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

Permission to appeal should be granted where a tribunal’s rejection of an asylum claim is arguably founded on mistaken discrepancies, an unsound factual premise, or failure to engage with material accepted persecution. In assessing risk on return, a tribunal must confront the applicant’s accepted history of persecution and explain how it bears on present risk. It cannot rely solely on the safety of relatives or the absence of recent harm if those matters do not address that history. Country guidance must be considered in its factual context. Where alternative reasoning for the same result is unconvincing, a full hearing should take place with the respondent represented.

The appellant, an Alevi Kurd from south-east Turkey, claimed asylum, humanitarian protection and relief under the Human Rights Act after entering the United Kingdom. On full reconsideration, the Asylum and Immigration Tribunal accepted his history of detention and ill-treatment between 1994 and 2002 but rejected his account of events in 2003. It concluded that he would not now be of interest to the Turkish authorities, noting the safety of his wife, child and brothers.

The appellant renewed his application for permission to appeal. The central issues were whether the tribunal’s credibility findings were arguably flawed and whether it had properly assessed accepted past persecution, present risk and the relevant Turkish country guidance.

Lord Justice Tuckey granted the renewed application for permission to appeal. Lord Justice Wilson agreed.

1. Credibility findings. It was well arguable that the tribunal had been mistaken in treating aspects of the appellant’s account as discrepant. The discrepancies relied on therefore required examination at a full hearing.
2. Unsound factual premise. The tribunal also reasoned that the appellant would not have been released if Hasan had confessed. The appellant had not said that Hasan confessed. That premise was therefore unsound and materially undermined the reasoning.
3. Risk on return. The tribunal had accepted a significant history of persecution from 1994 to 2002. Its reliance on the absence of subsequent harm to family members and on the continued safety of the appellant’s brothers did not make it clear that this history had been properly considered. The tribunal referred to the Turkish country guidance in ACDOG [2003] UKIAT 00034, subsequently confirmed in IK (Returnees - Records – IFA) Turkey CG [2004] UKIAT 00312, but it was unclear whether the guidance had been applied in the light of the accepted history. The tribunal’s alternative reasoning, based on the appellant’s release without charge and supposed lack of information, was unconvincing as a basis for ignoring or overlooking the 2003 incident.

There was sufficient unease about the tribunal’s decision to justify a full hearing at which the Secretary of State would be represented. Order: application granted.

• Court of Appeal (Civil Division): renewed application for permission to appeal granted.
• Asylum and Immigration Tribunal: on full reconsideration, dismissed the appellant’s appeal against the Secretary of State’s rejection of his claims for asylum, humanitarian protection and Human Rights Act relief (AIT No. AS/59157/2003).