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

In an asylum appeal, risk must be assessed by reference not only to a claimant’s actual activities and knowledge but also to what the authorities may perceive or suspect. A claimant must nevertheless provide credible evidence that such a perception would arise in the particular case; a merely possible or speculative inference is insufficient. A tribunal’s decision must be read fairly and in the round. It need not address every alternative expressly if its findings and reasoning, taken together, deal with the substance of the argument. Where a sustainable credibility finding rejects the core account, an appellate court must not reopen the facts by recasting the case around an alternative theory that was not advanced below.

The appellant, a Kurdish Turkish national of the Alevi faith, claimed asylum after arriving in the United Kingdom. His wife claimed as his dependant. The Secretary of State refused the claim, and an Adjudicator dismissed the appeal on asylum and human rights grounds. Following statutory review, the case was reconsidered by the Asylum and Immigration Tribunal, which dismissed the appeal on 23 May 2006.

The appeal concerned whether the Adjudicator’s findings were internally inconsistent concerning an alleged agreement to act as an informer and subsequent police approaches. It also concerned whether the Adjudicator had failed to assess the risk by reference to the authorities’ perception of the appellant, rather than only his actual political activity and knowledge, and whether the approach was unfair.

Charles J gave the judgment, with Latham and Ward LJJ agreeing. The appeal was dismissed. The AIT had correctly concluded that the Adjudicator’s decision disclosed no material error of law.

1. Construction of the Adjudicator’s findings. The determination had to be read fairly and in the round, using a broad rather than technical approach. On that reading, references to the appellant’s arrests being unchallenged did not amount to acceptance of the whole account, including the alleged interrogation, agreement to act as an informer and subsequent police approaches. The Adjudicator had rejected those central assertions as a matter of credibility.
2. Risk and official perception. The appellant’s actual political activity and knowledge did not alone determine the risk on return. The authorities’ perception of what he knew, or might be able to disclose, was relevant, including a mistaken or irrational perception. That possibility nevertheless required credible, case-specific evidential support. On the findings made, the alternative theory that the authorities had perceived the appellant as a potentially useful informer was no more than speculation or a theoretical possibility.
3. The guidance in A (Risk – Guidelines – Separatist) Turkey CG [2003] UKIAT 0034 (ACDOG) identified relevant areas of enquiry from which a risk assessment could be built. The factors were not a checklist. The Adjudicator had regard to that guidance and was entitled to take account of the low level of political activity, the absence of charges, the lack of useful identified information and the appellant’s previous stay in Istanbul without difficulty.
4. Alternative argument and fairness. The alternative case had not been expressly advanced before the Adjudicator. Failure to address it in separate terms was not an error of law because the determination, read as a whole, dealt with its substance. There was no procedural unfairness: the principal case had been fully addressed, the alternative had not been put, and the existing findings and reasoning properly answered it.
5. The appeal was therefore an impermissible attempt to reopen sustainable factual and credibility findings. The AIT’s conclusion was correct and the appeal was dismissed.

• Court of Appeal (Civil Division) [2007] EWCA Civ 72 dismissed the appeal and upheld the AIT’s conclusion that there was no material error of law.
• Asylum and Immigration Tribunal reconsidered the appeal under transitional provisions and dismissed it on 23 May 2006.
• Adjudicator dismissed the appellant’s asylum and human rights appeal on 21 January 2004 after the Secretary of State had refused the claim.