Case No: C5/07/1288
Neutral Citation Number: [2007] EWCA Civ 1294
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 19th October

Before:

LORD JUSTICE MAURICE KAY
and
LORD JUSTICE TUCKEY
- - - - - - - - - - - - - - - - - - - - -

Between:

	FT (TURKEY)
	Appellant	
	- and -		
	
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr D Bazini (instructed by Messrs Irving & Co) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Maurice Kay:

1.	This is a renewed application for permission to appeal, permission having been refused on the papers by Toulson LJ.  The applicant arrived in this country in January 2004 with her husband.  At that time, he made a claim for asylum, naming his wife as his dependent.  His claim ultimately failed, whereupon she made a claim of her own that was refused by the Secretary of State.  Her first appeal to the Asylum and Immigration Tribunal was dismissed in June 2005.  The basis of her claim was that her family was associated by the authorities with PKK activity.  I omit the details of that.  According to her, the denouement was that in November 2003, gendarmes had arrested her husband outside the house on suspicion of helping the PKK.  Thereafter, they raided and searched the house and, in the course of doing so, they beat the applicant before sexually assaulting and raping her.  Some time after that they left Turkey.  She did not reveal the rape to her husband.  At the first determination, the immigration judge accepted her account.  However, he dismissed her appeal, saying in paragraph 4.15:

“I conclude by finding that, although reprehensible, the appellant’s treatment in Turkey is not consistent with persecution for a convention reason.  It is consistent with the random and habitual ill‑treatment of people in accordance with the objective evidence, but that it was neither sustained nor related to any perception of the appellant as someone who was of interest to them for political purposes.”

2.	The applicant sought reconsideration and, on 19 July 2005, Senior Immigration Gleeson granted reconsideration, observing that the immigration judge:

“appears to have overlooked the perceived political opinion that she had found, proved at paragraph 4.11, as the cause of the attack on the appellant.”

Paragraph 4.11 had read:

“On her own terms, there is no reason for me not to accept her evidence that she was ill‑treated on account of her husband’s activity to the extent that it was proved and that she was raped.”

3.	The next procedural stage was a hearing on 19 October 2006, at which a panel of the AIT expressed satisfaction that the immigration judge had made a material error of law:

“in failing to make a finding upon a material matter, namely whether the appellant was ill‑treated and raped on account of any political activity on the part of her husband.”

The panel added, in ordering a second stage reconsideration:

“Unless further evidence demonstrates that the appellant’s account of having been ill‑treated and raped on 20 November 2003 shows that her account is a fabrication, the immigration judge’s finding that the appellant was ill‑treated and raped on that date should stand.”

4.	The second stage reconsideration took place on 22 January 2007.  There was some discussion at the outset about its scope.  Having heard submissions, the immigration judge resolved that, as there was no further evidence regarding the incident on 20 November 2003, the applicant should not be asked further about her alleged ill‑treatment and rape on that occasion, but she could be asked about other matters relating to her claim.  What happened was that the immigration judge, on the second reconsideration, rejected her claim essentially on credibility grounds.  He faithfully accepted that she had been raped on the occasion that she had described.  However, he does not appear, by his ruling, to have permitted any further investigation of that to ascertain what had been at the forefront of the mind of the panel when ordering reconsideration -- namely, whether she had been raped on account of any political activity on the part of her husband.  It has always been her case that that was so.  In her SEF statement she had said:

“Soldiers also came to our home.  I was on my own.  They asked me, where are the supplements for the PKK guerrillas?  I was beaten up, sworn at, slapped, sexually assaulted and raped.”

Then in her interview she answered question 72 in this way:

“They pushed me on the stairs and started searching the house.  They swear at me and told me that we were guerrillas and were hiding things to do with guerrillas.”

5.	The immigration judge, on second reconsideration, appears not to have made a specific finding on the very issue that was the reason for a second reconsideration.  He made a number of findings at variance with those of the immigration judge at the original hearing, resulting in his making adverse credibility findings; but he did not say in terms whether he accepted or rejected what she had said in her questionnaire and in interview, and he did not in terms advert to the reason why the gendarmes had raped the applicant in November 2003.  In my judgment, that is arguably an erroneous approach, both in the failure specifically to make findings as to why the applicant was raped in November 2003 and, arguably, in making findings on other matters not directly related to the rape, which were outside the reason for the second reconsideration and at variance with findings on the same issues made by the original immigration judge.  For these reasons, I would grant permission to appeal.  It will no doubt be said on behalf of the Secretary of State that the immigration judge, on second reconsideration, in paragraph 25 stated:

“Even if the circumstances of the appellant’s rape in 2003 were as she states and that those responsible were soldiers who came to her home when her husband was not there, there is no reason to regard the incident as not being an isolated one, albeit of a horrific nature.”

6.	It seems to me that that is arguably an insufficient analysis of the material, given the whole basis for the ordered second reconsideration.

Lord Justice Tuckey: 

7.	I agree.

Order:   Application allowed