Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02282/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
On 20th October 2016

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

U V
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Jaisri, Counsel, instructed by Kanaga Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, a citizen of Sir Lanka, brings a challenge to the decision of First-tier Tribunal (FtT) Judge Heynes sent on 31 May 2016 dismissing her appeal. The grounds of appeal raised seven points; it being submitted the judge erred by:
(i) failing to take proper account of the medical report by Dr Martin;
(ii) wrongly treating as adverse to her account that she was able to leave Sir Lanka by air using her own passport;
(iii) giving incorrect reasons for placing no reliance on the Attorney's letter;
(iv) wrongly dismissing the psychiatric evidence of Dr Dhumad;
(v) failing to put any of the aforementioned concerns to the claimant at the hearing at which there was no HOPO;
(vi) failing to apply the Court of Appeal analysis in MP and NT (Sri Lanka) [2014] EWCA Civ 829;
(vii) failing to make any reference to the materials the appellant had produced to support her claim to be a writer.
2. I am grateful to both representatives for their submissions. It is unnecessary for me to address all seven grounds because I am persuaded that the first four are made out. The judge's treatment of Mr Martin's report rested on the mistaken understanding that it had simply asserted (as in the case of the medical report at issue in MN (Sri Lanka) [2014] EWCA Civ 1601) an inconsistency between the appellant's scars and the claimed ill-treatment at the hands of the Sri Lankan authorities. In fact Mr Martin's report included findings that certain scars were 'typical' which under the Istanbul Protocol hierarchy of causes is the strongest level of correlation and not a level of equal possibility described by the judge at [41].
3. If the judge intended by reference to "timescale" to say that the doctor had seen the scars too long after the claimed date of infliction to make proper causal findings, that needed to be made clear; it was not; and in any event the evidence at least left open that it was inflicted within the period of two years. The judge's observation at [31] (see also [41] and [44]) that the doctor does not explain whether the scars could have been inflicted several years earlier may have been a basis for attaching less weight to the report, but did not address the doctor's finding that some scars were "typical" of the appellant's account and the appellant's account was of ill-treatment within the two year period.
4. As regards the judge's treatment of the psychiatrist's report, it is wholly deficient. It is stated in [42] that this report "...is based largely upon the appellant's account of her symptoms which cannot be corroborated". This is not a fair description of a report that was based as well on prior consideration by the psychiatrist of the asylum interview and SEF, a medical letter from GP Dr Kumar and included a finding that the appellant was suffering from PTSD "directly related to the incident of torture and rape in Sri Lanka." The judge's reference to corroboration is also unfortunate because this report was essentially itself corroborative of the report from Dr Martin.
5. The judge's treatment of the letter from the Attorney is also problematic. He states at [26] - [28]:
"26. The Respondent had obtained an adjournment earlier in these proceedings in order to undertake a check on this attorney. These enquiries gave rise to an email from the British High Commission stating that the attorney had been contacted and had confirmed that he had written the letter.
27. I place little evidential weight on this letter. The attorney does not appear to have taken any action personally to substantiate these claims. His knowledge derives solely from the complaint of the Appellant's husband and the information that the junior attorney gave him.
28. I do not in any event find it reliable. I do not find it credible that the Appellant's husband would make repeated visits to this attorney who does not appear to have been instructed to do, or to have done, anything to assist the Appellant."
6. I do not consider that the judge was entitled to discard the letter simply because the Attorney's inquires were stated as being carried out by a junior Attorney. The letter made clear that the junior Attorney was acting under the Attorney's directions and by signing the letter the Attorney was attesting to the validity of the junior Attorney's inquiries. The evidence of the Attorney in question - Mr Anton Punathanayagma - was accepted in GJ & Others [2003] UKUT 00319 as "useful and reliable" in relation to criminal processes.
7. The above errors suffice to establish to my satisfaction that the FtT Judge materially erred in law and that his decision is to be set aside. I see no basis for preserving any of the judge's findings of fact and in such circumstances a remittal to the First-tier is the proper course. My decision is not in any way to be taken as expressing a view one way or the other on the credibility of the appellant's account.
8. For the above reasons:
The FtT Judge materially erred in law.
9. The case is remitted to be heard by a FtT Judge other than Judge Heynes. The relisting should be in the London area.

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 him or any member of their 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

Dr H H Storey 20th October 2016
Judge of the Upper Tribunal