Demirkol v Secretary of State for the Home Department

In asylum and Article 3 appeals, the tribunal must decide whether, applying the appropriate standard of proof, there is a real risk of persecution or Article 3 ill-treatment. It is insufficient that a rational person might regard such a risk as possible. An appeal confined to legal error cannot be used to reopen factual merits or recast disagreement as Wednesbury irrationality where the tribunal’s reasoning is clear and sustainable. Country guidance provides general guidance subject to the facts; it does not create rigid rules. Section 101 of the Asylum and Immigration Appeal’s Act 2002 limits IAT intervention to errors of law, but an independently sound alternative conclusion may sustain the result.

The appellant, a Turkish citizen, challenged the refusal of her asylum claim and removal directions. An adjudicator dismissed her appeal, accepting that she had previously suffered politically motivated ill-treatment but finding no real risk on return and no undue hardship in relocating within Turkey.

The IAT found an error in the adjudicator’s assessment of risk in the appellant’s home area, but treated it as immaterial because the alternative conclusions concerning return through Istanbul and internal relocation remained sustainable. The appeal concerned the proper standard of risk, the limits of legal-error review, the use of country guidance, and whether the IAT had exceeded its statutory jurisdiction.

The appeal was dismissed. Lord Justice Laws gave the leading judgment, with Lord Justice Wilson and Lord Justice Richards agreeing.

1. The appellant’s argument that an “alternative view” favourable to her required the appeal to succeed was misconceived. The tribunal had to decide whether, applying the appropriate standard of proof, there was a real risk of persecution or Article 3 ill-treatment. A possibility that a rational person might take a different view was insufficient.
2. The challenge to internal relocation was an appeal on the factual merits. The Court of Appeal was not the judge of those merits. The tribunal’s reasoning was painstaking and clear, and there was no proper Wednesbury challenge. Country guidance decisions such as IK (Returnees – Records – IFA) Turkey CG [2004] UKIAT 00312 had to be read in the light of the detailed facts of the particular case. They did not establish sharp-edged rules for applying the refugee-status tests.
3. The court accepted that section 101 of the Asylum and Immigration Appeal’s Act 2002 confined the IAT’s power to interfere with an adjudicator’s decision, where applicable, to grounds of law. That did not assist the appellant. The adjudicator had made a further conclusion that the difficulties in Istanbul did not prevent relocation elsewhere in Turkey with her husband without undue hardship. That conclusion disclosed no legal flaw.
4. Accordingly, even if the IAT had wrongly revisited the adjudicator’s conclusion about risk in the home area, the alternative conclusion independently sustained the outcome. There was no basis for impugning the IAT’s decision. Order: appeal dismissed.

• Court of Appeal (Civil Division) — On 23 January 2006, dismissed the appeal and upheld the IAT’s decision. [2006] EWCA Civ 481
• Immigration Appeal Tribunal — Its decision, notified on 12 January 2005, found an error in the assessment of risk in the appellant’s home area but held it immaterial. It upheld the dismissal of the asylum appeal because return to Istanbul and internal relocation were not shown to involve a real risk or undue hardship.
• High Court — On 13 October 2004, quashed the IAT’s initial refusal of permission to appeal to itself on statutory review.
• Adjudicator — On 23 April 2004, dismissed the appeal against refusal of asylum and the issue of removal directions.