Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03707/2015

THE IMMIGRATION ACTS

Heard at Manchester
Determination Promulgated
On 28th July, 2016
On 9th August 2016

Before

Upper Tribunal Judge Chalkley

Between

J K
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Schwenk of Counsel, instructed by Wimbledon, Solicitors
For the Respondent: Mr McVitie, a Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a citizen of Sri Lanka who was born on [ ] 1976. On 20th January, 2015 the Secretary of State made a decision to remove the appellant as an illegal entrant and the appellant appealed that decision to the First-tier Tribunal. His appeal was heard by First-tier Tribunal Judge Mulvenna sitting in Manchester on 1st July, 2015.

2. The appellant's claim was that some eighteen years previously, in 1997, he was questioned by Sri Lankan soldiers and believed that he was about to be arrested to prevent him joining the LTTE. He went to Colombo where he suffered abuse because of his ethnicity. He returned home after six months, but finding no improvements, he went back to Colombo. He claims that he was arrested in 1998, detained for two days and ill-treated and released on payment of a bribe. Two months later, with the assistance of an agent, he left Sri Lanka.

3. The appellant entered the United Kingdom on 18th October, 1998 and claimed asylum on 29th November, 1998. His claim was initially refused on 28th June, 2000, but he claims not to have received a notice of the decision. He claimed asylum again on 13th August, 2013. Since having entered the United Kingdom the appellant was married and has a wife and two children both of whom were born in the United Kingdom.

4. The judge found the appellant to be wholly lacking credibility. He claims that he was unaware of the Secretary of State's first decision in 2000. He notified his then solicitors in 1999 of a change of address and awaited notification as to the outcome of his claim. He claims to have waited two or three years only to discover that his then solicitors had closed down. He asserted that he was unable to make any contact with the Home Office because he had no reference number. The judge did not believe the appellant's account. He thought it was simply lacking in credibility that he would wait two or three years before making enquiries as to the process of his claim were he to be genuine. He noted that the appellant's uncle had made a successful asylum appeal and thought it defied belief that the appellant should not wish to secure his status and show an active concern as to his progress. He also thought it lacked credibility that the appellant believed that he was prevented from making enquiries to the Home Office because he had no reference number.

5. The judge noted that the appellant was encountered by the police on 29th May, 2005 arising from a suspected fraudulent use of a bank card. No charges were brought, but the appellant was bailed with a reporting condition having been served with notices as to his immigration status. He simply failed to report and made no attempt at all to regularise his position.

6. The appellant met his wife in April, 2010. She had entered the United Kingdom on 24th August, 2008 and claimed asylum on 27th August. She was arrested on 2nd September, 2008 and charged with seeking leave to remain in the United Kingdom by deception and failing to produce an immigration document at an asylum interview. She was convicted on 7th November, 2008 and sentenced to twelve months' imprisonment for deception. She served six months of that sentence and a deportation order was made.

7. The appellant and his wife were married on 3rd June, 2010 and had two children, one born on 20th December, 2010 and one on 27th February, 2013. Notwithstanding these developments and his relationship with a partner who had experience with asylum procedures, the judge noted that the appellant did not seek to regularise his status until he claimed asylum for the second time on 13th August, 2013. The judge found that the appellant's behaviour throughout his stay in the United Kingdom had been a deliberate and sustained attempt to remain without reasonable belief that he had the right to do so. He found that such behaviour was designed and was likely to mislead the immigration authorities.

8. The judge went on to consider the credibility of the appellant's account, however,
it was not until after he had made the majority of his credibility findings that the judge considered medical evidence relied upon by the appellant. At paragraph 47 the judge examined the expert's report from Dr A Izquierdo-Martin. He said:-

"I accept his credentials and acknowledge his expert opinions on matters which are at the heart of this appeal. I observe, however, that his opinions are predicated on an acceptance of the truth of the appellant's claim. I have, for the reasons given above, found that there is no merit in the appeal. I find that the expert report does not assist the appellant's case."

9. The appellant challenged the judge's decision raising five discrete issues. Permission to appeal was granted in respect of one of them, namely the assertion that the judge had made a fundamental error of law in reaching her credibility findings first and then considering her medical report detailing the scarring. It was asserted that the author of the report did not simply accept the appellant's account as being true, but also examined the scars and came to conclusions as to whether they were highly consistent with the manner in which they were inflicted and the position of the scars including considerations as to whether or not they were self-inflicted injuries or caused by a third party. The judge had erred in law by stating that the report did not assist the appellant's case.

10. At the hearing before me Mr Schwenk wished to raise a preliminary issue. He reminded me that permission was granted on limited grounds, but there was no evidence that the administrative staff of the Tribunal had sent out the proper notices.

11. Under Rule 34(5) notice should have been given of the right to make an application to the Upper Tribunal for permission to appeal and the time within which and the method by which such application must be made. Mr Schwenk relied on Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304 (IAC). He suggested that the grounds of appeal made reference to paragraph 276ADE(vi) of the Immigration Rules and in the fourth ground on which permission to appeal was refused, it was asserted that the appellant satisfied the requirements of paragraph 276ADE(vi) by virtue of the fact that he had been out of the country for nearly seventeen years and none of his family members resided there anymore to give him support and he had no property to live in or employment to support himself and his wife and two children. Having heard Mr Schwenk's submission I decided that I would not hear any submission from Mr McVitie on this point.

12. I invited Mr Schwenk to explain to me where, in the appellant's statement, he had indicated that there would be significant obstacles to his integration in Sri Lanka. Mr Schwenk told me that the appellant had no relatives left in Sri Lanka. His mother and siblings are now in a refugee camp in India. It would be difficult for him to live in Sri Lanka after having been in the United Kingdom for so long. Mr Schwenk suggested to me that if the appellant had been in the United Kingdom for twenty years he would satisfy the requirements of the Immigration Rules. I pointed out to Mr Schwenk that nowhere in the appellant's statement did he raise anything which suggested that there would be significant obstacles to the appellant's integration into Sri Lanka. He confirmed that his client spoke Tamil and was aged in his late 30s. There was no reason for him to need family support. I told Mr Schwenk that I was not satisfied that there was any properly arguable error of law identified in the fourth challenge raised in the grounds and would not be granting permission to argue this point.

13. He reminded me that permission was granted in respect of the judge's failure to consider the medical evidence until after making findings on credibility. He criticised the judge for not referring to the medical report as a medical report but simply referring to it as being an expert report. I pointed out to Mr Schwenk that medical reports are expert reports. He suggested that the judge had erred because he believed that the author's opinions were predicated on an acceptance of the truth of the appellant's claim. Mr Schwenk suggested that the judge had not considered the medical report carefully because the author of the report does not make his opinions on an acceptance of the truth of the appellant's claim.

14. Responding, Mr McVitie suggested that the judge had not erred. The author of the report very clearly has accepted the truth of the appellant's account and based his report on it. He says:-

"Scars 1, 2 and 3 - [the appellant] said that these scars were caused after being burnt with hot cigarette butts during his detention in 1998. The appearance of these scars and their distribution and pattern is highly consistent with intentional injuries caused with a hot round object such as a cigarette butt as described by the claimant. Dermatological conditions such as abscess could result in similar scars, but would lack the regular narrow zone in the periphery, corresponding to the inflammatory zone appearing around the necrotic tissue in the acute phase, in particular, at a deep burn; also their appearance is homogenous with similar size and widespread pattern. An accidental injury is possible but less likely as the duration of exposure with the source of injury necessary to produce this type of round homogenous deep burns is significantly longer than the reflex withdrawal time needed to remove the affected part of the body after, for example, accidental brushing against a hot surface, unless the mobility of the affected part of the body is impaired as it would be expected with an intentional injury. The only accidental injury which could be confused with a cigarette burn is a burn from molten metal/oil such as from welding or cooking; [the appellant] denies any such event; furthermore the appearance of the scars is homogenous with nearly identical features and on different anatomical areas (arms, legs); which makes an accidental cause less likely" [my emphasis].

Mr McVitie also drew my attention to what the author of the report had said in relation to the second scar. Here, the doctor refers to what the appellant had actually told him and said that the appearance of the scar and the distribution on the wrist is consistent with the mechanism of injuries described by the claimant of tight ligatures around the wrist. Mr McVitie suggested, therefore, that the judge had not erred; the author's report was written on the basis that the appellant had given a truthful account, but in any event the doctor had given the scarrings the lower Istanbul Protocol categorisation of highly consistent and consistent. In respect of the first three scars the judge cannot rule out the fact that self-infliction of injuries by proxy is a possible cause.

15. Mr Schwenk suggested that if the judge had properly considered the medical report and accepted the appellant's case at its highest, then the appellant would fall within two risk categories. The first is that he might be perceived to be a threat to Sri Lanka as someone with a significant role in Tamil opposition and secondly because his uncle was a significant figure in the LTTE. I reserved my determination.

16. Any expert report presented in evidence before a judge deserves very careful examination and this is no less true with a medical report.

17. The judge starts making findings in relation to the appellant's account in his determination before considering the medical report. That amounts to a clear error of law. Medical reports have to be considered in the round with all the other evidence placed before the judge, not after the judge has made clear findings of fact, which is what happened in this determination.

18. For all these reasons I have concluded that the First-tier Tribunal Judge did materially err in law and consequently his determination is set aside.

19. Given the difficulties and consequential resulting delays in arranging a further hearing in Manchester before me, I have concluded that it is in the interests of justice and will avoid unnecessary delay if the appeal is remitted to the First Tier Tribunal. I therefore remit this appeal to the First Tier Tribunal for hearing afresh before a judge other than Judge Mulvenna.

Notice of Decision

The appeal is remitted to the First Tier Tribunal to be heard de novo by a judge other than First Tier Tribunal Judge Mulvenna.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

The First Tier Tribunal the appellant is granted anonymity. I have not been asked to interfere with that direction, so that it stands. No report of these proceedings shall directly or indirectly identify him or any member of his 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.

Richard Chalkley
Upper Tribunal Judge Chalkley

TO THE RESPONDENT
FEE AWARD

No fee is payable or paid and there can be no fee award.

Richard Chalkley
Upper Tribunal Judge Chalkley