Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01113/2015

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision & Reasons Promulgated
On 9th December 2016
On 5th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

L S
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Becket Bedford (Counsel)
For the Respondent: Mr K Norton (Senior HOPO)

DECISION AND REASONS

1. This is an appeal against a determination of First-tier Tribunal Judge M A Hall following a hearing at Birmingham, Sheldon Court on 14th July 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a female citizen of Albania who was born on 2nd February 1979. The nature of her claim is that she was trafficked into the United Kingdom on 1st November 2012. The Respondent did not accept that the Appellant had been kidnapped in 2012, a second time after an alleged kidnapping in 2008, and the Respondent did not find that the account given by the Appellant was credible, and noted that the Appellant had failed to claim asylum at the earliest possible opportunity and could demonstrate no good reason for delay, such that her claim to being kidnapped and trafficked was not accepted (see paragraphs 27 to 38 of the determination).
The Judge's Decision
3. The judge observed how it was noted in the refusal letter that the Appellant had been offered a National Referral Mechanism (NRM) process but had refused the referral which the Respondent believed damaged her credibility (see paragraph 29). It was also noted that the Appellant did not claim asylum until a year after her escape (paragraph 46). Nevertheless, the judge observed that it was important that he viewed the Appellant's account of events "in the context of conditions in Albania" (paragraph 72). Particularised attention was given to the applicable asylum law provisions herein, especially to paragraph 339L of the Immigration Rules (see paragraph 73). In addition, the medical report was also referred to (see paragraphs 75 to 76). The judge accepted that the Appellant had suffered mental health problems in Albania and had depression for which she was prescribed some "tablets which seemed to help me and calm me down" (paragraph 79). However, the judge noted that this depression "followed the death of the Appellant's father in a road traffic accident in 2001. I also accept the Appellant's evidence that she felt depressed because she and her husband were unable to conceive a child" (paragraph 79). Also taken into account was the medical report from the Mental Health Centre of Puke Hospital in Albania, and this was a translated medical report which was issued on 15th December 2014 at the Appellant's request, and it confirmed the Appellant was admitted to hospital on 2nd May 2008, and discharged on 28th July 2008 (paragraph 80). However, the judge went on to say that, "there is no mention in the medical report of the ill-treatment claimed by the Appellant. I find that had such ill-treatment occurred, this would have been mentioned in the report" (paragraph 81).
4. The judge went on to dismiss the appeal.
5. The Grounds of Appeal are summarised into three sections. First, that the judge took into account information that was not in the evidence, and in particular a statement dated 15th April 2015, which had not been adopted into evidence. Secondly, that the Appellant's mental health condition was misconceived because although the judge received the medical health report from the Centre of Puke Hospital he "does not accept that the report supports the Appellant's account of kidnap and rape". Third, that the consideration of the trafficking claim was misconceived because the requisite anxious scrutiny was not applied and a very selective consideration of the Appellant's claim to have been trafficked in 2008 and again in 2012 was undertaken.
6. On 21st September 2016, permission to appeal was granted.
The Hearing
7. At the hearing before me on 9th December 2016, the Appellant was represented by Mr Bedford, of Counsel, and the Respondent was represented by Mr Norton, a Senior Home Office Presenting Officer. Mr Bedford helpfully handed in a detailed and skilfully prepared skeleton argument, together with a typed out clearer copy of the Puke Centre medical report, which appeared at pages D6 to D7 of the Home Office bundle, for the consideration of this Tribunal. Also handed up was the Grand Chamber decision of the European Court in the case of RC v Sweden (Application No. 41827/07). In essence Mr Bedford made the following submissions.
8. First, if one looks at the Puke Centre medical report the reference to "social background" shows the condition of the Appellant as one where the "patient has not been able to feed herself, for twelve weeks and she has been kept on serum glucose 500 ml, vitamin B1, vitamin B6, and vitamin C". It is also stated that during the twelfth week of her stay in the hospital the Appellant "has shown signs of improvement, has started to talk a little with nurses and feed herself". This, explained Mr Bedford, demonstrates the extent of her acute and severe mental health condition which could only have been induced as the result of having undergone a very traumatic experience. Indeed, if one then looks at the heading "Diagnosis" it is stated that,
"She was unable to walk, talk or co-operate with the specialist; despite our attempts to communicate with her at the beginning she was not co-operating and showed deep signs of panic, symptoms of abnormal bloating, great sweating throughout her body and cardiac worries ...".
All of this could not have been the result of a depression arising either due to the death of her father in 2001 or the inability of herself and her husband to conceive a child. It must have been on account of the physical ill-treatment, rape, and the abduction she suffered.
9. Second, if one looked at the core provision of international asylum law as set out at paragraph 339L of the Immigration Rules, this is to the effect that, "where aspects of the person's statements are supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met" (see paragraph 73 of the determination). The reference to the conditions that have to be met, in circumstances where there is no documentary or other evidence, is a person's genuine effort to substantiate his or her asylum claim, or a person's statements which are found to be coherent and plausible, or a person who has attempted to establish their claim "at the earliest possible time", or a case where "the general credibility of the person has been established".
10. Mr Bedford, in an ingenious argument, submitted that the context of this legal provision was that where "documentary or other evidence" exists, then it is unnecessary to have to show by way of evidence any of these matters. Put another way, the absence of any of these matters (referred to as "conditions") should not militate against the person who has been able to produce "documentary or other evidence".
11. Third, what this then means is that, where a decision maker is faced with such a situation, it is improper, as a judicial exercise, for that decision maker to choose between various different accounts, when the evidence that is produced in the form of "documentary or other evidence" is such that it points to the likelihood of the Appellant having undergone precisely that kind of an experience that she is maintaining occurred in the circumstances of her case when she was in Albania. On the lower standard, therefore, the Appellant should have succeeded.
12. For his part, Mr Norton submitted that the judge had written a very careful determination. From paragraphs 70 to 74 there is a proper analysis of how the judge comes to his findings and conclusions, and he does not overlook paragraph 339L which he sets out in full. From paragraph 79 to 81 he refers to the very medical report which appears at D6 to D7 and gives it detailed attention.
13. The judge correctly found that the major mental health issue in 2008 had occurred, and had the judge failed to so recognise this mental health issue, he could have been criticised for overlooking a material issue of fact, but he did not overlook it. There is recognition of the severe incident that has occurred. Importantly, however, this severe incident is not the rape that the Appellant alleges.
14. There is nothing in the report which refers to physical mistreatment. There are physical symptoms that the report draws attention to but no reference to physical ill-treatment which must mean that the symptoms that are referred to could have arisen in any number of other ways.
15. The question before the judge was purely one of the credibility of the Appellant. The judge decided that the Appellant was not credible for the reasons that he gave.
16. In reply, Mr Bedford submitted that the judge was not entitled to decide what caused the mental health breakdown once he had credible evidence of her mental condition. The Appellant's case was that she had been raped in 2012 and brought to the UK. The main question was whether this claim was capable of belief. To determine that question, one needs to look only at paragraph 339L which explains how refugee law is to be interpreted and applied. This shows that there is no need to seek out an account that is coherent and plausible in circumstances where a claim is "supported by documentary or other evidence" as was the case here. If the medical report from Puke City Mental Health Centre referred to a condition whereby the Appellant "was unable to walk, talk or co-operate with the specialist", then this would not have been on account of the Appellant having acquired a depression because of her father's death several years earlier or the inability of herself and her husband to conceive a child. This condition was much more likely to arise as a result of the rape in 2012.
No Error of Law
17. I am satisfied that the making of the decision by the judge did not involve the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows.
18. Mr Bedford has argued that paragraph 339L of the Immigration Rules avoids the need to look for a coherent or plausible account on the part of the Appellant where that account can be substantiated through "documentary or other evidence". His ultimate submission has been whether what the Appellant alleges is capable of belief. The judge found that it was not capable of belief on the basis of the medical report because "there is no mention in the medical report of the ill-treatment claimed by the Appellant" (paragraph 81). This was a conclusion that the judge was entitled to reach.
19. It would be altogether otherwise if the medical report actually did refer to the condition of being "unable to walk, talk or co-operate with the specialist" having been induced on account of a version of ill-treatment given by the Appellant, which account was consistent with her being unable to walk, talk or co-operate, namely, an account that referred to her abduction, rape, and ill-treatment. The medical report makes no such reference.
20. It is in these circumstances a rather large leap to say that, where there are a number of accounts, that the one that the judge should have settled upon is the account given by the Appellant.
21. This only follows if, as paragraph 339L of the Immigration Rules makes clear, aspects of the person's statements are supported by "documentary or other evidence". The medical evidence did not support an allegation of rape or torture. Second, and in any event, the reading of paragraph 339L is rather simplistic if it is put in the terms that it is by Mr Bedford.
22. A complete reading of paragraph 339L suggests that in circumstances where there is no "documentary or other evidence" which can be put forward as confirmation of the account, then "all of the following conditions" are to be met. There are then five conditions that are set out. These include the Appellant having made a claim "at the earliest possible time", as the Appellant having established "general credibility". In both these respects, the Appellant was found to be wanting.
23. For example, the Appellant delayed for over a year before she made a claim. Furthermore, the Appellant was offered the National Referral Mechanism process and she refused the referral, the natural consequence of which was that the Respondent found this to be damaging to her credibility. The judge was entitled to take that into account.
24. In short, there were a number of other issues that directly went to damaging this Appellant's credibility, and all of this in the context where the one piece of medical evidence, namely, the report from Puke Medical Health Centre, was silent on the issue of how the Appellant came to find herself in the condition that she did.
Notice of Decision
25. There is no material error of law in the original judge's decision. The determination shall stand.
26. An anonymity direction is made.

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 Juss 4th January 2017