS
- The Tribunal
was wrong to hold that because there had "been no appeal on behalf of
the claimant himself" the principal findings of the Adjudicator in relation
to credibility were not before them. While the precise purport of this finding
is not clear, we consider that it may have led the Tribunal to adopt an unsound
approach to the appeal. What was at issue before the Adjudicator and the Tribunal
was the existence of facts giving rise to a well-founded fear of persecution
should Mr Kulek be sent back to Turkey. An earlier Tribunal had found such
a fear made out in relation to Mr Kulek’s brother on the basis, in all probability,
of documentary evidence which the Adjudicator wrongly discounted. Had the
Adjudicator accepted that evidence, it could well have impacted upon his attitude
to Mr Kulek’s evidence as a whole. We propose to allow the appeal and remit
this case to the Tribunal for reconsideration in the light of this judgment.
It will be a matter for the Tribunal whether or not, in the unusual circumstances
of this case, to permit Mr Kulek to give oral evidence.
- When giving
leave to appeal, Sedley LJ remarked that it did not follow that if Bari
was right, every respondent could re-canvas the facts at will. Where an adjudicator
has heard oral evidence, and made findings which reflect the credibility of
that evidence, the Tribunal will not normally entertain a challenge to those
findings. Where a respondent wishes to seek to uphold a determination of an
adjudicator on alternative grounds, (and the respondent is normally likely
to be the Secretary of State) it seems to us desirable that the rules should
make provision for the service of a respondent’s notice.