Demirkaya v Secretary of State for the Home Department [1999] EWCA Civ 1654

A Turkish Kurd who had suffered severe torture by Turkish police sought asylum in the UK. The Immigration Appeal Tribunal dismissed his appeal despite accepting his account of persecution. The Court of Appeal allowed the appeal, finding the Tribunal failed to properly consider his past persecution when assessing future risk.

Facts

The appellant, a Turkish Kurd born in 1956, was a non-violent PKK sympathiser who collected funds, distributed publicity material and took food to guerrillas. He suffered severe persecution in Turkey including multiple arrests, beatings, falaka, and bayonet injuries leaving 35 scars on his back. In February 1993, he was detained for a week and subjected to falaka, beatings and immersion in iced water. In June 1993, he was again detained and subjected to similar treatment, including being pushed through a third-floor window and hung upside down while police threatened to kill him and pass it off as suicide. He fled to the UK and claimed asylum on arrival in October 1993.

Procedural History

His asylum claim was refused in June 1994. After multiple appeals and remittals due to procedural irregularities including inordinate delay, the Immigration Appeal Tribunal ultimately dismissed his appeal in September 1998, accepting his account as true but concluding he would not face persecution if returned.

Issues

1. Whether the Tribunal misunderstood or misapplied the decision in Ravichandran regarding whether ill-treatment on return could amount to persecution.

2. Whether the Tribunal properly considered that beatings anticipated on return could constitute persecution.

3. Whether the Tribunal adequately considered the appellant’s past persecution when assessing his well-founded fear of future persecution.

4. Whether the Tribunal applied the correct burden of proof.

Judgment

The Court of Appeal allowed the appeal. Stuart-Smith LJ, delivering the main judgment, found significant deficiencies in the Tribunal’s reasoning.

The Ravichandran Point

The Tribunal’s reference to Ravichandran was criticised as cryptic and potentially misleading. Stuart-Smith LJ explained:

That was not the effect of Ravichandran; on the contrary everything depended on the degree of ill-treatment.

Past Persecution

The Court found the Tribunal failed to properly consider the appellant’s horrific past experiences. Stuart-Smith LJ stated:

In my judgment, if it is the opinion of the Tribunal that there has been such a significant change that the appellant is no longer at risk, it is incumbent upon them to explain why this is so.

Citing Professor Hathaway’s analysis, the Court noted that past persecution is generally probative of future risk unless there has been significant change in circumstances.

Standard of Persecution

The Court confirmed that persecution is an ordinary English word and whether conduct amounts to persecution is a question of fact. Citing Kagema v SSHD, the Court noted that while a single beating might not amount to persecution, repeated ill-treatment or particularly vicious treatment would do so.

Implications

This case reinforces important principles in asylum law: (1) past persecution is highly relevant evidence of future risk; (2) tribunals must adequately explain their reasoning when departing from evidence of past persecution; (3) the degree and nature of anticipated ill-treatment must be carefully assessed; (4) the correct burden of proof requires consideration of whether there is a real risk of persecution, not whether release is reasonably likely.

Verdict: Appeal allowed with costs. The Immigration Appeal Tribunal’s decision dismissing the asylum appeal was set aside due to inadequate reasoning and failure to properly consider the appellant’s past persecution when assessing future risk.

Source: Demirkaya v Secretary of State for the Home Department [1999] EWCA Civ 1654