Bozkurt, R (on the application of) v Immigration Appeal Tribunal

In an asylum appeal, an adjudicator must apply general country conditions to the accepted facts of the individual case. A conclusion about risk on return may disclose an error of law where it fails properly to engage with material country evidence and the claimant’s accepted history. The tribunal may draw its own inferences from the country conditions and the individual facts once it has detected an error in the adjudicator’s approach. The reviewing court must respect the limits of appellate intervention, but those limits do not prevent correction of an erroneous application of general conditions to the particular case.

The claimant, a Turkish citizen of Kurdish ethnicity, sought judicial review of the Immigration Appeal Tribunal’s refusal of permission to appeal against an adjudicator’s dismissal of his asylum appeal. The adjudicator accepted that the claimant had previously been detained and beaten, had attended the funeral of a relative associated with an illegal left-wing organisation, and might be exposed to questioning on return. He nevertheless concluded that there was no reasonable likelihood that the Turkish authorities would have a record of him or would detain or ill-treat him.

The claimant argued that the adjudicator had failed properly to apply the objective country evidence, including the guidance in Hayser v Secretary of State for the Home Department [2002] UKIAT 07083. The central issue was whether the conclusion about risk resulted from an erroneous application of general country conditions to the facts of the particular case.

1. The application was allowed. The matter was remitted to the Immigration Appeal Tribunal. Costs were granted to the publicly funded claimant.
2. The court recognised the limits on intervention by both the tribunal and a reviewing court. The relevant issue was the application of general country conditions to the facts of the particular case, identified by reference to Indrakumar v Secretary of State for the Home Department [2003] EWCA Civ 1677.
3. In that context, the tribunal may draw its own inferences, as may an appellate court under the CPR, once it has detected an error in the adjudicator’s approach. The tribunal’s jurisdiction depends upon identifying an error of law.
4. The adjudicator’s conclusion that the Turkish authorities would not have a record of the claimant was erroneous. It failed properly to apply the general country conditions to the accepted facts, including the claimant’s previous detention and ill-treatment, his association with a person connected with TKPML, the treatment of returnees, and the risk of referral to the Anti-Terror Branch.
5. The Immigration Appeal Tribunal therefore erred in law by refusing permission on the basis that the adjudicator’s findings were open to him on the evidence.
6. Permission to appeal was granted. The judge stated that the significant issue concerned the interrelationship between objective evidence and the facts of the individual case, rather than the interpretation of Hayser itself.

• Special adjudicator: dismissed the claimant’s asylum appeal against the Secretary of State’s decision.
• Immigration Appeal Tribunal: on 9 April 2003 refused permission to appeal, stating that the adjudicator’s findings were open to him on the evidence.
• High Court (Administrative Court): allowed the judicial review application, granted permission to appeal, and remitted the matter to the tribunal.