Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02710/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th February 2017
On 6th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE J G MACDONALD

Between

MS SS
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Anzani, Counsel instructed by Nag Law Solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Sri Lanka whose appeal was dismissed on all grounds by First-tier Tribunal Judge Ripley in a decision promulgated on 17th October 2016. Grounds of application were lodged and permission initially refused but granted by Upper Tribunal Judge McWilliam who considered it was arguable that the judge did not take into account the findings of the Upper Tribunal in respect of the provision of mental health services and treatment in Sri Lanka in GJ (Sri Lanka) [2013] UKUT 00319 (IAC).
2. Given the ultimate and correct concession by the Home Office that this case would have to be reheard it is not necessary to set out the lengthy grounds of application in great detail. I shall summarise them briefly.
3. The first ground was that the judge erred in her assessment of the objective evidence with reference to the availability of psychiatric care in Sri Lanka. The judge had entirely ignored the passages of GJ which emphasised that the Sri Lankan Mental Health Services did not provide appropriate care for mentally ill people.
4. The second ground was that the judge erred in making adverse credibility findings on matters not put to the Appellant and a possible discrepancy appeared to have been given significance by the judge which ignored what was said about her in the Medical Foundation report. The third ground was that the judge’s assessment of the medical evidence amounted to speculation and the fourth ground was that the judge erred in her assessment of risk upon return.
5. For the Appellant Ms Anzani indicated that if Ground 1 of the grounds was accepted then the appeal ought to be allowed outright. While Ground 2 appeared to be a small point it had a big consequence in that the judge had found against the Appellant on a credibility issue which was not justified given what was said in the Medical Foundation report about her memory.
6. The third ground was linked to Ground 1 but crucially there were no proper findings on whether the Appellant had been seriously ill-treated in Sri Lanka as she claimed. In terms of Ground 4 the judge had not dealt with the submission that the Appellant would fall into one of the categories of those who were at risk in Sri Lanka namely an individual who was or was perceived to be, a threat to the integrity of Sri Lanka as a single state.
7. For the Home Office Mr Staunton said it would be going too far to allow the appeal outright but given the lack of findings on credibility the judge’s decision could not stand and it would have to be sent back to the First-tier Tribunal.
8. I formally reserved my decision.
Conclusions
9. It seems to me that there is considerable merit in the grounds of application. As the grounds put it the judge essentially ignored what was said in GJ. As was pointed out by both parties it is not clear in the judge’s decision which parts of her account were being accepted or rejected. In paragraph 42 there is the obvious point that there is arguably no discrepancy between a period that is said to last for five months or a short period and the reasoning which allowed the judge to form that view pays little or no attention to what is said in the Medical Foundation report relating to her psychological condition. What is clear, as the Home Office acknowledged, is that the decision is not safe and cannot stand. Unfortunately it seems to me that further fact-finding is necessary and this matter will have to be heard again by the First-tier Tribunal.
10. The decision of the First-tier Tribunal is therefore set aside in its entirety. No findings of the First-tier Tribunal are to stand. Under Section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 the nature and extent of the judicial fact-finding necessary for the decision to be remade is such that it is appropriate to remit the case to the First-tier Tribunal.

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.

I remit the appeal to the First-tier Tribunal.

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 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 28 February 2017

Deputy Upper Tribunal Judge J G Macdonald