Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00726/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 10 March 2017
On 15 March 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

r n
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Neale instructed by Migrant Legal Project (Cardiff)
For the Respondent: Mrs H Aboni, Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
2. The appellant is a citizen of Uganda who was born on 22 December 1974. She claimed to have most recently arrived in the UK on 8 March 2014. Thereafter, she claimed asylum. The basis of her claim was (and is) that she is a lesbian and would be at risk on return to Uganda.
3. On 14 December 2014, the Secretary of State refused the appellant’s claim for asylum, humanitarian protection and under Art 8 of the ECHR.
The Appeal to the First-tier Tribunal
4. The appellant appealed to the First-tier Tribunal in January 2015. Her appeal was initially dismissed but the Upper Tribunal subsequently remitted the appeal to the First-tier Tribunal for a de novo rehearing.
5. The remitted appeal was heard by Judge O’Brien on 18 October 2016. In a determination sent on 28 November 2016, Judge O’Brien dismissed the appellant’s appeal on all grounds. He made an adverse credibility finding. He did not accept that the appellant was a lesbian and rejected her evidence, including that she had been arrested and detained in Uganda because of her sexual orientation.
The Appeal to the Upper Tribunal
6. The appellant sought permission to appeal to the Upper Tribunal challenging the judge’s adverse credibility finding.
7. Permission to appeal was granted by the First-tier Tribunal (Judge Landes) on 15 December 2016.
8. On 4 January 2017, the Secretary of State filed a rule 24 response seeking to uphold the judge’s adverse credibility finding and his decision.
The Submissions
9. Mr Neale, who represented the appellant, relied upon the three grounds set out in the application for permission.
10. First, Mr Neale submitted that the judge had accepted, on the basis of the expert report of Dr Alison Battersby, that the appellant suffered from PTSD. In relying upon inconsistencies in the appellant’s evidence on matters not related to the trauma she claimed to have experienced, the judge had failed to take into account Dr Battersby’s report (at A16-A17) and an academic article (Bogner, Brewin and Herlihy, “Refugees’ Experiences of Home Office Interviews: A Qualitative Study on the Disclosure of Sensitive Personal Information” (2009) Journal of Ethnic and Migrant Studies 1) both appended to his skeleton argument that demonstrated that a generalised impairment in declarative memory was a symptom of PTSD and that accurate recall of information was not limited to the traumatic events itself.
11. Further, Mr Neale submitted that the judge had been wrong to take into account the appellant’s demeanour, in the sense that she was with one exception able to give her evidence without showing distress, because, as another article appended to the skeleton argument demonstrated, dissociative states were commonly experienced by PTSD sufferers and they will not always display visible symptoms of distress (Bogner, Herlihy and Brewin, “Impact of Sexual Violence on Disclosure During Home Office Interviews” (2007) British Journal of Psychiatry 75). Mr Neale also relied upon the IAT decision in Tilki [2002] UKIAT 06015 which cautioned against taking into account the demeanour of a witness who suffered from mental health problems.
12. Secondly, Mr Neale submitted that the judge’s reasons for down-playing the expert opinion of Dr Battersby at para 56 of his determination were unsustainable. Dr Battersby had, Mr Neale submitted, carefully assessed the appellant during the course of a long interview and so it was not accurate to say that her views were based “in no small part” upon what the appellant said and felt. Further, the judge’s suggestion that the appellant may have been able to feign her symptoms failed to take into account Dr Battersby’s careful assessment and conclusion that the appellant was not feigning her symptoms. Finally, in postulating as an alternative that the appellant might well have suffered PTSD as a result of “other traumatic experiences”, the judge’s theory failed properly to engage with Dr Battersby’s view that the appellant’s symptoms were “highly consistent” with her claimed experiences.
13. In support of his first two points Mr Neale invited me to consider an additional academic article supporting his submissions that the judge had wrongly made lay assumptions about the effects of PTSD and invited me to consider them de bene esse. He submitted that the paper was admissible under Ladd v Marshall principles and showed a mistake of fact amounting to an error of law by the judge.
14. Thirdly Mr Neale submitted that there was a procedural error. He indicated that one of the issues before the judge was whether the appellant had made a visit visa application to visit a person who was said to be her husband. She said she had made no such application as she did not have a husband. The material before the judge, in the form of an application, appeared to identify such an application but it was denied by the appellant. The judge had undertaken to obtain a copy of a determination (which was said to exist) in relation to an appeal in respect of that application. However, Mr Neale submitted that the judge had failed to make any mention of this in his determination. It was an important piece of evidence, relating to the appellant’s credibility, if no such appeal could be found in the appellant’s name. That would be consistent with her claim that she had never made the application relied upon by the Secretary of State. It would have been different if, for example, the reason the determination could not have been found was simply because there was no ability to access appeal decisions dating back to 2003. Having undertaken to find the determination after the hearing, the judge’s failure to give an explanation gave rise to a procedural irregularity.
15. Mrs Aboni, on behalf of the Secretary of State, submitted that the judge had appropriately assessed the expert evidence and had been entitled to take into account the inconsistencies in the evidence and the appellant’s demeanour.
16. Mrs Aboni submitted that there was a difference as to the effect of PTSD on the recall of “traumatic” and “non-traumatic” events. The judge had accepted that the appellant suffered from PTSD and had proceeded on the basis that she was a vulnerable witness. He was entitled to take into account that she appeared only to suffer distress when cross-examined about her claimed arrest in 2012. There was nothing in the expert report or otherwise to support the contention that the appellant would have difficulty in giving evidence on other events.
17. In addition, Mrs Aboni submitted that the judge had found the appellant not to be credible in relation to her claim not to have made a visit visa application in respect of her husband, whom she claimed did not exist. The judge was entitled to take this into account and the fact that the judge had not indicated why he had been unable to obtain the determination relating to the appellant’s appeal in respect of that visit visa application did not amount to an error of law.
18. As regards the new material relied on by Mr Neale, Mrs Aboni submitted that that material had little bearing on whether the judge erred in law in assessing the evidence before him.
Discussion
19. I turn first to consider the two points raised by Mr Neale in the first ground.
20. In paras 50-53, the judge identified a number of matters that led him to doubt the reliability of the appellant’s evidence as follows:
“50. In the instant case, there were a number of matters which gave the Tribunal grave doubts as to the Appellant’s reliability.
51. First, the Respondent adduced its computer file record of two visa applications by the Appellant: one she accepted she made in 2006 and one she denied ever making in October 2002. She was most insistent that she had never made the application in October 2002, the record of which indicated that that applicant intended to visit her husband, Hannington Nyeko. She pointed out that her mother’s name had been misspelt, albeit that she accepted that her father’s name was correct, as was her own details. However, her father’s name was misspelt in her 2006 application. More importantly, the Appellant accepts in her witness statement that she made an application in October 2002; the only point she took was that it was to visit her cousin’s husband not hers.
52. Second, the Appellant said in her screening interview that she last saw her son on 1 August 2010 when she was stopped from seeing him by the father because of her sexuality. Indeed, it would appear that she told Dr Battersby ‘when the father of her child found out that she was a lesbian he told her that she would never see her son again.’ Today, her evidence was utterly inconsistent and when challenged that the father did not know about her sexuality until 2012, she claimed that he had stopped her seeing her son in August 2010 because she would not begin a relationship with him. She showed no signed of distress when answering questions about this issue.
53. Third, she claimed today that custody of her son was resolved a month after his birth and that his time was shared thereafter between her parents’ house and the father’s (until he kept their son permanently in August 2010). In her statement, she says that she looked after him until he was a toddler.”
21. In assessing that evidence, at para 54 the judge referred to the fact these matters were barely connected to the appellant’s trauma said to have been caused by PTSD and, in relation to the evidence concerning her son, her evidence was given with no apparent distress or difficulty.
22. At para 46, the judge referred to Dr Battersby’s diagnosis of the appellant suffering from PTSD and then at para 47, dealt with Dr Battersby’s evidence concerning the effect, if any, upon the appellant’s evidence that she suffered from PTSD as follows.
“47. She advises that the Appellant could reasonably be expected to have recall problems and/or be reluctant to disclose details of the traumatic events which caused the PTSD. These are identified in the report as principally being the mistreatment reported by the Appellant at the hands of the Police. The Home Office API similarly warns that some LBG asylum seekers might struggle to talk openly about their sexual orientation and find it difficult to disclose material information in a coherent and detailed manner. I was careful, therefore, to ensure that cross-examination on these areas went no further than necessary to dispose fairly of this appeal and was conducted with appropriate sensitivity. As it was, the Appellant only appeared distressed at one point in cross-examination: when she was asked about the events which led to her arrest in 2012.”
23. Then at para 48 the judge, as he had at the end of para 47, referred again to the appellant’s lack of distress:
“Otherwise, the Appellant appeared calm, albeit occasionally hesitant, and not always when dealing with matters obviously associated with her diagnosis.”
24. Then at para 49 the judge made the following observation:
“49. Notwithstanding the potential for victims of sexual violence and other torture not always to give reliable and consistent evidence about their traumatic experiences, it is unreasonable to expect this Tribunal to ignore every inconstancy, hesitation and gap in recall. Moreover, if the Tribunal is not satisfied that it can rely on the Appellant’s evidence, the appeal must necessarily fail.”
25. I accept Mr Neale’s submissions that the judge’s reasoning embodies two lay assumptions concerning the effects of PTSD which are not necessarily supported by the report of Dr Battersby and the academic articles which were before the judge appended to Mr Neale’s skeleton argument.
26. First, I accept that Dr Battersby in her expert report at A16-A17 does not restrict the effect of PTSD to an impairment of declarative memory simply in relation to traumatic events. It is clear from the quoted study at the bottom of page A16 and top of A17 that, in those suffering from PTSD, there was demonstrated a “generalised impairment” relative to non-PTSD subjects which resulted in an effect, inter alia, upon memory function. That position is also supported by the 2009 article by Bogner, Brewin and Herlihy in the Journal of Ethnic and Migration Studies which was consistent with PTSD affecting autobiographical memories being not necessarily limited to the traumatic events themselves. There was certainly no evidence before Judge O’Brien that only recalling the traumatic events was likely to be affected by PTSD.
27. Secondly, as regards the appellant’s demeanour, the IAT in Tilki counselled caution in taking into account demeanour. At para 8 the Tribunal said this:
“Commonsense suggest that there may possibly be some cases where demeanour has some bearing as a factor upon which some weight may be given. It cannot be wholly rejected in principle but plainly very considerable caution needs to be given to the assessment of demeanour.”
28. In that case, in circumstances reminiscent of those in the present case, the judge had taken into account that the appellant had given his account in a “coherent, clear thinking, detailed manner” despite mental health problems. The Tribunal allowed the appellant’s appeal on the following basis set out at para 7:
“The Secretary of State’s representative at the hearing before us was not able to identify any evidence which could sustain the doubts raised that a person, with the appellant’s mental health problems would not be able to give evidence at a hearing in a coherent and clear fashion. Further, as is clear from reading paragraph 26, the Adjudicator placed significant weight upon the issue of demeanour and what he described as his own ‘observations’.”
29. In this appeal, likewise, the judge placed significant weight upon the appellant’s demeanour, in that she was, with the one exception, able to give her evidence without distress. Although Dr Battersby in her report notes that the appellant became “tearful and distressed” when talking about her detention, the fact that she did not at the hearing did not, as the judge seems to believe, suggest that she has not suffered the trauma which she claimed. The 2007 article by Bogner, Herlihy and Brewin in the British Journal of Psychiatry annexed to Mr Neale’s skeleton argument and before the judge, identifies the “dissociative phenomena” associated with those with PTSD in recounting their experiences. At page 75, the authors identify “dissociative reactions” activated during “anxiety-provoking event[s]” such as Home Office interviews but which would, no doubt, equally apply to a Tribunal hearing (see also pages 78-79 of the paper).
30. In my judgment, in counting against the appellant the discrepancies in her evidence and her “calm” demeanour, the judge failed properly to grapple with this evidence which might (though I would not go so far as to say must) have led the judge to take a different view in his assessment of the liability of the appellant’s evidence and her credibility.
31. I have reached this conclusion without the need to consider the fresh evidence which Mr Neale sought to rely on if necessary. Suffice it to say, that material is in line with the evidence before the judge.
32. For these reasons, therefore, ground 1 is made out. Although Mrs Aboni sought to argue that the judge had given a number of reasons for not accepting the appellant’s evidence, his failure properly to consider the expert and academic evidence in assessing the appellant’s credibility was, in my judgment, material to his adverse finding.
33. That, in itself, leads me to conclude that the decision cannot stand and must be set aside.
34. I can, therefore, briefly deal with grounds 2 and 3 which, at least to this extent, are also made out by the appellant.
35. First, in discounting Dr Battersby’s opinions, the judge failed to give proper weight to Dr Battersby’s evidence that she was satisfied that the appellant was not feigning her symptoms and further that Dr Battersby’s expert opinion was not simply based upon what the appellant had told her. Dr Battersby conducted a long interview and concluded, on the basis of a proper and objective analysis, that the symptoms were displayed by the appellant and that her expert opinion was not simply based on what the appellant told her. To the extent that this led the judge to doubt the reliability of Dr Battersby’s evidence the judge fell into error giving inadequate reasons and consideration to Dr Battersby’s report. I would add, although it is unnecessary to decide this, that given Dr Battersby’s clear and reasoned opinion, it was pure speculation whether the appellant suffered PTSD as a result of “other traumatic experiences”.
36. Finally, as regards ground 3, the judge was no doubt seeking to assist the parties by indicating that he would attempt to obtain, if it existed, the 2003 appeal determination in respect of the appellant’s claimed application for a visa to visit her husband. As I indicated at the hearing, it would seem very unlikely that a 2003 determination could be easily, or at all, accessed in 2016. Had the judge not offered to obtain the determination, Mr Neale would have no point to raise in challenge to the judge’s decision. The evidence before the judge of the appellant’s claimed application was there to be assessed in the light of the appellant’s own evidence. I do, however, see some merit in Mr Neale’s argument that, given the judge undertook to obtain the determination, and if (as is assumed to be the case) the judge could not obtain it, the reason for that might be relevant to the appellant’s credibility. There is a scintilla of an argument that the judge’s failure to explain why he could not obtain the determination amounted to a procedural irregularity. However, the sustainability of the judge’s determination does not turn on this point and I leave it unanswered as it is unnecessary to reach a conclusion on the procedural irregularity point.

Decision
37. For the reasons given above, principally in relation to ground 1 (but also in relation to ground 2) the First-tier Tribunal’s decision to dismiss the appellant’s appeal involved the making of a material error of law. That decision is, therefore, set aside.
38. Both representatives accepted that if the appellant succeeded in establishing a material error of law, the proper disposal of the appeal was to remit it again to the First-tier Tribunal for a de novo rehearing.
39. It is unfortunate that this will be the third time that he appellant’s appeal has been considered in the First-tier Tribunal. However, I agree that this is proper course for the disposal of the appeal. Given the nature and extent of fact finding required, and having regard to para 7.2 of the Senior President’s Practice Statement, I remit the appeal to the First-tier Tribunal and direct a de novo rehearing before a judge other than Judge O’Brien or Judge Page.

Signed

A Grubb
Judge of the Upper Tribunal

Date