AA (Turkey) v Secretary of State for the Home Department

In an asylum appeal, a tribunal assessing risk on return must consider every matter reasonably relevant to that risk. This includes alleged ill-treatment during earlier detention and material changes affecting the treatment of political activity. A finding that the claimant left principally to avoid military service does not remove that duty. Where a tribunal proposes to depart from material factual findings that have not been challenged, it should warn the affected party if the departure may affect the outcome. Earlier findings cannot be treated as immaterial unless the original conclusion remains sustainable after the relevant issues have been addressed.

The appellant, a Turkish national claiming Kurdish ethnicity and the Alevi faith, claimed asylum on arrival in the United Kingdom. He alleged political, ethnic and religious persecution, including repeated detention and ill-treatment, and feared persecution on return. The Secretary of State refused the claim under the Refugee Convention and Article 3 of the European Convention on Human Rights.

An adjudicator dismissed the appeal in 2003. He found that the appellant had probably been detained because of low-level HADEP activities, but considered that the appellant had left principally to avoid military service. Following judicial review proceedings, the case was remitted for reconsideration. The AIT dismissed the appeal in 2006, treating the earlier findings as immaterial and concluding that detention as a draft-evader would not breach either Convention. The central issues were whether the AIT could depart from the adjudicator’s findings without warning and whether it had adequately assessed risk on return.

1. Appeal allowed and matter remitted. Lord Justice Laws gave the leading judgment. Lord Justice Buxton agreed with his reasoning, and Lord Justice Ward also agreed.
2. The challenge based on Rule 62.7 of the Asylum and Immigration Tribunal Procedure Rules 2005 did not assist because this court had already held the sub-rule invalid in [2007] EWCA Civ 16. The separate submission that there were insufficient objective grounds for departing from the adjudicator’s findings was also rejected. The AIT had proffered such grounds. The authority cited for that submission, [2004] EWCA Civ 56, did not assist.
3. However, the AIT had not warned the appellant that it proposed to depart from material findings which had not been challenged by the Secretary of State. If the proposed departure might affect the result, such warning should be given. The need was reinforced by the parties’ and tribunal’s original misunderstanding of the scope of the reconsideration jurisdiction.
4. The AIT’s reasoning also depended on rejecting the adjudicator’s findings. Its statement that the appellant had no history of detention as a HADEP supporter contradicted the earlier findings that he had probably been detained because of his HADEP activities. A tribunal cannot treat earlier findings as immaterial unless the earlier conclusion is otherwise sustainable.
5. The adjudicator’s conclusion that the appellant left principally to avoid military service did not relieve the tribunal of considering matters reasonably relevant to risk on return. The appellant advanced both a desire to avoid military service and a continuing fear of political persecution. The allegations of ill-treatment during detention and the subsequent proscription of HADEP required consideration. They might affect the risk on return, including under Article 3.
6. Given the requirement for anxious scrutiny in asylum cases, the omissions were material. The claim might ultimately prove weak, but the decision could not stand. The appeal was allowed and the matter remitted for reconsideration.

1. Court of Appeal (Civil Division) allowed the appeal from the AIT’s determination dated 20 June 2006 and remitted the matter for reconsideration.
2. Asylum and Immigration Tribunal dismissed the appeal on reconsideration, concluding that return would not expose the appellant to treatment breaching either Convention.
3. Adjudicator dismissed the original appeal on 3 April 2003, finding that the appellant had not established a well-founded fear of persecution or a risk contrary to Article 3.
4. Judicial review proceedings resulted in a consent order in February 2004 quashing the refusal of leave and remitting the matter to the tribunal for reconsideration in light of recent case law.