Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04995/2015

THE IMMIGRATION ACT

Heard at Field House
Decision & Reasons Promulgated
On 23 August 2016
On 07 February 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE MCCLURE

Between
MTMN
(AnoNYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Saini instructed Jein Solicitors
For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Sri Lanka. Having considered all the circumstances including that such a direction was made previously, I am satisfied that it is appropriate to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Andonian promulgated on 13th July 2015, whereby the judge dismissed the Appellant's appeal against the decision of the Respondent to refuse him refugee status, humanitarian protection or relief on the grounds of Articles 2 and 3 of the ECHR.
3. By a decision taken on 8th August 2016 First-tier Tribunal Judge Grant-Hutchinson granted permission to appeal to the Upper Tribunal. Thus the matter appeared before me to determine in the first instance whether or not there was an error in law in the original determination.
4. The Grounds of Appeal assert:
(a) That the judge has in assessing the credibility of the appellant's account failed to take account of the medical evidence as an integral part thereof. As the medical evidence was capable of constituting supporting evidence it should have been considered as an integral part of the credibility assessment.
(b) That the judge has speculated in considering the facts and evidence and founded findings of fact on such speculation.
(c) That the judge during the course of the hearing appeared to be unwell and appeared to fall asleep.
5. In Mazrae 20004 EWCA Civ 1235 the Court of Appeal set out that the judge's approach to the assessment of credibility was flawed as the judge had reached adverse credibility findings assessing only the appellant's account and had thereafter gone on to find that the credibility findings made had not been undermined by the background material or the experts report, in effect considering such separately. The court indicated that the proper approach was to consider all the evidence together and make findings of fact based upon all of the evidence.
6. The point is also made in the case of Mibanga v SSHD 2005 EWCA Civ 367, although in that case it has to be noted that the injuries were particularly significant.
7. However in S v SSHD 2006 EWCA Civ 1153, the court indicated that there would only be an error of law however where there was a structural failing within the decision.
8. It is settled law that where an expert or medical evidence is a relevant factor relating to credibility the judge should deal with such evidence as integral part of the findings on credibility rather than as an add-on, which does not undermine the conclusions of fact already made.
9. As pointed out within the grounds within paragraph 13 of the decision the judge has reached a conclusion that the appellant's account is a total fabrication of events. It is thereafter that the judge begins to deal with the medical evidence in paragraphs 14 of the decision. It can be seen from paragraph 12 of the decision, where the judge examines parts of the appellant's account in which the injuries were material, that the medical report and whether there was any evidence to support the appellant's claims would have been relevant to assessing whether or not parts of the account were credible.
10. It is clear that the judge has made findings of fact without considering the evidence as a whole including the medical evidence.
11. In the present case the medical evidence was highly material in assessing whether or not the appellant's account was credible as the medical evidence gave some support to the claim of injuries and how they were caused. In the circumstances the failure to assess the medical evidence as an integral part of the credibility was an error of law.
12. With regard to the allegation that the judge had fallen asleep, it may have had more substance if it could be shown that the judge had failed to record the evidence correctly or had clearly missed parts of the evidence that were material to the outcome of the hearing. There appears to be nothing in the evidence that is indicated as lacking in the judgement made. There is no suggestion that the judge has not properly summarised the evidence and has not dealt with the various submissions made on behalf of the appellant and the respondent.
13. Whilst it may have been that the judge was listening carefully to the evidence and submissions made. He made have been seeking to concentrate upon the technicalities that were being advanced before him free from distractions within the court room. If that had been the only ground of appeal, it would have assisted if some substance was given to the allegation that the judge was asleep and had missed material parts of the hearing.
14. However given that for the reasons set out above there is an error of law, I need not say anything further with regard to this ground as the matter is to be reheard in any event. Similarly with regard to the second ground of appeal.
15. For the reasons set out there is an error of law and the decision of the judge is set aside. This matter is to be heard afresh in the First-tier Tribunal with none of the findings of fact preserved.
Notice of Decision
16. I allow the appeal by the Appellant and direct that the matter be heard afresh in the First-tier Tribunal.

Signed Date
Deputy Upper Tribunal Judge McClure