Ahmet v. Secretary of State for the Home Department

AHMET v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/3018/71 (24)

Immigration Appeal Tribunal

[1973] Imm AR 1

Hearing Date: 27 June 1972

27 June 1972

Index Terms:

Marriage -- Settlement in United Kingdom -- Turkish Cypriot admitted as visitor marrying woman resident of Irish descent -- Hardship if wife required to live in Cyprus -- Religious, linguistic and cultural differences and communal tension -- Whether hardship of degree justifying revocation of husband's conditions of stay -- Cmnd 4295, para 24.

Political asylum -- Turkish Cypriot -- Finding on the facts given in evidence -- Grounds for grant of asylum not satisfied -- Cmnd 4295, para 26.

Held:

The appellant, a citizen of Cyprus from the Turkish community, entered the United Kingdom as a visitor in August 1968. In March 1969 he married a young woman resident of Irish descent. He applied for revocation of his conditions of admission on the ground that his wife would suffer hardship if she had to reasons such as his wife expecting a child in May 1970. Subsequently the appellant claimed political asylum on the ground that if he returned to Cyprus he would be arrested as a deserter from the army. The respondent refused the application for political asylum (under para 26 of Cmnd 4295 n1) and for settlement as the husband of a resident (under para 24 of Cmnd 4295 n2), and the adjudicator to whom the appellant appealed upheld the respondent's decision under both paragraphs on the further evidence placed before him. On further appeal to the Tribunal, n1 Paragraph 26 of Cmnd 4295 reads: -- "A Commonwealth citizen who does not otherwise qualify for an extension of stay may claim that, if an extension were not granted, he would have to go to a country to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim will be carefully considered in the light of all the relevant circumstances." This paragraph is repeated in H.C.80, at para 30, and a footnote to both paragraphs states that the grant of asylum is in accordance with Article 1 of the Convention Relating to the Status of Refugees (Cmnd 9171). n2 The relevant part of para 24 of Cmnd 9245 is set out on p 2, post. Held: (i) (affirming the adjudicator's decision relative to the grant of political asylum), the evidence did not support the appellant's contention that his fear of persecution in Cyprus was well founded (see p 4, post); (ii) (reversing the adjudicator), the appellant should be permitted to settle in this country under para 24 of Cmnd 4295 because of the degree of hardship which would be caused to his wife by reason inter alia of her different race, religion, language and culture, if she were required (as anticipated) to live in the home of her parents-in-law in a Turkish enclave in Cyprus in the conditions of communal tension now prevailing on the island (see p 5, post). Hector v Secretary of State for the Home Department ([1972] Imm A R 41) considered.

Counsel:

Mrs M. Dines of the Joint Council for the Welfare of Immigrants, for the appellant. R. B. Prosser for the respondent.

PANEL:

P. N. Dalton Esq (Vice-President), Mrs J. H. M. Goodchild, T. Neil Esq.

Judgment One:

THE TRIBUNAL: The appellant Ersen Ahmet is a citizen of Cyprus born on 15 October 1945. He was admitted to the United Kingdom for 6 months as a visitor on 26 August 1968. He was subsequently granted an extension of stay until 26 May 1969. On 12 March 1969 Mrs Bridget Agnes Ahmet sought Home Office permission for her husband to settle in the United Kingdom with her. She produced a marriage certificate to show that she and Mr Ahmet were married on 8 March 1969. Mrs Ahmet said that she had been born in the Republic of Ireland in 1944 and that she had lived in this country since the age of 7 years. She said that her husband did not like Cyprus and she could not bear the thought of parting from her parents, relatives and friends; she did not know a single person in Cyprus. Mrs Ahmet's application was considered in the light of para 24 of Cmnd 4295, which provides that a Commonwealth citizen who marries a woman resident in the United Kingdom does not on that account qualify for settlement here "unless refusal would be undesirable because of the degree of hardship which, in the particular circumstances of the case, would be caused if the woman had to live outside the United Kingdom in order to be with her husband after marriage" n3. n3 This proviso in para 24 of Cmnd 4295 is repeated in para 25 of Cmnd 80 with, however, an additional proviso facilitating the settlement of a Commonwealth citizen in similar marital circumstances after admission in some temporary capacity if one of his grandparents was born in the United Kingdom and Islands. The Home Office did not consider that the degree of hardship which would be caused by Mrs Ahmet having to live abroad with her husband was sufficient to justify allowing him to stay and the application was accordingly refused. Further extensions of stay were granted to the appellant for different reasons such as Mrs Ahmet was expecting a child in May 1970. On 16 July Mr R Brown asked the Minister of State to look into the matter further, saying that Mr Ahmet had claimed that if he had to return to Cyprus he would be arrested as a deserter. Such a claim in the Home Office experience is very often put forward by Cypriots, and enquiries have shown that there is generally no foundation for it. However, because of the condition of Mr and Mrs Ahmet's baby the Minister of State was prepared to consider a further extension of 3 months. Mr Ahmet had sent his passport to the Immigration and Nationality Department and when attempts were made to return it to the appellant on each occasion it was returned undelivered by the Post Office and it was necessary to grant an extension of stay until 30 November 1971. Mr Ahmet appealed to an adjudicator and his appeal was adjourned on 21 January 1972 to enable the Home Office to obtain an authoritative appraisal of the appellant's claim to political asylum which had been put forward on his behalf by the Joint Council for the Welfare of Immigrants. Under the provisions of para 26 of Cmnd 4295 there has to be reliable evidence that the fear of persecution is well-founded n4 and since Mr Ahmet had produced no evidence either to substantiate his claim to have been in the army or of persecution the Secretary of State could find no ground for reversing his original decision. n4 Paragraph 26 of Cmnd 4295 is set out in footnote 1, ante. At the resumed hearing of the appeal considerable evidence was placed before the adjudicator, Mr W. J. Coley. In his determintation Mr Coley said that there were two grounds of appeal before him. First, the appellant claimed that if he had to leave the United Kingdom his wife, whom he had married since arriving here, would suffer hardship, and secondly if he had to return to Cyprus his life might well be in danger. Mr Coley set out the relevant facts and history of this matter and then considered at length the appellant's appeal that he be granted political asylum. Mr Coley said: --

"I have very carefully reviewed all the evidence as to the allegations of the appellant that he is in fear of death or punishment at the hands of the Greek or Turkish authorities. I am bound to say that on the verbal evidence given at the hearing I am far from satisfied that the appellant is at risk from either of the authorities mentioned. I think it is of particular significance that the claims in this connection were not made until every other avenue had been explored and exhausted."

Mr Coley then dismissed the appellant's appeal that he be granted poliotical asylum. The adjudicator next considered in most careful detail the submission that the exclusion of the appellant from the United Kingdom would be undesirable because of the degree of hardship which, in the particular circumstances of the case, would be caused if his wife had to live outside the United Kingdom in order to be with her husband after marriage. In the result the adjudicator said that whilst he had the greatest sympathy with Mrs Ahmet in her wish to remain in this conntry he did not consider, in all the circumstances, that the degree of hardship she would suffer by living in Cyprus would be in any way exceptional and fall within the provisions of para 24 of Cmnd 4295. He dismissed the appeal. Leave to appeal to the Tribunal was given, and at the hearing of the appeal before the Tribunal Mrs Dines first argued the case for granting the appellant political asylum. Among the points Mrs Dines made was that it was not in dispute that the appellant had been a guerilla member of the Turkish Forces in Cyprus, and a recent report from the Secretary-General of the United Nations to the Security Council n5 showed that there was an atmosphere of tension and receimination in the island which is extremely dangerous and it is a situation in which reprisals could easily be carried out. n5 United Nations Press Release SG/SM/1713 -- SC/3324 -- CYP/670. As to the second ground of appeal, namely that of hardship to the wife, Mrs Dines submitted that hardship would be experienced irrespective of the political situation. Mrs Ahmet would have to live within a Turkish enclave in a community entirely Turkish and of a different religion and speaking a language she does not understand. Mr Prosser submitted that every relevant matter had been fully and carefully considered by the adjudicator and urged that the appeal should be dismissed. If, however, it were to be allowed, it could only be on the ground of hardship since there are no good grounds for granting political asylum. We can dispose of the ground of appeal relating to political asylum quite shortly. Mrs Dines had placed great reliance on a letter from the United Nations High Commission for Refugees in which it was stated that it was considered that Mr Ahmet's fear of persecution was well founded and that he should not be returned to Cyprus. In the determination Mr Coley said: --

"I do not think any adjudicator would lightly disregard the recommendations of the High Commission for Refugees and this is one aspect of the case which by Mrs Dines upon which the recommendation of the High Commission is based is written in dramatic terms and that two of the substantial matters mentioned therein are without foundation, namely the allegations that the appellant was a member of a saboteur group blowing up trains and that he had to be smuggled out of the country. Being satisfied as I am that these two particular matters have no substance, I am in considerable doubt as to whether the incident alleged to have occurred when the appellant went to make an application for a passport in fact happened. As I have said before, there is no corroborative evidence of the incident, and the demeanour of the appellant in giving evidence as to this matter led me to believe that the incident was exaggerated if it in fact happened at all. It is clear from the evidence of Mr Halil Direkoglou that the Turkish community are now free to come and go as they please. It seems to me impossible that every private soldier who has ever served the Turkish community could be on a Greek wanted list and I am satisfied by the appellant's own evidence as ot his exit from Cyprus that it is very unlikely that he is included in any such list. In addition to the two important matters I have referred to in Mrs Dines' letter there are discrepancies of the celebrations held on 30 August every year. There can be no doubt that the recommendation of the United Nations High Commission for Refugees has largely been based on the information supplied in Mrs Dines' letter. I am of the opinion that if the High Commission had attended the hearing of the appeal and listened to the evidence a different conclusion would have been reached. Having regard to the balance of probabilities, the lack of corroborative evidence and the point of time when the appellant first raised the issue of political asylum, I have formed the opinion that the Home Office view of the matter and the respondent's decision on the claim to political asylum is justified, particularly bearing in mind that the onus of proof rests on the appellant and I am not satisfied that he has discharged this burden."

Mrs Dines' submissions before us have in no way led us to think that the adjudicator should have found that the appellant had established that he should be granted political asylum. We are fully satisfied that Mr Coley came to a correct decision in this matter. Mr Coley mentioned the case of Hector n6 in his determination when he was considering the question of hardship to the appellant's wife. In that case the Tribunal said (at p 44): -- n6 Hector v Secretary of State for the Home Department, [1972] Imm A R 41; TH/184/70.

"In the opinion of the Tribunal, the Home Department when framing r 24 probably had in mind difficulties of a more serious and lasting nature such as, for example, might face a woman settling in a strange country on account of differences in race, language, customs or religion or on account of political intolerance."

In this case the appellant is a Turkish Cypriot and a Moslem. His wife is of a different race and religion being Irish born and a Christian. If she has to go to Cyprus in order to be with her husband it appears that she would have to live in a Turkish enclave with her husband's parents and, owing to the atmosphere of tension and recrimination to which the Secretary-General refers, it seems unlikely that she would be able to come and go with any freedom. There is evidence that she does not get on with her husband's mother; this may well be so since their outlook and way of life must in many aspects be totally different. In his determination Mr Coley said he realised that living in the Turkish enclave in Nicosia was not quite the same as living in London. We think that this is quite a considerable understatement. Each case, as has often been said, falls to be decided on its particular facts and in this case we are satisfied it would be undesirable to refuse to vary the conditions of the appellant's stay to enable him to settle here because of the degree of hardship which would be caused to Mrs Ahmet if she had to live outside the United Kingdom in order to be with her husband. For these reasons we allowed the appeal and directed that the appellant's conditions of admission should be revoked.

DISPOSITION:

Appeal allowed.