Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01678/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
On: 26 July 2016
Decision & Reasons Promulgated
On: 17 August 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

J P D
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Khan, instructed by Lawrence Lupin Solicitors
For the Respondent: Mr McVeety, Senior Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against a decision of the First-tier Tribunal (Judge Heynes), promulgated on 25 September 2015, brought with the permission of Designated Judge Peart; Judge Heynes having dismissed the appellant's appeal - brought on protection and human rights grounds - against a decision of the Secretary of State dated 27 January 2015 to remove the appellant from the United Kingdom

2. The appellant claimed before the First-tier Tribunal that there is a real risk of him of being persecuted should he be removed to Angola, the country of which he is a citizen. Broadly speaking (as identified in paragraphs 7-11 of its decision) the appellant claimed before the FtT that:

(i) In March 2011 he had volunteered to put up posters for the Motivemento Da Revoloucas (MRA) calling for free speech and an end to dictatorship. Whilst doing so, he was beaten and stabbed by a policeman, losing consciousness;
(ii) On 22 November 2014 he attended a peaceful demonstration. He was arrested and taken to a prison outside Luanda. He was kept in appalling conditions;
(iii) On 13 December 2014 he and two other prisoners were asked to collect some water from a nearby river. One of the three guards knew a prisoner (not the appellant) and distracted the other guards so that the appellant and his fellow inmates could escape;
(iv) The appellant telephoned a friend who informed him that his parents, who had fled the country, had left something for him. The appellant was also advised to leave the country. He found $1600 in the family house as well as documents from the police telling him that his parents would be killed if he did not hand himself in. Thereafter he travelled to the United Kingdom using an agent.

First-tier Tribunal's decision

3. The First-tier Tribunal found the appellant to be untruthful in the evidence he gave and, as a consequence, rejected his assertion to be at risk upon return.

4. Two aspects of the appellant's account found prominence in the First-tier Tribunal's reasoning; (i) the assertion by the appellant that he did not know he was coming to the United Kingdom prior to his arrival here and (ii) the circumstances of the appellant's escape from prison.

5. In relation to the latter of these matters the FtT found as follows:

"37. I reject as incredible the appellant's account of his escape. The expert and the background evidence give explicit accounts of the appalling treatment of prisoners, particularly in respect of those arrested at demonstrations. I find it wholly incredible that a guard would distract his colleagues to allow three prisoners to escape, not least because of the consequences which it is reasonable to show would befall them upon their return to prison without the prisoners. ?

39. During cross-examination, the appellant was unable to give a coherent account of events immediately after his alleged escape. At his interview, the appellant stated that when I escaped, he called his friend who caught the appellant's parents who told him that they had run away. At the hearing, the appellant said that his friend already knew that his parents had left. The appellant claimed that the account he had given at interview was incorrect and was attributable to his difficulty with English, then (having been reminded that there was an interpreter at the substantive interview) claims to have been traumatised. I formed the strong impression that the appellant was simply unable to hold his account together."

Discussion on error of law

6. The appellant submits that the First-tier Tribunal erred in its approach to, and consideration of, the expert evidence before it - the appellant having produced reports from two experts in support of his claim to be at risk in Angola.

7. The first, a medical report, was authored by Dr Juliet Cohen and dated 10 October 2015. Within that report the doctor, who is undisputedly an expert in the relevant field, gives careful consideration to the large number of scars that appear on the appellant's body. Of particular significance, asserts Ms Khan, are those scars which Dr Cohen concludes are highly consistent with the evidence given by the appellant. Two such scars are said to be highly consistent with the blow from a gun, seven of with "whipping injuries", and one with a bayonet wound.

8. There were numerous other scars on the appellant's body which Dr Cohen concludes to be typical or diagnostic of the cause attributed to them by the appellant. Dr Cohen also considered scar grouping and found one such group to be diagnostic of whipping injuries and a second group of scars to be diagnostic of sharp trauma assault wounds.

9. At paragraph 56 of her report Dr Cohen finds:

"I note that at paragraph 62 of the decision letter it is asserted his physical injuries could be caused by every day injuries that could have been caused in any number of ways. This is a clinical judgement that it is not apparent that Quezon is qualified to make. On clinical examination he has a high number of physical lesions reaching the highest level of consistency, i.e. they are diagnostic of torture."

10. Under the heading "Medical report" the First-tier Tribunal said as follows of Dr Cohen's evidence:

"24. Dr. Cohen concluded that when all of the lesions on the appellant's face are considered as a group "I consider that from what is known of his lifestyle and experiences, the chance of all 10 being due to a variety of accidental injuries and falls it is highly unlikely" ?.. "Overall, I consider this group of lesions? are typical of repeated injuries."

25. With no disrespect to Dr. Cohen's experience I have some concerns about this conclusion. It is not clear to me why an accident could not result in a number of injuries.

26. Some scars were found to be diagnostic of high consistent with being whipped by a cable.

27. Whilst scars on the upper arm could be due to accidental causes, but similar scars on the appellants backed led Dr. Cohen to find, when taking all of the scars as a group, that they are diagnostic of assault wounds.

28. It may well be appropriate to consider scars as a group but Dr. Cohen could not explain the basis upon which she has taken them as a group, given that scars are difficult if not impossible to age."

11. The second of the reports produced by the appellant was authored by a Dr Schubert, and is summarised by the First-tier Tribunal in the following terms:

"19. The first section of the report echoes the background material in describing the poor human rights record of the Government of Angola and the repression of demonstrators.

20. The second section of the report states, in essence, that the appellant's account of events and hobbies treatment hands of the authorities is consistent with the circumstances that prevail in Angola.

21. I mean no disrespect to Dr Schubert in saying that his report adds little, if anything to the appellant's case. He is undoubtedly an authority and his answer the questions put to him by the appellants instructing solicitors. However, those questions are answered by the 120+ pages of background evidence in the appellant's bundle which does not need to be studied in any depth to arrive at the conclusion that the account given by the appellant is capable of happening in Angola. Through no fault of Dr Schubert time and (presumably public) money has been wasted by the commissioning of this unnecessary report."

12. I need do more for the purposes of this decision than set out the following passages from Dr Schubert's report:

"[the appellant's] descriptions of places (including Viana prison), the uniforms, equipment, and the methods of the police, are accurate and appear plausible?

Overall, I find the appellant's account of abuse? consistent with my knowledge of how political demonstrators are treated by the Angolan authorities. ?

?an escape from Viana prison to Catete ? is plausible"

13. The other pertinent passages in the First-tier Tribunal's decision, relating to the relevance of the expert evidence read:

"30. Notwithstanding my concerns as to the basis upon which some findings have been made in the medical report, I accept that the report raises the possibility that the appellant has a number of scars were not the result of accidental injury. That finding does not, of itself, point to the appellant being mistreated in the circumstances or for the reasons he has claimed.

31. The fact that his account of his treatment in detention is consistent with the background evidence is a factor to be taken into account but it does not inexorably lead to the conclusion that the appellant was imprisoned. As Dr Schubert pointed out in his report, the treatment of a prisoner in an Angolan jail has found its way onto YouTube. It would be surprising if conditions in Angolan prisons were not known there. ...

38. The medical evidence certainly points to the appellant having a number of scars some of which may have been inflicted deliberately but that is not sufficient to overcome the lack of credibility surrounding the appellant's account of his escape the fact that his claim to have been detained falls within his claimed escape."

14. At the hearing before the Upper Tribunal Mr McVeety properly accepted that the First-tier Tribunal had erred in its consideration of, and approach to, the expert evidence of Dr Schubert and Dr Cohen; such evidence deserving of substantial probative, although not determinative, weight when credibility was being considered in the round.

15. The First-tier Tribunal's approach was to start with the conclusion that the account given by the appellant of his escape was implausible and then, in this context, consider the expert evidence; finding it not to be of sufficient weight to "overcome" the aforementioned lack of credibility. This, as was accepted by Mr McVeety, is not a legally permissible approach. The First-tier Tribunal was required to approach the evidence in the round when assessing the credibility of the assertions made by the appellant, it did not do so.

16. The decision of the First-tier Tribunal is therefore flawed by legal error capable of affecting the outcome of the appeal. None of the findings of fact can be preserved. The appeal has to be reconsidered de novo and both parties submitted that the most appropriate forum for this was in the First-tier Tribunal. Had there been an interpreter available at today's hearing I would nevertheless have gone on to remake the decision on appeal for myself. However, there was no interpreter available and, consequently, I accede to the parties wishes and remit this appeal to the First-tier Tribunal to be considered afresh on all issues.

Decision

The decision of the First-tier Tribunal contains an error of law capable of affecting the outcome of the appeal and is therefore set aside.

The appeal is remitted to the First-tier Tribunal to be considered afresh. No findings of fact are to stand

Signed:

Upper Tribunal Judge O'Connor