Ozcan v Immigration Appeal Tribunal

In assessing whether an asylum appeal has a real prospect of success, the appellate tribunal must engage with the individual circumstances accepted by the adjudicator and the relevant background evidence. A conclusion that a returning asylum seeker is not in a vulnerable category is inadequate where it is unclear what category-based reasoning was used or why the accepted history does not create a relevant risk. Cases concerning return to Turkey must be decided individually. Defined categories of vulnerable or non-vulnerable returnees should not replace that assessment. An appeal should proceed where it is arguable that material facts, including the likelihood of interrogation and enquiries into past political links, were overlooked.

The appellant, a Kurdish Alevi Turkish national, claimed asylum after arriving in the United Kingdom without valid travel documents. The adjudicator accepted that he had previously been detained and ill-treated because of his family’s and his own political associations, but rejected his account of continuing police or MHP interest after 1995 and concluded that he was not in a vulnerable category on return.

The Immigration Appeal Tribunal refused permission to appeal on 20 March 2001. Scott Baker J refused permission to apply for judicial review on 23 October 2001. The issue before the Court of Appeal was whether the IAT had been entitled to conclude that the proposed appeal had no real prospect of success, or whether the adjudicator’s treatment of the accepted history and background evidence was arguably irrational or unsustainable.

1. Appeal allowed. The court allowed the appeal from Scott Baker J, granted judicial review of the IAT’s refusal of permission to appeal, and ordered that the appeal proceed to a hearing before the IAT. The order was made with costs, subject to detailed assessment.
2. Rule 18(7) of the Immigration and Asylum Appeals (Procedure) Rules 2000 requires permission where the appeal has a real prospect of success or there is another compelling reason for it to be heard. The question was therefore whether the challenge to the adjudicator’s conclusion was properly arguable.
3. The adjudicator had accepted significant past detention and ill-treatment connected with the appellant’s Kurdish identity, family background and political activity. It was arguable that, when considering the risk on return, the adjudicator failed to bring those accepted facts together with the background evidence concerning interrogation, enquiries into past activities and possible links with illegal organisations.
4. The reasoning was unclear in two material respects: what categories were regarded as vulnerable or non-vulnerable, and why the appellant did not fall within a relevant vulnerable category. The approach appeared to rely on the absence of frequent arrest after 1995 and the absence of apparent police interest when he left Turkey, without addressing the possibility of scrutiny on return arising from his past and family connections.
5. The court did not require adjudicators to analyse every background document in detail. They must, however, give adequate reasons on the principal issues and must not overlook material circumstances accepted as true. Individual cases must be decided on their own facts rather than by applying undefined or rigid categories of vulnerable returnees.

• Court of Appeal (Civil Division): appeal allowed; judicial review granted in respect of the IAT’s refusal of permission to appeal, and the appeal remitted to the IAT for hearing.
• Queen’s Bench Division: Scott Baker J refused permission to apply for judicial review on 23 October 2001.
• Immigration Appeal Tribunal: permission to appeal refused on 20 March 2001.
• Adjudicator: asylum appeal dismissed on 2 February 2001.