R v. Secretary of State for the Home Department, Ex parte Gunes

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte GUNES

Queen's Bench Division

[1991] Imm AR 278

Hearing Date: 21 January 1991

21 January 1991

Index Terms:

Political asylum -- applicant harassed in home village -- able to live peacefully elsewhere in home country -- whether in those circumstances entitled to political asylum -- whether on the facts the Secretary of State had acted perversely in concluding that the applicant would not be at risk outside the neighbourhood of his own village. HC 251 para 75: United Nations Convention relating to the status of refugees (1957) and Protocal (1966) art 1A(2): UNHCR Handbook on procedures and criteria for determining refugee status para 91.

Held:

The applicant sought judicial review of the refusal of the Secretary of State to grant him political asylum. He was a Turkish Kurd. He had been refused leave to enter the United Kingdom: he had been granted temporary admission and then had gone to ground. When arrested four years later he claimed asylum. The Secretary of State accepted that he came from a village subject to repeated harassment by the authorities and that his family had been assaulted. The applicant however had lived for some months peacefully in Istanbul. His family had dispersed from the village: there was no reason why the applicant should return there. The Secretary of State had concluded that the applicant could live peacefully elsewhere in his home country and in consequence, was not entitled to political asylum. It was argued before the court that to refuse to grant political asylum on the theoretical possibility that the applicant could live peacefully in Turkey elsewhere than in his home village was too narrow an interpretation of the Convention: the decision of the Secretary of State that the applicant could do that was, on the evidence, in any event, perverse. Held: 1. Following Yurekli the Secretary of State had been entitled to adopt the approach he had adopted. Although the UNHCR Handbook was not, following Mendis, binding on the courts, its guidance was helpful and supported the Secretary of State's approach, on the facts. 2. Likewise, on the facts, the Secretary of State's conclusion that the applicant could live peacefully elsewhere in Turkey was not perverse.

Cases referred to in the Judgment:

Mendis v Immigration Appeal Tribunal [1989] Imm AR 6. R v Secretary of State for the Home Department ex parte Yurekli [1990] Imm AR 334. Yurekli v Secretary of State for the Home Department [1991] Imm AR 153.

Counsel:

R Scannell for the applicant; D Pannick for the respondent PANEL: Simon Brown J

Judgment One:

SIMON BROWN J: The applicant is a Turkish Kurd aged 20. On 21 December 1986 when he was 16 he arrived in the United Kingdom. He was refused leave to enter but granted temporary admission under the provisions of the second schedule. He failed to comply with the terms of that admission and, in effect, went to ground. On 2 August 1990 he was arrested by the police as a suspected immigration offender. The following day he applied for political asylum. He was interviewed a month or so later on 7 September. His case advanced at interview was considered. On 10 October 1990 he was given a minded to refuse notice and, in the ordinary way, further interviewed. It is unnecessary to dwell on the minded to refuse notice. It concluded with the Secretary of State expressing himself "satisfied that the Turkish authorities have no interest in [him]". Following that further interview, on 15 October solicitors instructed on the applicant's behalf wrote a five page letter setting out further detailed representations relevant to the asylum application. On 18 October, in a three page letter, the Home Department refused the application. At the applicant's initial interview his essential case on the facts, as summarized in paragraph two of his pleaded grounds for relief, was as follows: "Since 1980 his village had been raided every month and his family taken and beaten; he himself complained of being beaten in 1984, 1985 and 1986 on almost 30 occasions and of being detained for between 3-4 days during which time he was kept without food and beaten with truncheons and rifle butts and kicked. His brother had been taken by the gendarmerie in 1982 and had not been heard of since. His father had been beaten so severely that his brain was damaged and he became paralysed on one side. On the occasion of his last detention the applicant broke a window and escaped, fleeing under rifle fire. Unable to return to his village he went to his uncle's in Gurun. The latter obtained a passport for him and sent him to Istanbul. After some three months in Istanbul the applicant fled to the United Kingdom." In his decision letter the Secretary of State dealt with many of the matters raised and amongst the clearly determinative parts of his decision were these passages. "The Secretary of State is prepared to accept that your village was under pressure from the authorities because of their activities against the PKK and that villagers, including you, could find themselves subject to harassment and ill-treatment. The Secretary of State is also prepared to accept that large numbers of the village's inhabitants were affected."

. . .

He considers . . . that . . . your experiences of being questioned and ill-treated resulted from indiscriminate action by the authorities rather than a specific interest by them in you. He does not believe you are wanted by the Turkish authorities.

. . .

Your solicitors have said that the fact you escaped from detention in the police station in your home village would almost guarantee your re-arrest if you returned to your village. This may be so but the Secretary of State notes that all your family have dispersed and that you yourself lived without problem in Istanbul for three months in 1986, the year you left Turkey. The Secretary of State considers that you could live without being persecuted in Turkey even though from your claims it could be unwise for you to return to your village. . . . you say that although you were too young to join the PKK when you were in Turkey (you were 16 when you left) you used to paint slogans on the walls and that because of this the village was raided and you were tortured. The Secretary of State believes it is an exaggeration to claim that the village was raided for this reason alone and is of the view, as already indicated, that you were not singled out. Your solicitors say that if you returned to your village you would become more involved in political activities. The Secretary of State does not consider it inevitable that you should return to your village or become more politically involved.

. . .

The Secretary of State is prepared to accept that you have been ill-treated in the past and does not therefore require medical confirmation of this". In the final paragraph the Secretary of State explained in language one has seen in other cases that he accepts that some Kurds and Alevis from Turkey are refugees but does not accept that all are, irrespective of the merits of their claims, and indicates that every application is considered on its own individual merits. So approached, this applicant's claim was rejected. Although the pleaded grounds of challenge are rather wider, the application today is advanced essentially on two basic grounds. The first ground, encapsulated in paragraph 10, states: "The applicant will argue that against the background of the Secretary of State's acceptance of his 'almost guarantee(d)' arrest if he returns to his home village the question to be determined is whether such treatment would amount to persecution and not whether as a theoretical possibility he could live elsewhere without being persecuted. The applicant will argue that the Refugee Convention should not be so narrowly construed as to prevent a person from qualifying as a refugee if it is theoretically possible to live elsewhere in the country of his nationality without being persecuted". In his oral submissions in elaboration of that ground Mr Scannell for the applicant did not shrink from submitting that his client is entitled to asylum if the Secretary of State were to conclude that upon his choosing to return to his village he would face persecution. That fact alone, it is suggested, carries with it the inescapable conclusion that the applicant has suffered persecution within the Convention and is necessarily to be regarded as satisfying his claim for political refugee status. It seems to me an impossible submission. The issue before the Secretary of State can be stated by reference to the terms of rule 75 of HC 251 -- a paragraph which properly reflects the requirements of the Convention. Applying that rule to the facts of this case the issue can be stated thus: has the applicant, as a Turkish Kurd, a well-founded fear of being persecuted in Turkey? The basis of the Secretary of State's decision that he has no such well-founded fear is, in my judgment, entirely plain. Paraphrasing the passages already cited, it is essentially this. True, whilst the applicant was living in his home village in the years 1980 to 1986-1984 to 1986 in particular -- it was attracting general harassment and ill-treatment. He personally, however, is of no particular interest to the Turkish authorities and they are not to be regarded as anxious to track him down for ill-treatment in the future. His own ill-treatment was, in the language of the Secretary of State, the result of "indiscriminate action" by the authorities. He was "not singled out". The fact of the matter is that the applicant's family have now dispersed from that village and there appears no reason at all to suppose that he himself would go back there were he to return to Turkey. He certainly has no particular occasion to do so. There is, in the Secretary of State's view, no reason to suppose that elsewhere in Turkey than in that particular village would he face any sensible risk of future persecution. It is not merely that he was not persecuted during the three short months that he spent in Istanbul immediately prior to his arrival in the United Kingdom; it is that he could -- on the basis of the Secretary of State's view of the facts -- safely live anywhere in Turkey save only in his original village. On that approach to the facts it seems to me that the Secretary of State, so far from being bound -- as the applicant asserts -- to uphold his claim to asylum, is well entitled to refuse it on the footing that he can safely return, in effect, to all of Turkey save only his villave of origin. That that is a proper approach to the case in my judgment is clear both as a matter of common sense and indeed upon such authority as exists. That consists of the decision both at first instance and by the Court of Appeal in R v Secretary of State for the Home Department ex parte Yurekli [1990] Imm AR 334 (as yet unreported in the Court of Appeal). It is sufficient to cite this short passage from Otton J's judgment as first instance: "If it was possible for the applicant to live in another part of his country without persecution that was a factor which the Home Secretary was entitled to take into account when he came to his decision." Such an approach is clearly implicit also in paragraph 91 of the Handbook on procedures and criteria for determining refugee status -- a handbook not binding upon the courts although, in the view of the Court of Appeal expressed in R v Immigration Appeal Tribunal ex parte Mendis [1989] Imm AR 6, providing helpful guidance as to the content and application of the Convention. Paragraph 91 states this: "The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refugee in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so." Implicit in that final clause is this. If in all the circumstances it would be reasonable to expect someone to return to another part of his country of nationality then that is a matter that can properly found an adverse decision on a claim to refugee status. That leads me to the second ground of challenge which is that of alleged perversity. Mr Scannell, in effect, asserts that the Secretary of State cannot reasonably have concluded that this applicant will not be persecuted if he returns to Turkey. Such a contention in my judgment can only be advanced on the basis that he will return to his village of origin. there is simply no evidence before the court on which to found the assertion that the Secretary of State was bound to regard the applicant as liable to be persecuted elsewhere in Turkey. That being so, the contention, in my judgment, fails for the same reason as the earlier submission. Given that it is not here unreasonable for the Secretary of State to have concluded that this applicant can properly be expected to return to Turkey and yet not to his village -- as to which I have no doubt -- then, in my judgment, it follows as the night the day that there can be no possible basis for a perversity challenge in this case. On the contrary the Secretary of State seems in the instant case to have allowed the very fullest representations to be urged upon him, to have considered them with conspicuous care and to have reached a decision which it was well-open to him on the facts to have arrived at. Provided only and always that he was entitled in law to withhold asylum on the footing that this applicant would only be persecuted were he to return to his village of origin then, in my judgment, the decision he has taken is unimpeachable. I have already indicated why in my judgment he was entitled to approach the case in that fashion. For those reasons this challenge fails and is dismissed.

DISPOSITION:

Application dismissed

SOLICITORS:

Seifert, Sedley, Williams; Treasury Solicitor

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