Yapici v Secretary of State for the Home Department

In assessing the risk faced by an asylum claimant on return, the decision-maker must consider the evidence in the round and address every material circumstance. A conditional release requiring daily reporting may be significant. The fact of release, absence of outstanding charges, or lack of evidence of later pursuit does not remove the need to assess the consequences of breaching that condition. The assessment should also take account of relevant cumulative features, including past ill-treatment, political or ethnic profile, failed-asylum-seeker status and draft-evasion concerns, where supported by the evidence. A failure to consider a material feature is an error of law. The appeal should be allowed and the case remitted where that omission may affect the risk assessment.

The appellant, an Alevi Kurd and supporter of HADEP, claimed asylum and human-rights protection after entering the United Kingdom in May 2001. An adjudicator accepted that he had been detained and seriously ill-treated on three occasions in Turkey, but dismissed his appeals. The Immigration Appeal Tribunal dismissed his further appeal on 23 September 2004, treating his release, the absence of outstanding charges and the absence of follow-up as sufficient to sustain the assessment.

The Court of Appeal considered whether the adjudicator and Tribunal had properly addressed the appellant’s departure from Turkey while subject to a condition requiring him to report daily. The central issue was whether that breach was a material factor in assessing the risk of ill-treatment on return.

1. Appeal allowed and case remitted. The adjudicator’s decision and the Tribunal’s review contained the same material defect. The case was remitted to the Asylum and Immigration Tribunal for reconsideration in the light of up-to-date material.
2. Per Lord Justice Scott Baker, the risk assessment had to be undertaken in the round. The adjudicator considered the appellant’s release without charge as showing that the Turkish authorities had no further basis for detention. That did not answer the significance of the fact that the release was conditional. The adjudicator should have considered why the reporting condition was imposed, what might follow when the authorities’ inquiries were complete, and the effect of a HADEP sympathiser’s failure to comply.
3. The omission was material because daily reporting suggested continuing official interest. The assessment also required consideration of the appellant’s cumulative circumstances: his Alevi Kurdish identity, support for HADEP, three detentions and serious past ill-treatment, return as a failed asylum seeker, draft evasion, and departure in breach of the reporting condition. The absence of evidence of follow-up was a factor in the respondent’s favour, but did not make the breach immaterial.
4. The Immigration Appeal Tribunal failed to appreciate the adjudicator’s error. The Court applied the reasoning requirement identified in Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56, at paragraph 44. The human-rights and asylum claims were not materially distinct for the purposes of the appeal.
5. Lord Justice Longmore and Lord Justice Ward agreed. The sole ground for allowing the appeal was the failure to give due consideration to the breach of the reporting condition.

• Court of Appeal (Civil Division): allowed the appeal against the Immigration Appeal Tribunal’s decision and remitted the case to the Asylum and Immigration Tribunal for reconsideration: [2005] EWCA Civ 826.
• Immigration Appeal Tribunal: dismissed the appellant’s appeal on 23 September 2004.
• Adjudicator: dismissed the asylum and human-rights appeals in August 2002. An earlier refusal of permission to appeal was subsequently quashed by consent on judicial review, after which the Tribunal granted permission to appeal.