Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/00876/2014
AA/00877/2014
AA/00878/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 December 2015
On 20 January 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

a s
d s
d S
(ANONYMITY DIRECTIONs made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr P Lewis Counsel, instructed by Theva Solicitors
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. These three linked appeals by the Appellants are against the decision of First-tier Tribunal Judge Perry (the judge), promulgated on 26 February 2015. The appeals to the judge were in turn against the Respondent's decisions, dated 24 January 2014, refusing to vary leave to remain in the United Kingdom and to issue directions under section 47 of the Immigration, Asylum and Nationality Act 2006.
2. The first Appellant is the mother of the second and third Appellants, who are both minors. All three are nationals of Sri Lanka. The first Appellant had made a claim for international protection. The second and third Appellants are and always have been dependent upon her claim.

The hearing before the judge
3. The judge refused to grant an adjournment to the Appellants. The application was based upon the production of relevant evidence by the Presenting Officer on the morning of the hearing in respect of the first Appellant's husband, a husband whom she had not seen for some years and, on her case, she did not know was residing in the United Kingdom. The new evidence provided by the Presenting Officer indicated that he was in fact in this country, and had been for some time. The judge considered that an adjournment was not required in order for the Appellants to respond to this new evidence.
4. The judge then went on to consider the merits of the claim for international protection. He concluded that the first Appellant was an untruthful witness in respect of core elements of her claim to have been detained and tortured by the Sri Lankan authorities before coming to the United Kingdom. He rejected medical evidence, in particular on the basis that the first Appellant had not sought medical examination in respect of possible sexually transmitted diseases following her claimed rape in detention. As a result of the adverse credibility findings the judge proceeded to dismiss the appeal on all grounds. The Appellants sought permission to appeal and permission was granted on all grounds by Deputy Upper Tribunal Judge Chamberlain on 16 July 2015. The Respondent duly provided a Rule 24 Notice dated 21 August 2015.

The Hearing before me
5. Prior to the hearing before me, Mr Lewis and Mr Clarke had a discussion between themselves regarding the alleged errors of law in the judge's decision. At the outset of the hearing itself, Mr Clarke very candidly indicated that he was conceding that the judge had erred in his approach to the medical evidence, in particular that he had not properly considered the medical evidence "in the round". In other words, the credibility of the first Appellant had been assessed, in effect, independently of the medical evidence: that medical evidence had then been considered in the light of the negative credibility findings already made.

Decision on error of law
6. Mr Clarke was quite right to have made the concession he did. It is abundantly clear to me that at numerous points in his decision the judge had effectively considered the large amount of medical evidence from, on the face of it, perfectly suitable sources, as mere add-ons rather than an integral part of the evidence in the case. It was clear that credibility was a core issue in the appeal and well-established case law tells us that medical evidence must be assessed together with all other relevant evidence before reaching overall conclusions. Unfortunately, this is not what the judge proceeded to do when deciding the first Appellant's appeal. Specific examples of his erroneous approach can be found at paragraphs 83, 84, 85 and perhaps most strikingly at paragraph 91 of his decision.
7. Paragraph 83 includes a clear conclusion that the Appellant was incredible. This precedes any consideration of the relevant expert medical evidence before him. Paragraph 84 begins with the statement that having regard to the negative credibility finding in the preceding paragraph, an assessment of medical reports was then to be conducted under the Tanveer Ahmed principles. At paragraph 91, the judge restates his rejection of the first Appellant's credibility and then (and only then) goes on to "approach the medical evidence from the perspective that the narrative provided by the appellant to the doctors is not true." Put in blunt terms, the cart has repeatedly been put before the horse.
8. It is quite clear that the error in approach to the medical evidence went to the issue of credibility, and given that credibility was a core aspect of the appeal, the error was material.
9. I have also considered the challenge to the failure to adjourn. I have real concerns about the judge's decision in respect of his refusal to grant the adjournment, and although it is not strictly necessary given my conclusions on the first error, I do nonetheless find that he also erred in respect of this matter. He appears to have attached significant weight to the fact that the appeals had in fact been adjourned on three previous occasions. However, none of those related to any fault or inaction by the first Appellant, and the judge seems not to have taken any account of the fact that there was no explanation from the Presenting Officer as to why the significant evidence relating to the first Appellant's husband had not been adduced sooner, as it should have been. Simply giving the first Appellant's counsel time to consider the information on the day of the hearing was in my view wholly insufficient and resulted in unfairness. I accept that the first Appellant was significantly taken aback by the revelation of this evidence, and that it is likely that that would have had some impact on her emotionally during the day. In any event, the Appellants and those representing her required proper time to be able to digest and to respond to the new evidence and giving a couple of hours or so on the day of the hearing was just not good enough in the circumstances.
10. I therefore conclude that the judge also materially erred in law in respect of his refusal to grant the adjournment.
Disposal
11. Although Mr Clarke appeared to indicate that this matter could remain in the Upper Tribunal and that certain adverse credibility findings should be preserved, this is clearly one of those cases where remittal to the First-tier Tribunal is the only proper outcome having regard to paragraph 7 of the Practice Statement and my powers under section 12 of the Tribunals, Courts and Enforcement Act 2007. The appeals will be remitted to the First-tier Tribunal to be heard afresh with no preserved findings of fact from the judge's decision. I issue directions for the re-hearing of these remitted appeals, below. Further, on request from Mr Lewis, these appeals shall be heard at the Taylor House hearing centre and not at Hatton Cross. I base this on the fact that the first Appellant is privately paying and that she will be represented at the remitted hearing on an effectively pro bono basis. Moving the appeals from Hatton Cross to the Taylor House will assist in reducing costs for all involved.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision of the First-tier Tribunal.

I remit the case to the First-tier Tribunal.

Directions to the parties

1. The linked appeals shall be reheard afresh, with no preserved findings of fact;

2. Further evidence may be adduced by either party, in accordance with standard directions issued in due course by the First-tier Tribunal.

Directions to Administration

1. These appeals shall remain linked;

2. The remitted appeals shall not be heard be First-tier Tribunal Judge Perry;

3. The appeals shall be reheard at the Taylor House hearing centre on a date to be fixed by that centre;

4. A Tamil interpreter is required at the remitted hearing;

5. There is a three hour time estimate for the remitted hearing.

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

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

Signed Date: 18 January 2016

Deputy Upper Tribunal Judge Norton-Taylor