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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> KG (Turkey) v Secretary of State for the Home Department [2022] EWCA Civ 1578 (01 December 2022) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2022/1578.html Cite as: [2022] EWCA Civ 1578 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge McWilliam
Appeal No PA/01485/2019
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ANDREWS
and
LORD JUSTICE NUGEE
____________________
KG (TURKEY) |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
Nicholas Chapman (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 24 November 2022
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Crown Copyright ©
Lady Justice Andrews:
INTRODUCTION
BACKGROUND
"It is noted that you have only raised your claim for protection after you were served with a deportation order and your appeal failed. It is considered that you have failed to raise your protection claims at the earliest opportunity. You could have raised your concerns regarding return at any time following the Coup in Turkey in 2016 and you have not done so. You could and should have raised your concerns at the appeal hearing in August 2018 yet you failed to do so. Indeed, you only raised grounds for protection in October 2018, shortly after your appeal rights were exhausted on 28 September 2018 and you faced deportation. It is considered that the timing of your claim for protection throws considerable doubt upon your credibility."
"it cannot be understood from the decision what the judge made of the delay and whether [she] applied Section 8 of the 2004 Act when assessing credibility."
SECTION 8 OF THE 2004 ACT
"Claimant's credibility
(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies….
(5) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being notified of an immigration decision, unless the claim relies wholly on matters arising after the notification.
(6) This section also applies to failure by the claimant to make an asylum claim or human rights claim before being arrested under an immigration provision, unless –
(a) he had no reasonable opportunity to make the claim before the arrest, or
(b) the claim relies wholly on matters arising after the arrest."
"no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility."
"plainly has its dangers, first, if it is read as a direction as to how fact-finding should be conducted, which in my judgment it is not, and in any event, in distorting the fact-finding exercise by an undue concentration on minutiae, which may arise under the section at the expense of, and as a distraction from, an overall assessment. Decision makers should guard against that. A global assessment of credibility is required."
DID THE FTT JUDGE MAKE A MATERIAL ERROR OF LAW?
The correct approach to s.8
The FTT decision
"the thrust of refusal is that this is a late claim for asylum, there is limited evidence to support what he claims, and he does not face persecution upon his return because he is at best low profile."
She then addressed the background to "the timing of the asylum claim" in paragraph 6, by setting out the chronology of the criminal conviction, the deportation decision, and the history of the human rights appeal. However she made no mention of the attempted coup in Turkey and where that fitted into the chronology.
"This is relevant in regard to the discrepancy in the 2014/2015 date of his claimed detention, but given that this is explained because it fell over the New Year holidays, I find less damage is caused to his credibility by the delay in claiming asylum."
Discussion
CONCLUSION
Lord Justice Nugee:
Lord Justice Lewison: