Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05214/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision & Reasons Promulgated
On 21 September 2016
On 17 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

B P W W P
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr Sellwood instructed by the Migrant Legal Project
For the Respondent: Mr Richards, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a Sri Lankan national. On 11 July 2014 the Respondent made a decision to refuse to recognise him as a refugee and to remove him as an illegal entrant under section 10 of the Immigration and Asylum Act 1999. The Appellant appealed that decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002. His appeal was dismissed by First-tier Tribunal Judge Powell in decision promulgated on 14 March 2016. He found that the Appellant had not given a credible account and dismissed his appeal under the Refugee Convention and under Article 3 ECHR.

2. The Appellant sought permission to appeal to the First-tier Tribunal. First-tier Tribunal Judge Simpson granted permission finding that the grounds identified an arguable error of law.

The Grounds

3. The grounds state that although the Judge found Dr Longman, who had provided a full medico-legal report regarding the Appellant, to have provided 'powerful evidence' to support the Appellant's account that he was tortured and his wife beaten and that the report was 'Istanbul compliant' he found at paragraph 29 of the decision that doctor's expertise and assessment of the Appellant's mental health was not reliable. He based this on the fact that Dr Longman was not a psychiatrist and had no formal qualifications or training in psychiatry. It is asserted on behalf of the Appellant that the reasons give as to why the Judge did not accept her evidence are merely superficial and not sufficient. They did not identify any failings with regard to procedure, process or methodology. It is contended that Dr Longman had carried out a critical and objective analysis of the Appellant's symptom's in accordance with the tenets of the Istanbul Protocol, relying not only on what the Appellant said to her but also on his presentation and behaviour during the examination and on the clinical plausibility of the symptoms he described. She also considered the possibility that he was feigning symptoms and explained why she concluded that this was not the case.

4. It is submitted that in the circumstances Dr Longman's report constituted compelling, independent evidence that the Appellant was detained and tortured as he described and the Judge erred in failing to provide adequate reasons why he did not accept her findings.

5. It is further argued that the Judge's finding at paragraphs 37 to 39 that he did not find it credible or plausible that an agent in a period of eight weeks would be able to make arrangements to securing a place of study at a British University was in error. There was no evidence from the University before the Judge highlighting when the application to study was made and the Appellant was provided with no opportunity to provide the information.

The Hearing

6. Mr Sellwood submitted that if the Appellant were found credible he was a refugee. There was independent evidence that corroborated his account in the form of Dr Longman's medico-legal report. At paragraph 29 having accepted the scarring aspect the Judge disregarded the mental health diagnosis because Dr Longman was not an expert. It was clear that a mental health assessment was required in combination with scarring and that was best practice and paragraph 234 and paragraphs 260 and 261 of the Istanbul Protocol stated that psychological evidence was useful. The overall goal of any psychological assessment was to assess the degree of consistency. There was no clear guidance that required a mental health assessment from a psychiatrist. The Istanbul Protocol referred to clinicians and there was more than enough to show that she had the qualifications. In her CV at page 23 she explained that she regularly shadowed consultants. She had been an independent doctor for Medical Justice for over 5 years. Page 14 of her report in the Appellant's bundle noted that she had assessed more than 70 people and had experience of psychiatry in a hospital setting and psychological training. All doctors were required to recognise PTSD and she could do so with a significant level of expertise. She applied well-known criteria when determining PTSD and checklists and questionnaires and all was in accordance with the Protocol. There was also reference to him receiving medication for symptoms. Paragraph 3.3 at p4 and pages 6-7 focussed on the physical symptoms of trauma. Had that been considered and taken into account and the same weight given to that aspect of the report as to the scarring the result may have been different.

7. With regard to Ground 2 there was never a matter in issue between the parties as to the agent's ability to assist with the Appellant's admission to college. At paragraph 37 the Judge did not find credible that the Appellant would have done what the agent said he did. It was unclear whether the finding was put to him at the hearing because it was not a matter in issue. The Appellant did not have a sufficient opportunity to respond and provide further evidence to rebut that finding. It was a new matter essentially and he should have had an opportunity to get evidence before the decision was made.

8. Mr Richards submitted that there was no material error of law. The First-tier Judge took account of relevant evidence and accepted the evidence in as much as it dealt with the evidence of scarring and accepted that the Appellant received injuries but not in the manner which it was claimed. In respect of mental health the Judge was entitled to place little weight on a psychiatric assessment conducted by someone without qualifications and in any event having accepted that the Appellant had been subject to some kind of mistreatment it was doubtful what further could have been gained given particularly in view of what was said at paragraph 86. Dr Longman acknowledged that there could be other causes for the injuries. The Judge had considered the Appellant's account that he left in 2009 and considered the risk of returning in 2011 and found him not to be credible. What the Judge had done was weigh the whole of the evidence in the round and he was entitled to reach that conclusion. He was entitled to form a view on the evidence on the circumstances in which the Appellant applied for a student visa and come to the conclusion that he reached in paragraph 40 that he intended to study in 2009 and made the application and put in place the arrangements a long time before the arrest. If the Appellant chose to raise matters then it was matter for him to produce whatever evidence he chose to support his account. The Judge was entitled to come to the conclusion he did. He asked me to find that the determination was one that was open to him.

9. Mr Sellwood replied that on the second ground the Judge was entitled to make a finding but the Appellant was entitled to an opportunity to respond. With regard to paragraph 86 the point was that if the Judge had given weight to mental health aspect the outcome may have been different. If there was third party evidence that was accepted then the adverse findings would have been looked at through a different prism. In so far as disposal was concerned he agreed that remittal was the appropriate course and it would be difficult to preserve any findings.

Discussion and Findings

10. The First-tier Tribunal found that Dr Longman had produced a balanced, clear, reasoned and succinct report and that she set out her approach in accordance with the Istanbul Protocol (paragraph 24). He found that her opinion that the pattern of lesions was typical of the history given by the Appellant was significant evidence. He gave weight to her opinion in light of the classification in the Istanbul Protocol (paragraph 28). Dr Longman also had given her opinion on the Appellant's mental state. The Judge stated at paragraph 29 that he was concerned that she did so given that she acknowledged that she was not a psychiatrist. He stated that she had no formal training in psychiatry or in the professional clinical application of the diagnostic criteria. He concluded that he did not find her opinion on the Appellant's mental health, post-traumatic reaction and suicidal ideation reliable.

11. Having dealt with the medical evidence he evaluated the Appellant and his wife's evidence and considered the inconsistences in the Appellant's account. In a comprehensive evaluation of the evidence he concluded that there were many discrepancies which he found could not be explained away. He concluded at paragraph 84 that Dr Longman provided powerful evidence to support the Appellant's claim of being tortured and his wife's claim to have been hit by a rifle butt and that her reasoned conclusions carried great weight. He noted that her analysis indicated that the Appellant's scarring was typical but not diagnostic of the causes he attributed to them. He found at paragraph 85 however, that the evidence of the Appellant was inconsistent, incredible and unreliable and that he was entirely satisfied that the Appellant had invented an elaborate claim for asylum, supported by a series of documents fashioned to bolster his false account in order to remain in the United Kingdom.

12. Dr Longman reported on the Appellant's mental health at paragraphs 6.3.1 to 6.3.8 of her report in the Appellant's bundle. She stressed that she was not a psychiatrist but stated that she had considerable experience in examining patients who claimed they had been tortured in their own countries. She set out the basis upon which she was qualified to offer expertise in relation to mental health namely, her experience of assessing people who claimed to have been tortured; experience in working in psychiatry in a hospital setting; the psychological training available to all GP trainees, the recognition of mental illness being a core part of the GP training curriculum; the specific training in the diagnosis of mental illness related to torture provided by Medical Justice and the fact that all doctors are required by the National Institute for Clinical Excellence to be able to recognise, if not treat, PTSD and depression.

13. She found that the Appellant showed clinical features of both mild depression and post-traumatic stress disorder and so she assessed him more formally using the PHQ-9 depression questionnaire and the PTSD checklist as well as using the DSM-IV diagnostic criteria for these conditions. She found that a diagnosis of a major depressive episode was highly compatible with his observed mental state. She set out his scores and noted that his GP had prescribed him with antidepressants and referred him for EMDR (Eye Movement Desensitization and Reprocessing) treatment for his PTSD symptoms. She also commented on his risk of suicide which she considered to be moderately high. She then commented on the clinical reasons why there could be discrepancies between accounts and states that people who have been abused and who suffer from PTSD are frequently confused about dates and times. At paragraph 6.4.4. she says that in her opinion the factors she sets out from the medical and psychological research on human memory and trauma are relevant to his accounts. He described a highly traumatic experience including sexual assault, had a clinical picture of PTSD and depression, slept poorly and with these condition and according to the medical research on memory, gaps in his memory and between his accounts would not be surprising clinically.

14. It is clear that the First-tier Tribunal's rejection of Dr Longman's opinion on the Appellant's mental health due to his conclusion that she lacked the requisite expertise to give the opinions she did led him to disregard that part of her report. He both says so expressly at paragraph 29 and has no regard to it in his conclusions at paragraphs 84 and 85. I find that his disregard of this evidence was a material error of law. As a GP Dr Longman was qualified to recognise PTSD and depression and trained in psychology. She also had specific training in the diagnosis of mental illness related to torture. The Istanbul Protocol also sets out at paragraph 234 onwards the central role of the psychological evaluation and comments that most clinicians and researchers agree that the extreme nature of the torture event is powerful enough on its own to produce mental and emotional consequences, regardless of the individual's pre-torture. At paragraph 261 it states that psychological evaluations provide useful evidence for medico-legal examinations. The Protocol refers to clinicians and there is no stated expectation that a psychiatrist will carry out the assessment of psychological status.

15. The error was clearly material because it led the First-tier Tribunal to disregard potentially relevant evidence in relation to the discrepancies in the evidence. I preserve no findings of fact. In light of the fact finding required and taking account of Part 7.2 (a) of the Practice Statements for the Immigration and Asylum Chamber of the First-tier Tribunal and Upper-Tier Tribunal I remit the matter to the First-tier Tribunal.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set the decision aside.

I remit the matter to the First-tier Tribunal for re-hearing.

Anonymity

The First-tier Tribunal made an order and I continue that order (pursuant to 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 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.

Signed Dated

Deputy Upper Tribunal Judge L J Murray