Demirkaya v Secretary of State for the Home Department

In asylum cases, the applicant must show a current, well-founded fear of persecution on return. Past persecution is important evidence of present risk, although it does not replace the need for a current fear. A decision-maker relying on changed circumstances to find that risk has disappeared must explain that conclusion. Whether ill-treatment amounts to persecution is a fact-sensitive question of degree. Extreme or repeated treatment may suffice, while an isolated beating will not necessarily do so. The assessment must be made in the round using the lower real-risk standard.

The appellant, a Turkish Kurd and former PKK sympathiser, claimed asylum after describing repeated detention, torture and other severe ill-treatment in Turkey. The Immigration Appeal Tribunal accepted his account but concluded that he would probably be released after a short detention on return and would not face persecution.

The proceedings followed an earlier remittal caused by delay in promulgating an adjudicator’s determination. After a further dismissal and refusal of leave, Moses J quashed the refusal of leave on judicial review. The central issues before the Court of Appeal were the relevance of past persecution, the significance of possible beatings on return, the proper asylum burden of proof, and the adequacy of the Tribunal’s reasons.

Disposition. Stuart-Smith LJ delivered the leading judgment. Laws LJ and Jonathan Parker J agreed. The appeal was allowed with costs.

1. The Tribunal’s treatment of Ravichandran [1996] Imm AR 97 was too cryptic. That decision did not establish that ill-treatment could never amount to persecution. Everything depended on the degree and circumstances of the treatment. The question had to be assessed prospectively, taking account of any genuine improvement in conditions.
2. Whether conduct amounts to persecution is a question of fact and degree. Torture or exceptionally cruel, inhuman or degrading treatment may be sufficient in a single instance. Less serious ill-treatment may require persistent and serious repetition. A single beating is not necessarily persecution unless particularly vicious or injurious, but a real risk of repetition may alter the conclusion. The ordinary-meaning and fact-sensitive approach in Kagema v SSHD [1997] Imm AR 137 was endorsed.
3. The inquiry whether a person faces persecution for a Convention reason is a single composite question. The risk must be assessed in the round, with all relevant circumstances considered together, rather than by separating the nature of the conduct from the reason for it. This approach was supported by Ravichandran and was consistent with article 33(1), rule 180B(c), paragraph 51 of the UNHCR Handbook and the spirit of the Convention.
4. Current fear is required, but historic fear and past persecution may be powerful evidence of present risk. Adan v SSHD [1999] 1 AC 293 did not make past persecution irrelevant. If the Tribunal considered that a significant change in Turkey had removed the risk created by the appellant’s accepted history, it had to explain why. Its failure to address that history meant that its conclusion could not be sustained.
5. The Tribunal also used an apparently incorrect formulation by asking whether release was reasonably likely. The proper question was whether there was a real risk that the appellant would not be released. Although that error might not alone have invalidated an otherwise sustainable decision, it added to the concern about the reasoning.

The formal order was appeal allowed with costs, with assessment of costs.

• Court of Appeal (Civil Division): allowed the appeal with costs. Stuart-Smith LJ gave the leading judgment; Laws LJ and Jonathan Parker J agreed.
• High Court: Moses J quashed the Immigration Appeal Tribunal’s refusal of leave on judicial review.
• Immigration Appeal Tribunal: after a further hearing, dismissed the appellant’s asylum appeal and refused leave to appeal.
• Earlier proceedings: the Tribunal had previously allowed an appeal because of the delay between hearing evidence and promulgating the adjudicator’s determination, and remitted the matter for rehearing.