Tribunal decisions

The decision

IAC-HW-MP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03283/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14th November 2016
On 30th November 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

mr a
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms G Kiai, Counsel, instructed on behalf of the Appellant
For the Respondent: Ms Z Ahmad, Senior Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
1. Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify the Appellant described as A. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
2. The Appellant is a citizen of Sri Lanka who entered the UK in or about September 2009. The Appellant, appeals with permission, against the decision of the First-tier Tribunal who in a determination promulgated on 15th September 2006 dismissed his appeal on asylum and human rights grounds. Permission to appeal the decision was granted by the First-tier Tribunal on 18th October 2016.
3. The summary of the Appellant's claim is set out in the determination at paragraphs [12 to 35]. The claim also made reference to having been detained and having suffered ill-treatment at the hands of the authorities.
4. There were a number of medical reports placed before the First-tier Tribunal as set out at paragraph [10] of the determination which included psychiatric evidence, medico-legal reports relating to scarring and a psychological report. There was also a Rule 35 report. As a consequence of the contents of the reports, the Appellant did not give oral evidence before the First-tier Tribunal (see paragraph [11]), thus the Tribunal had to consider the written evidence in reaching an assessment of risk in conjunction with the submissions from the advocates.
5. The judge's findings on credibility are set out at paragraphs [58 to 70] and in summary, the judge observed that the question of the assessment of credibility was difficult when the Appellant relied upon a "detailed and careful rebuttal of the reasons for refusal letter" but equally submitted that "any inconsistencies were as a result of his condition of PTSD and depression." The judge considered the medical evidence at paragraph [60] and specifically at paragraphs [65 to 70]. In summary the judge found that "multiplicity of the medical reports" to be "unhelpful" and that the reports produced after the report of Dr Lawrence was an attempt to overcome the difficulties that his report presented for the Appellant. The judge made reference to the fact that it was "alarming that none of the other experts saw fit to make reference to the Appellant's head condition nor to his low-level functioning". At [67] the judge considered that none of the medical experts had conducted a holistic assessment nor considered his memory loss. The judge placed weight on the conclusion at page 9 of Dr Lawrence's report which the judge considered to cast doubt on the reliability of the Beck Depression Inventory and that there could be something else to cause the Appellant not to function and also placed weight on the conclusion that he was not an immediate risk of suicide (at page [10] of the report). The judge went on to consider that the Appellant had not given a credible account as to the circumstances in his country of origin and consequently found that the Appellant did not fall within any of the categories identified in the country guidance decision of GJ and Others [2013] UKUT 319.
6. The Appellant sought permission to appeal and permission was granted by the First-tier Tribunal on 18th October 2016. At the hearing before the Upper Tribunal, Ms Kiai appeared on behalf of the Appellant and Ms Ahmad on behalf of the Secretary of State. At the conclusion of Counsel's submissions relating to the assessment of the medical evidence, Ms Ahmad conceded that in relation to Ground 1, the references made by the judge were factually incorrect and that she could not argue otherwise and that this amounted to an error of law being established. She did, however, submit that if the credibility assessment was correct then any error may not be material. However, in the light of the concession that the medical evidence was not properly considered, in my judgment the credibility findings were required to have been considered alongside and in the light of the medical evidence applying the decision in Mibanga. Thus if the assessment of the medical evidence was not correct, it could not possibly be said that the credibility findings themselves were safe or reliable in the circumstances, given the requirement of "anxious scrutiny".
7. Both advocates were in agreement that the decision should be set aside and that the correct course would be for the appeal to be remitted to the First-tier Tribunal whereupon further updated medical evidence would be available.
8. In those circumstances it is not necessary for me to set out in detail the reasons for reaching the view that an error of law has been established.
9. The core error related to the judge's consideration of the medical evidence. There were a number of reports before the Tribunal including two reports dealing with scarring (Professor Lingam and Dr Martin), two reports by Consultant Psychiatrists, Dr Lawrence and Dr Dhumad and further reports in the form of a Rule 35 and a psychological assessment.
10. The judge began her assessment of the medical reports at [66] by making reference to the "multiplicity of the reports" and that they were "unhelpful" and expressly found that the reports produced after that of Dr Lawrence were an attempt to overcome the difficulties that Dr Lawrence's report presented for the Appellant.
11. In essence the judge found that every report following Dr Lawrence's report should be disregarded and gave two reasons. Firstly, none of the experts noted that the Appellant suffered from a congenital head condition nor that the Appellant functioned at a very low-level intellectually. However that was an incorrect characterisation of the reports. The Appellant's head condition was in fact not noted by Dr Lawrence but was considered by Dr Martin (see page 14 of the updated bundle). This was an important report dealing with the issue of scarring which lent support and weight to the Appellant's account that he had been subjected to ill-treatment. After going through each of the scars, the expert concluded at page 18 there was no doubt that the scars were caused by intentional injuries and that they were diagnostic of "intentionally caused injuries" that were "likely to be caused by a third party" as described by the Appellant. The judge did not appear to attach any weight to that report despite having made reference to and having identified the congenital head condition thereby accounting for some of the scars. It is right that Professor Lingam's report did not refer to the head condition but in fairness Professor Lingam did not say that the scars on the Appellant's head were as a result of any trauma.
12. As set out the judge also stated that the reports other than that of Dr Lawrence failed to address the issue of the Appellant's low-level of functioning. However that is not factually correct. The report of Dr D did consider the Appellant's functioning. As the report stated, he had been provided with the report of Dr Lawrence (paragraph 3.2) and at paragraph 7.1, 7.2 and 7.3 made reference to the Appellant's learning difficulties when setting out his personal history. Furthermore at 13.4 the doctor quoted from Dr Lawrence's report and at paragraph 16.5 made further reference to his learning difficulties since childhood that may have been aggravated by further conditions. At 17.3 he gave the conclusion that his background was highly suggestive as a learning disability. Whilst it is right that he made reference to the requirement of an IQ assessment to confirm such a diagnosis, the doctor had made references to his learning disability and difficulties by reference to his history.
13. Thus the judge did make factual errors when considering the basis of the reports as Counsel submitted and failed to attach weight to reports on this basis which were factually incorrect. At [67] the judge concluded that none of the medical reports had considered a "holistic assessment" or considered the Appellant's memory loss and failure to give evidence in the context of family history and the higher educational achievements of his family members. However the contents of the report demonstrate that both Dr Lawrence and Professor Lingam met with the Appellant at the same time (see page 9 of updated bundle and page 5 of Professor Lingam's report). Thus it could properly be seen as a "holistic report".
14. Furthermore the judge's conclusions at [67] when considering the report of Dr Lawrence does not take into account his full report and in particular whilst at page 9 he found the Appellant to be a man severely impaired in functioning and that whilst he showed symptoms of PTSD that there could be something else that was causing the Appellant not to function. However the judge stopped there when reaching a conclusion at paragraph 67 whereas the report went on to conclude that the expert had given consideration of whether the Appellant could have been simulating the symptoms but reached the conclusion that he had not for the reasons set out at page 10 of the report. The judge did not attach weight to that part of the report and thus did not consider it in its totality.
15. In the light of the submissions and the concession made by Ms Ahmad, the decision discloses a material error of law in the consideration of the medical evidence. Having found an error of law, relating to Ground 1, it is not necessary for me to reach any further conclusions on the other grounds advanced. Suffice to say that Ground 3 made reference to the risk of suicide which was considered at paragraphs [82 to 83] of the determination. Whilst the judge recorded that no oral submissions were made in this regard, the judge went on to consider the matter set out in the skeleton argument which did raise the issue. However at [83] the judge found that by reason of the lack of reliability of the medical reports (save for that of Dr Lawrence) and that as the Appellant had been in the UK since 2009 and had not made any suicide attempt, he would not be at risk on return. However that was not factually correct as there was recent evidence in the report of Dr Dhumad at paragraph 9.7 and the assessment of risk was said to be moderate. This was evidence that was later in time to that of Dr Lawrence and was thus evidence upon which such an assessment could have been made, notwithstanding the lack of oral submissions.
16. I have therefore reached the conclusion that the nature of error is such that the credibility findings cannot stand in isolation from the medical evidence and as both advocates have agreed, the nature of the error is such that the decision should be set aside with no findings preserved and that the correct course is for it to be remitted to the First-tier Tribunal for a further hearing.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law; the decision is set aside, it is remitted to the First-tier Tribunal for a further hearing.

Signed Date

Upper Tribunal Judge Reeds