Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06059/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke,
Decision Promulgated
on 9th August 2016
On 31st August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

mcs
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Schwenk, of Counsel, instructed by Greater Manchester Immigration
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS
1. On 25th February 2016 Judge of the First-tier Tribunal Reid gave permission to the appellant to appeal against the decision of Judge of the First-tier Tribunal Evans in which he dismissed the appeal on all grounds against the decision of the respondent to refuse asylum, humanitarian and human rights protection to the appellant, a male adult citizen of Guinea.
2. In granting permission Judge Reid noted that the grounds contended that credibility findings of the First-tier Judge were unsafe because the Medical Foundation Report which, although disclosed late, was rejected by the judge without arguably giving adequate reasons. Additionally, it was argued that the judge had failed to make findings in relation to the appellant's claimed government employment and dismissal and the claim that his father and a son had died in a suspected arson attack.
3. Whilst Judge Reid thought that the First-tier Judge had dealt with credibility issues regarding employment it was arguable that the judge's conclusions on credibility in the light of the Medical Foundation Report (now known as Freedom from Torture) were lacking in reasoning.
4. At the hearing Mr Schwenk argued that the medical report had not been considered adequately. Although there had been late disclosure of the appellant's claimed detentions and sexual assault, this matter had been dealt with in the report (pages 47 and 48) and the possibility of fabrication of the claims. However, the report had concluded that the scarring borne by the appellant was consistent with his claims.
5. Mr Schwenk also submitted that the negative conclusions of the judge in paragraphs 46 and 47 were contradictory bearing in mind that the judge had found the appellant to be a Peuhl which group had often been the target of the state's security forces and that, at some point in the past, the appellant had suffered significant trauma and, possibly, mistreatment.
6. Mr Bates relied upon the response of 10th March 2016 which briefly asserts that the judge did not misdirect himself and made adequate findings of fact. In particular, the judge gave adequate consideration of the medical report in paragraphs 44 and 46 of the decision. He emphasised that the report had only found the appellant's injuries to be consistent with the claimed cause so was not conclusive. Thus, the judge was entitled to conclude that the appellant had suffered trauma but not as claimed.
Conclusions
7. At the end of the hearing and after I had considered the matter for a few moments, I indicated that I was satisfied that the decision of the First-tier Judge showed errors on points of law such that it should be set aside and re-made before the First-tier Tribunal. I now give my reasons for that conclusion.
8. In paragraphs 44 and 45 the judge refers to the medical report by Dr Nadim noting that five lesions on the appellant's body were consistent with his claimed torture and that post-traumatic stress disorder had been diagnosed. Further, in paragraph 45 the judge indicates that Dr Nadim's report has been carefully prepared and "clearly" some weight should be given to it. However, the judge gives no reasons at all for rejecting the medical evidence in reaching findings on credibility which are, apparently, based solely on inconsistencies in evidence. Bearing in mind that the medical report reaches conclusions about the cause of the appellant's injuries and also considers the possibility of fabrication of evidence as well as diagnosing mental illness, it was incumbent upon the judge to give cogent reasons for rejecting the expert medical opinion. The Upper Tribunal so found in FS (Treatment of expert evidence) Somalia [2009] UKAIT 00004.
9. Additionally, the judge's failure to give adequate consideration to the medical evidence highlights the inconsistency in paragraphs 46 and 47 of the decision where the judge finds that, in the light of the evidence including the medical report, the appellant is a member of an ethnic group often targeted by the state's security forces but then rejects the credibility of the appellant's claims on the basis of other inconsistencies in the evidence which had not been viewed in the light of the medical report.
10. The errors are such that the full appeal will need to be reheard by the First-tier Tribunal. This conclusion is consistent with the Practice Statement of the Senior President of Tribunals of 25th September 2012 at paragraph 7.2 bearing in mind that the evidence will need to be heard afresh.
Anonymity
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008):
DIRECTION REGARDING ANONYMITY - RULE 14 OF THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008
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 appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
DIRECTIONS
11. The appeal will be heard afresh by the First-tier Tribunal sitting at Manchester.
12. The remitted appeal should not be heard by Judge of the First-tier Tribunal Evans.
13. A French interpreter will be required for the hearing.
14. The time estimate for the hearing is two and a half hours.
15. The hearing will take place on a date to be specified by the Resident Judge.

Signed Date 30 Aug 2016

Deputy Upper Tribunal Judge Garratt