Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00038/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 November 2016
On 18 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

ss
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms B E Jones, Counsel, instructed by Tamil Welfare Association (Romford Road)
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant in this case is a female citizen of Sri Lanka who was born on 23 January 1981. The appellant appealed against the decision of the respondent, dated 9 February 2015 to refuse the appellant's application for asylum, humanitarian protection and/or protection against abuses amounting to a breach of the European Convention on Human Rights. In a decision promulgated on 22 September 2016 Judge of the First-tier Tribunal O'Malley dismissed the appellant's appeal on all grounds.
2. The appellant appealed with permission on the grounds:
(1) Ground 1: that the judge misdirected herself in making an error in procedural unfairness;
(2) Ground 2: that the judge made material errors of fact;
(3) Ground 3: that the judge erred in her approach to the medical evidence;
(4) Ground 4: that the judge's credibility assessment was infected by the errors already identified.
3. The appeal came before me. Ms Jones relied on her grounds for permission to appeal to the Upper Tribunal and reiterated her submissions in relation to the judge's findings on Dr Abdulkareem's report that, that Dr Abdulkareem's findings were not tested as Dr Abdulkareem was not available to the Tribunal to provide live evidence. Ms Jones indicated that if Dr Abdulkareem had been required to give evidence legal aid would have had to have been obtained and an adjournment sought. However, she reiterated that no indication was given at the hearing that the judge wished to hear oral evidence from the expert.
4. The judge had also found that it weighed against the appellant (at [39] of the decision) that the family members who secured her release had not given evidence on this. Again, Ms Jones confirmed that this was not raised by the judge at the hearing and Ms Jones made the point that even if it had been this was an issue that may not have been relied on by the appellant as if such evidence had been provided it may have been seen as self-serving.
5. In relation to ground 2 Ms Jones accepted the point that it was unlikely that the points in themselves raised in the second ground disclosed an error of fact capable of amounting to material errors of law characterised in R (Iran) v SSHD [2005] EWCA Civ 982. However, she submitted that this was more relevant in relation to ground 3 when it was relied on that the judge had misdirected herself in her approach to the medical evidence. Ms Jones pointed out that the judge accepted repeatedly, at [23], [27] and [53] that the appellant's account was plausible and consistent with the objective evidence (see also [50]), yet the judge went on to find that the appellant was not credible.
6. The judge criticised the appellant for not providing evidence for seeking medical treatment for her mental health in the UK. However, it was submitted that this was addressed in oral evidence (as set out in the grounds for permission to appeal) and this was not specifically disputed by Mr Avery.
7. In relation to the rejection by the judge of the medical evidence Ms Jones submitted that in the Rule 24 response from the respondent it was pointed out that in the Reasons for Refusal Letter inconsistencies were identified between the evidence that the appellant provided to Dr Abdulkareem and that provided the asylum interview. Reliance was placed on the case of HE (DRC) [2004] UKIAT 00321. However, as Ms Jones pointed out, the skeleton argument submitted to the First-tier Tribunal sought to address the respondent's concerns and relied on further case law in relation to the approach to medico-legal reports including JL (medical reports-credibility) China [2013] UKUT 00145 (IAC) and AM, R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 521.
8. In addition the appellant's representatives had submitted a further document from the Medical Foundation, namely a letter from the Head of Doctors at the Foundation, Dr Juliet Cohen, which addressed in some considerable detail the respondent's criticism of Dr Abdulkareem's report made in the Reasons for Refusal Letter. It was submitted that the judge did not engage with this document at all in her decision and reasons. Particularly relevant, it was submitted, was Dr Cohen's indication that the doctor's views were formed:
"not solely by the history related to them but by their observation throughout the examination, the responses made to specific clinical questions and their objective findings on examination of mental state. Dr Abdulkareem explains the links between the features now identified and the torture history described at paragraph 46 of her report. No other sufficiently traumatic experience that could cause PTSD was identified - and PTSD requires an exceptionally traumatic experience as a cause, the 'ordinary experiences of an asylum seeker' do not constitute this."
It was submitted by Ms Jones that the judge had failed to give any reasons for rejecting this evidence, if indeed that was what she did, or for rejecting the appellant's submissions in relation to Dr Abdulkareem's report.
9. The respondent in the Rule 24 response relied on the fact that the Reasons for Refusal Letter had identified inconsistencies between the evidence provided to Dr Abdulkareem and that provided in her asylum interview and again relied on the case of HE (DRC) [2004] in respect of the claimed cause of the appellant's PTSD. It was submitted that the judge's findings appear to accept that position and that the judge could not be satisfied that the information provided to Dr Abdulkareem resulted in a reliably accurate assessment.
10. Mr Avery for his part submitted that there was no procedural fairness and that Ms Jones in her grounds misrepresented the judge's consideration of Dr Abdulkareem's evidence. It was submitted that, contrary to the grounds, it was not the case that the judge placed "little weight" on Dr Abdulkareem's report because of his non-attendance. Rather, somewhat differently, the judge put "less weight on her conclusions as they are not tested and they are based on the reports of the appellant" ([22] of the judge's Decision and Reasons).
11. Mr Avery submitted that it would have been helpful if the judge had set out what particular aspects of the report had been accepted but he did not accept that there was procedural unfairness. It was also Mr Avery's submission that the judge made no error in taking into account the failure of the family members to give evidence and again he was of the view that this was not a procedural error.
12. In relation to the hospital evidence of the appellant's miscarriage it was submitted that the judge gave reasons for why she rejected the appellant's evidence and if documents are unreliable it is open to the judge to make adverse credibility findings.
13. Mr Avery indicated that he had no submissions in relation to the judge's failure to deal at all with the letter of Dr Cohen in relation to Dr Abdulkareem's report.
Error of Law
14. As I indicated at the hearing I am satisfied that there were material errors of law in the judge's approach. The judge's approach to Dr Abdulkareem's report in particular was concerning:
At paragraph [22] of the decision the judge took into account that Dr Abdulkareem worked for the Medical Foundation and that her specialist training would be relevant to her conclusions, but attaches 'less weight' to the report because Dr Abdulkareem did not give "live evidence" to the Tribunal nor have her conclusions tested.
At paragraph [23] the judge found the appellant's history plausible but "on the basis of Dr Abdulkareem's report alone" was not satisfied that the history was credible;
At paragraph [28] the judge did not accept Dr Abdulkareem's conclusions in relation to the appellant suffering from PTSD and was not satisfied that the appellant had suffered the claimed intrusive flashbacks, anxiety around uniformed policemen or aversion to sexual intercourse, which she detailed in her appointments with Dr Abdulkareem;
At paragraph [38] of the decision the judge at the final sentence (in relation to Dr Abdulkareem's report) stated that "I have concluded that it is not appropriate to place reliance on that report".
15. The judge's approach is inconsistent as it is not clear why on the one hand she attached less weight to the report from the Medical Foundation and yet on the other hand placed no reliance on the report at [38].
16. Even if that inconsistency was not fatal the judge failed to give the appellant an opportunity to address the judge's concerns that the evidence of Dr Abdulkareem had not been tested. Equally, at [39] the judge found against the appellant due to a lack of evidence from her family about her release from detention but had not raised this with the appellant and gave no adequate reasons as to the background information including, as recorded in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319, that release from detention and escape from Sri Lanka is routinely achieved by way of bribery.
17. In relation to Dr Abdulkareem's report the judge's error in approach in my findings is compounded by her failure to give any reasons in relation to why, if that was the case, she rejected the explanation provided in some considerable detail by Dr Cohen of the Medical Foundation in relation to the respondent's concerns in the refusal letter about the conclusions reached by Dr Abdulkareem (including that Dr Abdulkareem would not have relied solely on the report of the appellant).
18. In the circumstances I am satisfied that there is a lack of adequate reasons in this decision such as to amount to a material error of law. I am further satisfied that there was procedural unfairness in the judge's failure to allow the appellant an opportunity to address points which had a material effect on the outcome of the case. Applying the authorities including of MM (Unfairness E & R) Sudan [2014] UKUT 105 (IAC) and AM (fair hearing) Sudan [2015] UKUT 00656 (IAC) I am satisfied that the failure of the judge to put matters to the appellant relied upon by her in assessing the credibility of the appellant and in placing less weight on the expert report given the lack of oral evidence, without again giving the appellant an opportunity to address this amounts to a material error of law.
Notice of Decision
19. The decision of the First-tier Tribunal involved the making of an error of law. I set aside the decision for the First-tier Tribunal. Under Section 12(2)(b)(i) of the Tribunals, courts and enforcement Act 2007 and Practice Statement 7.2, the nature and extent of judicial fact finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal to be heard, de novo, by any judge other than Judge O'Malley. No findings are preserved.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson