Becerikli v Secretary of State for the Home Department

An appellate court will rarely entertain a challenge to a specialist immigration tribunal’s factual assessment of risk where the findings were open on the evidence. A failure to engage with applicable country guidance presents a different issue. It may amount to an error of law if the omission is material. In a Turkish return case, the assessment should address relevant risk factors, including family connections with separatist organisations, informer-related history, and previous arrest or detention. Permission to appeal may be granted where it is reasonably arguable that the omission could have affected the outcome.

The appellant, a Turkish Kurd, sought permission to appeal from an immigration judge’s reconsideration decision dated 28 November 2005. His asylum and human-rights appeals had been dismissed. The immigration judge found that his past detention and ill-treatment did not amount to persecution or serious ill-treatment and that return to Turkey would not create a real risk.

Ground one challenged the factual findings. Ground two alleged failure to apply the country guidance in IK Turkey CG [2004] UKIAT 00312 and the risk factors identified in A (Turkey). Ground three concerned an internal flight alternative and was accepted to stand or fall with ground two. The central issue was whether failure to engage with the country guidance was an arguable material error of law.

Permission to appeal was granted on ground two only.

1. Ground one. The court declined permission on the challenge to the immigration judge’s factual findings. Applying the approach in R: Iran, it regarded this as a specialist assessment of risk in Kurdish Turkey. The immigration judge had reached findings to which he was entitled on the evidence.
2. Ground two. IK Turkey CG contained authoritative guidance on assessing claims that return to Turkey was unsafe. Its stated starting point was normally the risk in the claimant’s home area arising from the material history there, while recognising that risk might arise from or be aggravated by activities abroad or elsewhere in Turkey. The soundness of that approach depended on the quality of the decision applying it.
3. The immigration judge had not referred to IK Turkey CG or structured the decision around it. He had also failed to consider individually the potential risk factors identified in A (Turkey), including family connections with separatist organisations such as KADEK, HADEP or DEHAP, whether the appellant had become or had been asked to become an informer, and the circumstances of any arrest or detention. The court noted the guidance concerning the Turkish authorities’ collation of information about persons of adverse interest and the recording of unofficial detentions locally.
4. Failure to take account of a country guidance case was capable of amounting to an error of law if material. The omission was reasonably arguable as material because the appellant’s family connections had received little consideration. Ground three was not determined, since it fell away whichever way ground two was resolved. The application was granted and the substantive appeal was directed to a court including one Lord Justice with asylum expertise.

• Court of Appeal (Civil Division) — [2006] EWCA Civ 693: renewed application for permission granted on ground two; permission refused on ground one and ground three left unresolved.
• Asylum and Immigration Tribunal — immigration judge’s reconsideration decision dated 28 November 2005: the appellant’s asylum and human-rights appeals were dismissed.