Egilmez v Secretary of State for the Home Department

For an appeal governed by paragraph 22 of Schedule 4 to the Immigration and Asylum Act 1999, the Immigration Appeal Tribunal could reconsider fact as well as law, but it could not conduct a rehearing. It had to identify an error in the adjudicator’s reasoning or application of law. A different view of the facts, even if reasonable, was insufficient.

Where an adjudicator accepts evidence of past detention and draws risk inferences that are open on the evidence, the tribunal must not substitute its preferred assessment. In an asylum claim, the authorities’ perception of the claimant is material. Attendance at a funeral associated with a separatist organisation may be suspicion-generating and cannot be dismissed categorically.

An Alevi Kurd from south-east Turkey claimed asylum and protection under Article 3 after arriving in the United Kingdom. The adjudicator accepted his evidence of three detentions and allowed his appeal, finding a future risk of transfer to the anti-terror branch and ill-treatment. The Secretary of State appealed.

The Immigration Appeal Tribunal allowed that appeal in a decision notified on 22 September 2004, holding that the adjudicator’s reasons were insufficient and the overall finding was unsustainable. The claimant appealed to the Court of Appeal. The central issue was whether the Tribunal had identified an appealable error of law or had merely preferred a different view of the facts.

Appeal allowed. The Court of Appeal restored the adjudicator’s decision. The Immigration Appeal Tribunal had no basis for interfering with it.

1. Because the adjudicator’s determination had been promulgated before 9 June 2003, paragraph 22 of Schedule 4 to the Immigration and Asylum Act 1999 governed the Tribunal’s jurisdiction. That jurisdiction extended to fact as well as law. It did not, however, make the appeal a rehearing.
2. The Court applied the approach stated by Laws LJ in Subesh and others v The Secretary of State for the Home Department [2004] EWCA Civ 56. An appellant must identify objective grounds showing that a different view of the facts is the right view. It is insufficient that another view is merely reasonable or possible, or that the appellate tribunal would prefer it. Intervention is justified where the reasoning process or application of law requires a different conclusion. The error need not be perversity.
3. The adjudicator had accepted the evidence of the appellant’s three detentions and was entitled to infer that he had been detained on suspicion of being a separatist. The adjudicator was also entitled to infer that, on return as an undocumented asylum seeker with that history, the detentions might come to light and lead to transfer to the anti-terror branch and ill-treatment. Those inferences were open on the evidence, even though another adjudicator might have reached a different conclusion.
4. The Tribunal had wrongly treated attendance at the funeral of a PKK guerrilla as incapable of evidencing support. Support could range from active participation to passive sympathy. The relevant issue was the authorities’ perception of the appellant. The Tribunal also failed properly to consider the second detention, during which he was accused of being a separatist, and the cumulative suspicion-generating factors discussed in Hayser v The Secretary of State for the Home Department [2002] UKIAT 07083.
5. The Tribunal had allowed the Secretary of State’s appeal on the supposed error of law, but no such error was identified. The adjudicator’s determination was therefore restored.

• Court of Appeal (Civil Division) ([2005] EWCA Civ 827) — Appeal allowed and the adjudicator’s decision restored.
• Immigration Appeal Tribunal — Allowed the Secretary of State’s appeal, holding that the adjudicator’s determination was unsustainable. Decision notified on 22 September 2004.
• Adjudicator — Allowed the asylum and human-rights appeal. Determination promulgated on 4 April 2003.