Erdogan v Secretary of State for Home Department

On an appeal from an Immigration Appeal Tribunal, the question is whether the Tribunal’s decision contains an error of law. The Court of Appeal does not re-try the asylum claim merely because one reason relied on by an adjudicator was unsustainable.

A flawed reason for rejecting part of a witness’s account does not automatically invalidate the remaining findings. The determination must be read as a whole. A well-founded fear of persecution is assessed by considering the claimant’s subjective evidence together with the objective country material. Where the surviving reasoning remains within reasonable bounds and supports the result, the decision may stand.

The appellant, a Kurdish Alevi from Turkey, claimed asylum after alleging harassment and a January 2002 arrest connected with Kurdish-language petitions. The Secretary of State refused the claim. An adjudicator accepted some earlier incidents but rejected the January 2002 account and concluded that the appellant would not face a well-founded fear of persecution on return.

The Immigration Appeal Tribunal accepted that one reason given by the adjudicator could not stand, but upheld the decision on the basis of the remaining findings. The appeal concerned whether the Tribunal had thereby erred in law.

1. Appeal dismissed. Sir Christopher Staughton gave the leading judgment. Lord Justice Scott Baker and Lord Justice Auld agreed.
2. The Court of Appeal’s task was to determine whether the Immigration Appeal Tribunal’s decision contained an error of law. If it did not, the Tribunal’s decision had to stand. The Court was not required to reconsider the factual merits afresh.
3. Where one reason relied on by an adjudicator is shown to be unsustainable, the Tribunal must consider whether the remaining reasoning continues to support the result. The assessment is one of degree. The adjudicator’s determination must be read as a whole, rather than by compartmentalising separate parts of a witness’s account.
4. Auld LJ specifically endorsed the caution against treating a witness’s evidence as consisting of hermetically sealed compartments. Acceptance of some aspects of a claim does not require acceptance of every aspect. Equally, removal of one adverse finding does not necessarily remove the foundation for the overall credibility assessment.
5. Whether a claimant has a well-founded fear of persecution is a composite question. It requires examination of the claimant’s subjective evidence in the context of the available objective evidence. The adjudicator had relied on the absence of evidence of pending proceedings, the delay in leaving Turkey, the rejection of the appellant as a dedicated HADEP supporter, and country evidence indicating no significant risk on return to his home region.
6. The Immigration Appeal Tribunal was entitled to conclude that the invalidity of the adjudicator’s first reason did not materially undermine the remaining findings or the conclusion that the claim was not made out. The Tribunal’s decision was neither legally flawed nor irrational. Detailed assessment of the appellant’s publicly funded costs was ordered.

• Court of Appeal (Civil Division): dismissed the appeal and ordered detailed assessment of the appellant’s publicly funded costs.
• Immigration Appeal Tribunal: upheld the adjudicator’s conclusion that the asylum claim was not made out, notwithstanding that one reason for rejecting the January 2002 account could not stand.
• Adjudicator: accepted some earlier incidents but rejected the critical January 2002 arrest account and concluded that the appellant would not face a well-founded fear of persecution on return.
• Secretary of State for the Home Department: refused the appellant’s asylum claim.