Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/05049/2015
Aa/05051/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 August 2016
On 12 October 2016

Before

UPPER TRIBUNAL JUDGE PITT

Between

jJ and GJ
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Ms S Praisoody, Counsel, instructed by Biruntha Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) I make an anonymity order. Unless the Upper Tribunal or a court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellants. This direction applies to, amongst others, all parties. Any failure to comply with this direction could lead to contempt of court proceedings. I do so in order to avoid a likelihood of serious harm arising from the contents of the protection claim.
2. This decision is a remaking of the asylum claim of the appellants. Their appeal was first heard by First-tier Tribunal Judge Monson and refused in a decision issued on 25 September 2015. The appellants challenged the decision of the First-tier Tribunal. I found an error of law as set out in my decision issued on 19 February 2016 such that the appeal had to be remade entirely save for a preserved finding that the appellant was sexually assaulted whilst still in Sri Lanka. The preserved finding is set out at paragraph 27 of my error of law decision. The error of law decision is attached as an Appendix to this decision.
3. I heard oral evidence through a Tamil interpreter from the two appellants and the maternal uncle of the first appellant, Mr T P. The appellants are husband and wife but the claim of both is dependent on the first appellant's account. For the purposes of this decision I refer to her as the appellant without including reference to the dependent claim of her husband.
4. The appellant's claim is as follows. She and her husband are from Tamil families from Jaffna in the north of Sri Lanka. Her maternal uncle, KT, was a fighter for the LTTE and when he was killed in battle in 1999 he was declared an LTTE "hero". The appellant had no involvement with political activities, however, and had no difficulties in Sri Lanka until 2012.
5. In November 2012 the appellant married her husband in Sri Lanka. She remained away from work for a period of time after the marriage by way of a honeymoon. Her husband returned to the UK on 11 December 2012 with ongoing leave as a Tier 1 migrant.
6. When the appellant returned to work she learned that a colleague had been murdered. The appellant and other colleagues were interviewed in connection with the matter. The appellant's perception was that she was of more serious interest to the authorities because of her LTTE "hero" uncle, and was interviewed at home in addition to interviews in the workplace.
7. The appellant informed her husband of the interest arising from the murder and he advised her to go to stay with a paternal uncle in Colombo. The appellant travelled there in January 2013. After arriving in Colombo she was travelling on a bus to see another relative when she encountered an old college friend, M. M had been at school and college with her and whilst they were at college she had sometimes stayed in the appellant's room. They had lost contact after their education ended. When they met on the bus in Colombo the appellant gave M her telephone number and suggested that she call her.
8. On 20 January 2013 the appellant was arrested at night from her uncle's home in Colombo. She was taken to an army camp and detained for one and a half months. During her detention she was tortured, beaten and interrogated. She was asked about M and initially denied knowing her. M was eventually brought into the room where the appellant was being questioned and the appellant was told that M was a member of the LTTE. She denied knowing that M had any involvement with the LTTE. Her mistreatment and interrogation about different people and involvement with the LTTE continued. On the fifth day of her detention she was also questioned about the murder at her work place. When the appellant denied her knowledge of M's involvement with the LTTE and her own involvement and knowledge of anything else to do with the LTTE she would be beaten and kicked and other forms of mistreatment were used. One form was putting a plastic bag containing some petrol over her head so that she was suffocated by petrol fumes. On two occasions during her detention officers came into her room drunk and she was held down and raped.
9. The appellant's uncle managed to obtain the appellant's release by paying a bribe and obtaining the intervention of an MP. On her release in March 2013, the appellant went to stay with the PA of the MP in Kandy. The family were afraid that if she returned to live with relatives she might have further difficulties. The appellant remained in Kandy for two months whilst her uncle and her husband made arrangements for her to get a visa and leave the UK. Whilst she was in Kandy she did not have difficulties and only left the home in order to seek medical treatment on 8 March 2013. The appellant managed to obtain a visa as the dependant of her husband who had leave as a Tier 1 (Post-Study Work) Migrant. She was granted the visa on 16 April 2013 and arrived in the UK on 6 May 2013.
10. After arriving in the UK the appellant and her husband looked into other ways of remaining in the UK as neither the appellant nor her husband wished to disclose her mistreatment, in particular the rapes. Eventually, five days before the expiry of her visa on 16 December 2013, the appellant claimed asylum on 11 December 2013 with her husband as her dependant.
My Findings
11. The appellant was interviewed on 26 February 2015. The interview began at 11.05 and concluded at 15.00. The appellant was asked 276 substantive questions about her asylum claim. The appellant also gave evidence before me, her cross-examination lasting in excess of two hours. I noted that the evidence that she gave at the hearing before me was highly consistent with that given before the First-tier Tribunal recorded at paragraphs 42 to 51 of the First-tier Tribunal decision. The details of both of these oral accounts were also highly consistent with that given in her asylum interview.
12. The degree of consistency across these detailed accounts indicated to me that it was likely that the appellant was a reliable witness. The appellant has been consistent as to small details of her account, for example four officers coming to arrest her on the night of 20 January 2013 at her uncle's home. She has been consistent as to the forms of mistreatment she suffered, the rapes and the nature of the questioning when she was in detention.
13. I also noted her response at question 189 of her interview where she gave an extensive extempore response to the question as to what happened whilst she was in detention. It is possible that someone could memorise an account of this detail but this appellant has given the same account twice more with no significant differences, once before the First-tier Tribunal and again before me. Before me she gave the same level of consistent detail even though this was in response to cross-examination which addressed her account in a different way to the questioning in her interview. It is not that the case that she merely repeated her account parrot-fashion, therefore, but was consistent despite giving it in a different context and order. These matters added to my view that the appellant was a credible witness.
14. The appellant remained consistent in the details of her account even when faced with a direct contradiction of what she had said in an earlier account. At the hearing before me in cross examination she was asked about the nature of the questioning she was subjected to after the murder of a colleague at her work place. The appellant volunteered that as well as being interviewed at work she was questioned twice at home by the authorities. It was put to her that this was not correct and that she had never mentioned this before across any of her accounts. The appellant remained firm that she was certain that she had mentioned the visits to her home for questioning in her asylum interview. The questioning paused whilst the legal representatives checked the asylum interview record as to whether the appellant was correct and it was conceded for the respondent that she was, as at question 228 she stated "After the murder happened, they came to the office and they questioned me and they came to my house as well and then questioned me."
15. Again, it is possible that having learned a false account so well and studied her interview record so carefully that the appellant could have remembered and been certain that she made this comment in the interview. This did not appear to me to be likely. It is a small detail. Neither of the representatives who could be expected to be well prepared for the hearing recalled this small aspect of the evidence put forward by the appellant in her asylum interview. The appellant's evidence on this point again indicated to me that she was a reliable witness.
16. The appellant also did not seek to embellish her evidence, in my judgement. She has been consistent throughout that she had no difficulties until 2012. She has been consistent that all she has done in the UK is attend Heroes Day celebrations in London and that she did so in order to pay respect to her uncle rather than out of her own political commitment. She does not seek to raise a sur place claim based on attendance at events in the UK and nor does her husband.
17. The appellant also relied on a medical report dated 26 June 2015 prepared by a Consultant Psychologist, Dr Rozmin Halari. The account given by the appellant to Dr Halari in May 2015 was highly consistent with that given by her in her substantive asylum interview and at both Tribunal hearings. In particular, at paragraphs 40 to 51 she describes her mistreatment whilst in detention. The details are extensive and entirely consistent with those she has given in other accounts, to the extent that different forms of mistreatment or particular incidents across different days of her detention are identical. She records that her concern after her detention was the bleeding and pain she continued to experience following the rapes and that it for this that she sought treatment after her detention rather than the physical mistreatment. She volunteered the same information before me.
18. Dr Halari found at paragraph 104 that the appellant's clinical presentation was consistent with the account she had given, characterising it as "typical of those found to have been raped and tortured." Dr Halari also stated at paragraph 104:
"This would be the highest level of consistency I would be able to use in an asylum claim, as there is not a certain way from a clinical picture of PTSD the specific details of the torture can be 'diagnosed'."
19. At paragraph 105 Dr Halari continued:
"The intense emotional reaction JJ had when describing the traumatic events, that is freely flowing tears and fine tremors with disassociation following this, would be difficult to feign and links symptoms to the account."
20. The appellant has presented in a similar manner when describing her mistreatment in her asylum interview, in the First-tier Tribunal and before me, remaining calm until the instant she was informed that she would be asked about her mistreatment in detention, when she became acutely distressed.
21. At paragraph 109 Dr Halari considered specifically whether the appellant was making a false claim and indicates in terms "I have not accepted her account uncritically". At paragraph 112 Dr Halari concluded "In my opinion feigning of symptoms is unlikely."
22. Dr Halari's declaration and experience and qualification set out at the end of her report indicate that she is a professional on whose opinion weight can be placed. Dr Halari's report is consistent with the guidance provided in JL (Medical reports - credibility) China [2013] UKUT 000145 (IAC) the head note stating at paragraphs 3 and 4:
"(3) The authors of such medical reports also need to understand that what is expected of them is a critical and objective analysis of the injuries and/or symptoms displayed. They need to be vigilant that ultimately whether an appellant's account of the underlying events is or is not credible and plausible is a question of legal appraisal and a matter for the tribunal judge, not the expert doctors (IY [47]; see also HH (Ethiopia) [2007] EWCA Civ 306 [17]-[18]).
(4) For their part, judges should be aware that, whilst the overall assessment of credibility is for them, medical reports may well involve assessments of the compatibility of the appellant's account with physical marks or symptoms, or mental condition: (SA (Somalia) [2006] EWCA Civ 1302). If the position were otherwise, the central tenets of the Istanbul Protocol would be misconceived, whenever there was a dispute about claimed causation of scars, and judges could not apply its guidance, contrary to what they are enjoined to do by SA (Somalia). Even where medical experts rely heavily on the account given by the person concerned, that does not mean their reports lack or lose their status as independent evidence, although it may reduce very considerably the weight that can be attached to them."
23. It was my conclusion that weight could be placed on the professional opinion of Dr Halari not just that the appellant was subjected to a sexual assault but that this occurred whilst she was in detention as a suspected LTTE sympathiser as detailed across her various accounts.
24. Further, the core of the appellant's account, that she was detained and seriously mistreated by the Sri Lankan authorities, was supported by the evidence of her husband. He confirms that he found out from the appellant that she was being questioned by the authorities in relation to a murder of a work colleague and that he advised her to travel to Colombo to stay with an uncle there. He has been consistent in his evidence across his different accounts that in January 2013, unable to contact the appellant in the usual way via Skype and or on her mobile telephone, he contacted her uncle who informed him that she had been detained. He exhorted her uncle to try to obtain her release and worked with him to obtain a visa for the appellant. The appellant had already applied for a passport following the marriage as it was intended that she would visit him in the UK at some point.
25. The appellant's husband also corroborated the appellant's evidence as to why she did not claim asylum earlier after coming to the UK. Neither of them had wanted her to reveal details of her mistreatment because of the shame it brought for them both and he looked for other ways to try to obtain further leave to remain. After they were unable to find any other way of remaining, the appellant claimed asylum. The appellant's husband also gave consistent evidence to this effect across his witness statement and oral evidence as recorded in the decision of the First-tier Tribunal at paragraphs 52 to 55 and in oral evidence and cross-examination before me.
26. The appellant relied upon another witness who provided supporting evidence for a further aspect of her claim. In her asylum interview at questions 123 to 128 she describes how her maternal uncle, TP, returned to Sri Lankan in early 2015 in order to attend the funeral of his father, the appellant's maternal grandfather. In her interview at question 123 the appellant stated that:
"When he went to Sri Lanka, army and CID went to my house and made enquiry about me and made enquiry about me with him, they ask him about me".
27. The appellant's uncle has provided his passport showing that he visited Sri Lanka at that time and has provided a statement confirming that on his return in early 2015 he was questioned about the appellant. He explained at the hearing that when the CID first went to the family home to question him he was very afraid as he thought that they were coming to question him about his own situation and had an adverse interest in him. It was only after they turned their questioning towards the appellant that he realised that it was because of an adverse interest in her.
28. The evidence of TP, in my judgement, added to the reliability of the appellant's claim and her profile as someone in whom the authorities had an adverse and ongoing interest after the end of the civil war.
29. In summary, the consistency of the appellant's evidence, the degree of detail that she provided, the corroboration provided by her husband and her uncle and the conclusions of Dr Halari indicated strongly to me that she was a credible witness and that she was detained and severely mistreated as claimed by the Sri Lankan authorities as a suspected sympathiser or supporter of the LTTE.
30. Before deciding definitively whether the appellant's claim was credible, I considered carefully the submissions made against her by the respondent.
31. In the refusal letter dated 10 March 2015, the respondent indicated that the appellant's account was not accepted as she had "substantially" changed her account from her screening interview to that given in the asylum interview. In her screening interview at question 4.2 she stated as follows:
"My life is in danger. I was arrested by the army but my uncle paid the bribe to get me out.
The army are after me because I worked in a company and a murder took place there.
The person who was murdered was a Singhalese person and because my uncle was an LTTE hero they suspect that I have something to do with this murder.
After I was released I went to Colombo and met a friend. At the time of meeting her I did not know she was a former member of the LTTE, we exchanged numbers ands she found out my address. The army arrested her and gave them all of my details and told them that I was also former member of the LTTE. If I return the army will arrest me and my life will be over."
32. It is not my view that this account is different from that provided by the appellant in her asylum interview, statements or oral evidence. It can easily be read consistently with her later more detailed accounts. The only possible objection to that being so is the use of "released" before she went to Colombo in the fourth paragraph as she has not otherwise claimed to have been detained and released at that time. I did not find this to be sufficient to allow this response to be read as a clear inconsistent statement of an arrest or detention and release prior to going to Colombo. It appeared to me to be really only a reference to the appellant being able to get away from the questioning in her home area by going to her uncle in Colombo.
33. The respondent also maintained that it was not credible that the appellant would become of such adverse interest in 2012/3 if it was partly because of her connection to her LTTE uncle who had been killed in 1999. It is not my view that this was sufficient to undermine the appellant's claim. She has always been clear that she did not know why she was of more interest than other colleagues in 2012 or even certain that she was rather than this being merely her perception. She has never maintained that the detention arose solely from her connection to her uncle but attributed it to her connection with M.
34. The respondent also maintained in the refusal letter that it was not credible that the authorities would have an adverse interest in the appellant merely because she had a friend who was an LTTE member. The respondent considered that the sophisticated intelligence systems available to the authorities, identified in the country guidance case of GJ and Others, would have shown that the appellant was not a sympathiser or supporter. One difficulty with that argument is that whether or not the authorities had sufficient information to identify that there was nothing previously identifying the appellant as being of any interest, it is possible that an encounter and exchange of a telephone number with M, someone who may have a significant profile, was sufficient to merit arrest. Further, even if the respondent's point is taken as valid, it still has to be weighed alongside the specific facts of this case and the considerable weight of the evidence of the appellant and her witnesses. It appeared to me that it was reasonable to conclude that notwithstanding the guidance on the sophistication of the intelligence systems, this appellant was detained and mistreated as claimed.
35. The respondent also raised a number of concerns about the documents relied upon by the applicant but to the effect that they were insufficiently probative and not that they actively undermined her credibility. At worst, therefore, they are neutral and not sufficient to undermine the force of the evidence as discussed above.
36. An important aspect of the respondent's case against the appellant in the refusal letter is the delay in claiming asylum after she arrived in the UK as the dependant of her husband on 6 May 2013. I have referred to Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 when considering this aspect of the appellant's claim. The respondent submits that it is not credible that the couple would have waited to claim asylum even for the reasons that they set out across their various accounts. The respondent maintained that the delay damaged the appellant's credibility.
37. Certainly, there was a delay and I assessed this in line with s.8 and the against the evidence as a whole. I come back, however, to the consistency and detail of the appellant's account and that in this specific aspect of her claim her husband has corroborated her reasons as to why the claim was not made earlier. My conclusion was that albeit this was an unusual feature of the claim, it was not sufficient to undermine it. In the context of the evidence as a whole it was credible that the shame and trauma arising from the appellant's history would lead to attempts to find a way of remaining that did not require disclosure of what had happened and to a delay in claiming.
38. Ms Isherwood also pointed out the coincidence of the appellant becoming of interest to the authorities in late 2012 because of the murder and then, by chance, meeting M again on a bus in Colombo in January 2013, those events also occurring just after she had married, obtained a passport.
39. I have given some thought to this aspect of the submissions which appeared to me to carry some force. The appellant's claim is not a straightforward one, arising, for example, from her own political activities but relies on a number of indirect features coming together, her uncle's profile, the murder of a colleague at her work place and meeting M in Colombo. It remained my view, however, that any concerns in this regard were still outweighed by the weight of the evidence in favour of the appellant.
40. The respondent's case was also that even if the appellant had been detained in 2013 as she claimed, she could not show that she would be of adverse interest if she returned now, the sophistication of their intelligence systems again being raised in this regard. That submission has less force when placed against the evidence of the appellant's uncle as to his being approached about her on his return in 2015, mentioned by her in her asylum interview and confirmed by him in his written and oral evidence. His evidence of ongoing interest and the high degree of credibility in the appellant's account also indicated to me that her oral evidence as to the authorities also contacting her mother was credible and showed an ongoing interest.
41. This is therefore not a case where the appellant relies on her profile prior to the end of the civil war and it can properly be said that this would not be sufficient for there to be further adverse interest on return now. Her mistreatment occurred after the end of the civil war. There has been ongoing interest in her since her release and departure from Sri Lanka. The appellant has a profile as a sympathiser or supporter of the LTTE that led to detention and significant abuse and ongoing interest from 2013 onwards.
42. The respondent's Country Information and Guidance document from August 2016 confirms the risk of harm for someone such as this appellant, stating at paragraph 2.33:
"However, there are reports that security personnel continued to be responsible for the detention and abuse of civilians accused of LTTE connections in 2015 and the intelligence services have continued to show detainees who have returning to Sri Lanka photographs of themselves attending Heroes' Day events and other commemorations abroad, suggesting that there is continued surveillance of diaspora events."
and at 2.38:
"Persons perceived to sympathise with the LTTE continue to be intimidated, harassed, arrested, detained and tortured. Tamil women in Northern Sri Lanka still face the risk of rape and harassment by the security forces present throughout the region."
and at 2.3.10:
"Despite the improvements made to date, there continue to be reports - albeit at much lower numbers - of abductions, torture complaints and police use of excessive force against Tamils perceived to support the LTTE."
43. For all of these reasons I found that the appellant had shown that she faced a real risk of mistreatment on return as a result of her imputed political opinion and that she is entitled to protection in line with the Refugee Convention and Article 3 ECHR.
Notice of Decision
44. The decision of the First-tier Tribunal was set aside.
45. The appeals are re-made as allowed on asylum and Article 3 ECHR grounds.

Signed Date 27 September 2016
Upper Tribunal Judge Pitt

APPENDIX

ERROR OF LAW DECISION ISSUED ON 19 FEBRUARY 2016

Heard at Field House
Decision & Reasons Promulgated
On 21 January 2016

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Before

UPPER TRIBUNAL JUDGE PITT

Between

JJ AND JJ
(ANONYMITY DIRECTION MADE)

Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Ms P Solanki, instructed by Biruntha Solicitors
For the Respondent: Ms Sreeraman, Home Office Presenting Officer

DECISION AND REASONS

1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellants. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. We do so in order to avoid a likelihood of serious harm arising from the contents of the protection claim.

2. This is an appeal against the decision promulgated on 25 September 2015 of First-tier Tribunal Judge Monson. The decision refused the protection claim of the first appellant (the appellant) and also the claim of both appellants under Article 8 of the ECHR.

3. The challenge before me was to the decision on the appellant's protection claim. In summary, the appellant maintained that she is a relative of an LTTE "hero", that she came under suspicion in Sri Lanka because of murders of people at her workplace and was subsequently detained by the Sri Lankan authorities from 20 January 2013 for one and a half months. During her detention she maintains that she was seriously mistreated including multiple rapes. Her family assisted her to leave detention and she came to join her husband (the second appellant) who was already in the UK with limited leave.

Challenge to Refusal to Adjourn

4. The first ground of challenge was that a procedural error occurred as the First-tier Tribunal Judge refused an adjournment application made on the day of the hearing. Judge Monson's comments on this matter are at [40]-[41]:
"40. At the outset of the hearing Ms Solanki on behalf of the appellant applied for an adjournment on three grounds. Firstly, her lay client would be more comfortable with a female interpreter and a female judge. Secondly, her uncle in the UK was, according to the appellant, willing to come to court to give evidence in support of her claim, but there was no statement from him in the appellant's bundle and he was not present. Thirdly, she wished to produce evidence of the medication that the appellant was currently taking in support of an alternative claim under Article 3 (mental health/suicide risk) that had been successfully pursued by the third appellant ("MP") in GJ and Others.
41. After hearing from Ms Ibe, I refused the adjournment request. In respect of ground 1, I was sympathetic but a female court had not been requested, despite there being ample opportunity to make such a request well in advance of the appeal hearing. I also obtained confirmation from Ms Ibe that she was not proposing to cross-examine the appellant on the details of what had happened to her in detention, but only to ask her a tangential question on the medical treatment which she had sought and received, with specific reference to the medical report of 8 March 2015. With respect to ground 2, the appellant had been represented by solicitors throughout, and it would have been obvious to them that the appellant's uncle in the UK was a potential witness in support of the appellant's asylum claim, as the appellant had specifically relied on her uncle's alleged experiences on return to Sri Lanka in her asylum interview. If he was willing to come to court to give the evidence attributed to him by the appellant at interview, there was no good reason why the witness statement had not been taken from him in advance of the hearing, nor as to why he was not present at court to be cross-examined on such evidence. As to the third ground, there was no need for an adjournment if the appellant could give oral evidence about the medication and treatment she was currently receiving."

1. The grounds challenging the refusal to adjourn followed the threefold application that was made on the day of the First-tier Tribunal hearing. Firstly, it was submitted that an adjournment should have been granted in order to allow for the evidence of the appellant's uncle to be given. His evidence was material as, according to the appellant, on a return visit to Sri Lanka in January 2015 he had been questioned by the authorities about her and her involvement with the LTTE in the UK. The appellant had referred to these events in her asylum interview at questions 123 to 129 and produced a copy of the uncle's passport showing a visit to Sri Lanka consistent with her evidence. The First-tier Tribunal judge was told at the hearing that the uncle was willing to attend as a witness. The failure to provide a witness statement from the uncle was stated to be the responsibility of the appellant's legal advisers not the appellant. The grounds also assert at [20] that:

"Counsel explained at the hearing that the appellants were not advised as to the relevance of this witness by their solicitor. The appellant confirmed this in her evidence."
2. Secondly, the grounds maintained that the appeal should have been adjourned in order for the applicant to obtain her medical records as they could provide objective evidence of her mental health problems following her experiences in Sri Lanka, including a suicide attempt after coming to the UK. At [67], having refused the adjournment for medical evidence, the First-tier Tribunal took an unfair approach in finding that the appellant's evidence was not credible because there was "no independent medical evidence, and indeed no third party evidence at all, which is supportive of the appellant's claim that she has tried to commit suicide."

3. Thirdly, it was argued that the hearing should have been adjourned in order for the appellant to have her case heard by an all-female court because of her difficulties in giving evidence where the core of her case concerned serious sexual assaults.
4. Turning to the first part of this ground, in my judgement Judge Monson gave sustainable reasons at [41] for not adjourning in order for the uncle to give evidence. As he pointed out, the appellant had been legally represented and the legal representatives could be expected to have taken into account the uncle's part in her claim when preparing the case. As also indicated by the First-tier Tribunal, no "good reason" was given for the uncle not having made a witness statement or attended court if he was willing to give evidence.
5. The assertion in the grounds that Judge Monson was told by counsel and the appellant that the appellant's legal representatives had failed to advise her as to the relevance of the uncle's evidence is not made out by a supporting witness statement from counsel or in the witness statement dated 20 January 2016 of the appellant provided for the Upper Tribunal error of law hearing.
6. The correct approach where an allegation of this kind is made is considered by the President of the Tribunal in the reported case of BW (Witness statements by advocates) Afghanistan [2014] UKUT 00568 (IAC). The head note of that case states:
"(i) It is timely to recall the golden rule of judicial adjudication that justice must not only be done but must manifestly be seen to be done.
(ii) In certain cases, likely to be rare, evidence presented to the Upper Tribunal may include a witness statement compiled by a representative involved in the hearing before the First-tier Tribunal ("FtT"). In practice, this is most likely to occur in cases where such evidence is considered necessary to demonstrate that the appellant was deprived of his right to a fair hearing at first instance.
(iii) Evidence of this kind will not be required if the determination of the FtT speaks for itself on the relevant issue.
(iv) In applications for permission to appeal, the distinction between legal submissions and arguments (on the one hand) and evidence about events at the hearing (on the other) must be carefully observed.
(v) Where an advocate makes a witness statement in the circumstances outlined above, a change of advocate may be necessary, since the roles of advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness.
(vi) The respondent's rule 24 response must engage specifically with additional evidence of this kind."
BW provides further, at paragraph 5(iv) that if
"? it is decided that a witness statement of the kind which materialised in the present case must be made, the legal representative concerned should, as a general rule, not present the appeal before the Upper Tribunal. The roles of an advocate and witness are distinct, separated by a bright luminous line. An advocate must never assume the role of witness."
7. There is no witness statement from Ms Solanki who was counsel before the First-tier Tribunal or from the appellant stating that Judge Monson was told that the absence of evidence of the uncle was the responsibility of the legal advisers. There is nothing from the legal advisers commenting on this (or any other) matter. There is nothing to confirm that the appellant has raised a concern about this potentially negligent conduct with the legal advisers, either informally or formally. The materials are not sufficient to show that this matter was put before the First-tier Tribunal. There can be no error of law where that is so.
8. Turning to the second limb of the first ground, it cannot be correct to say that the appellant was "prevented" from bringing evidence from her GP or other medical evidence as suggested at [28] of the written grounds. The appellants were legally represented and had proper notice of the hearing, that notice including a direction to provide "all the documents to be relied on". If the absence of GP records or other medical evidence was a result of the inaction of the legal advisers, as in the previous paragraph, nothing shows this was suggested to Judge Monson and no error can arise for his failing to take that explanation into account.
9. The final part of the first ground of appeal concerns the refusal to adjourn for an all-female court. It is useful at this point to set out exactly what the grounds state in this regard:
"All Female Court
29. The appellant requested an all female court on the basis that she would feel more comfortable discussing her case and give her best evidence. The respondent agreed to the adjournment on this basis. The Tribunal refused this request after confirming and saying to the respondent's representatives that it was not appropriate to cross-examine on the sexual assault. This was agreed.
31. The respondent's representative later changed her mind after speaking to a senior caseworker about this and said she did intend to cross-examine on this issue.
32. The application was renewed on the basis that the adjournment was first refused on the basis that the sexual assault would not be a cross-examination issue but it now was and so clearly right to adjourn to allow for the best evidence. This was in line with the vulnerable appellant's guidelines and it was not fair or in her best interests to proceed when the arrangements could be made. The respondent's representative agreed with the adjournment request on this basis.
33. It is surprising that paragraph 41 of the determination does not accurately reflect what happened at the hearing and the respondent's agreement to adjourn on this basis.
34. The IJ said that there was no need to adjourn as it 'makes no difference whether she is asked or not' and 'it may not be ideal, but there it is.' This demonstrated a lack of regard for the vulnerable appellant guidelines and the sensitivity of the issues in this case. The appellant was asked about her current treatment by her Counsel and was in floods of tears and required a break. At that stage it was once again said that she would be best served with an all female court. The judge declined. This request is again not reflected in the determination.
36. In all the circumstances the refusal of the adjournment was unfair and unreasonable. The appellant has been denied a fair hearing and has been prejudiced by the refusal to adjourn."
14. In addition, the appellant provided a witness statement dated 20 January 2016 for the error of law hearing before me which states (verbatim) at [5] and [6],:
"5. I felt so uncomfortable whilst I was being cross examining on the sexual assault. To begin with, even the Home Office representative agreed not to cross examine me on the sexual assault because the Judge asked her. However, she later asked a more senior person in her office and they came back and said I must be asked.
6. I was crying so much when being asked and I felt very ashamed. However, the Judge just said it would make no difference. I don't think that was correct and this is a question of my life and I was not happy about that. I was in the court first time, because of that I was already scared about my court case. I found it very difficult to explain because of the circumstances surrounding. "
15. The summary of the appellant's oral evidence at the hearing at [42]-[51] of the determination, however, does not indicate that she was questioned at all about the sexual assault or the detention itself. The First-tier Tribunal judge does record at [46] that the appellant broke down in tears when asked about her current medical treatment but nothing indicates that cross-examination on that aspect of her evidence had been opposed. The grounds at [34] show that, quite properly, there was a short adjournment at that point.
16. Following BW, the challenge set out at [31] - [34] of the grounds of appeal calls for a witness statement from counsel who appeared at the First-tier Tribunal. When this was put to Ms Solanki she stated that she had raised the matter with the appellant but she had not felt able to recuse herself in order to provide a witness statement as the appellant had shown a strong preference for her remaining as counsel. She also confirmed that a copy of her written note of the hearing was not available. No explanation for that was proffered.
17. As it stands, without more, I did not find the materials before me showed that Judge Monson erred in declining to adjourn for an all female court or that procedural unfairness arose because of particular questions being put to the appellant. As in 5.3 (i) of the Joint Presidential Guidance Notes Number 2 of 2010, Child, Vulnerable Adult Guidance, Judge Monson established at [41] that the appellant did not need to be questioned on the sensitive aspects of her account, that is, the sexual assault. As in [30] of the grounds, it was agreed that the appeal could proceed in that manner. The judge did not show a "lack of regard" for the Guidelines, as suggested at [34] of the grounds.
18. If an appellant is questioned on highly sensitive matters such as a sexual assault when an express indication has been given by a judge that this should not happen, or, having given such an indication the judge then allows for a different approach during the hearing, an appellant's legal representatives and counsel can be expected to support a challenge on that basis with cogent evidence, including the specific inappropriate questions put and doing so in witness statements in line with BW. That has not been done here.
Challenge to Credibility Finding
19. The First-tier Tribunal finds at [74] that although the appellant may have been the victim of a sexual assault, it did not occur in the context of detention by the Sri Lankan authorities. The conclusion that followed from that finding is that she had not shown a real risk of mistreatment at the hands of the authorities on return.
20. The main challenge to the credibility findings in the written grounds of appeal was a failure to take into account the particular evidence on the risk of sexual assault of Tamil women and guidance of the Court of Appeal in PP (Sri Lanka) v SSHD [2014] EWCA Civ 1828 on the approach to that evidence. The grounds also referred to a misdirection in law as regards the medical evidence which included a psychiatric report and a mistake of fact concerning newspaper articles relied upon by the applicant describing murders of co-workers.
21. At the hearing, Ms Solanki applied to vary the written grounds of appeal. The amended ground concerned the evidence of the second appellant, the first appellant's husband. He provided a witness statement dated 21 August 2015 and gave evidence to the First-tier Tribunal. His oral evidence is summarised at [52]-[55] of the decision. The oral evidence is in line with the witness statement at [5]-[7] which recounts that in January 2013 he kept trying to contact his wife but could not do so, telephoned other family members in Sri Lanka and was told that she had been detained. He was informed of her release from detention and described the difficulties the couple had experienced in their relationship as a result of the sexual assaults experienced by his wife.
22. It was common ground before me that the First-tier Tribunal decision does not indicate specifically that the husband's evidence was taken into account when finding that the appellant was not credible as regards the detention in January 2013 and does not make any findings on that part of the evidence.
23. When deciding whether to allow the variation to the written grounds, I referred to the Presidential Guidance Note No 1: Permission to appeal to UTIAC which provides at [9]:

"9. It is reasonable to expect a professional representative to set out the basis of the application for PTA with an appropriate degree of particularity and legibility, but lack of skill or pressure of time may lead to a clear point not being identified. Where there may be a duty to consider points that are "Robinson obvious" (see R v Secretary of State for the Home Department, ex p Robinson [1997] 3 WLR 1162) there is power to consider any other point arising from the decision if the interests of justice so require."

24. It is my judgement that, here, the determination does not show that potentially highly material evidence, a second witness specifically corroborating the core of the appellant's account of detention by the authorities, came within the ratio of Robinson. I allowed the grounds to be varied and granted permission to appeal on the new ground. Where the potentially highly probative evidence of the husband is not shown to have been taken into account at any point in the credibility assessment, I concluded that it was fatally undermined thereby and had to be set aside to be remade.
25. In addition, where it was accepted that the appellant was a victim of a sexual assault, it was also my view that the credibility assessment that this did not occur after detention by the Sri Lankan authorities could not stand where nothing showed that the account was considered against the country evidence on sexual assaults on Tamil women, the skeleton argument from the First-tier Tribunal showing that the specific evidence and correct approach to it set out in PP was brought to the judge's attention.
Decision
26. The decision of the First-tier Tribunal discloses an error on a point of law and is set aside to be re-made in the First-tier Tribunal.
Directions
27. There is no challenge to the finding that the appellant was sexually assaulted. That finding remains extant and the re-making of the decision will proceed on that basis.
28. The parties will file with the Tribunal and serve on each other a paginated, indexed bundle of all materials on which they wish to rely NO LATER than 15 April 2016.
29. A female Tamil interpreter will be provided.
30. An all-female court will be convened.

Signed Date 18 February 2016
Upper Tribunal Judge Pitt