Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/06097/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 September 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

VV
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms S Jegarajah, instructed by Loshana and Co
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS

1. This is a case where credibility was obviously important and part of the judge's credibility evaluation was an assessment of the medical reports, the report of Professor Lingam and the report of Dr Lawrence.

2. In relation to both of those the point is made in the grounds that the judge drew from his personal experience as a solicitor specialising in child protection and found with regard to Dr Lingam that he had not followed medical best practice and the concern expressed about this is that this was not put to Counsel for the appellant although the judge had announced his expertise as a child protection solicitor in open court and the appellant had no opportunity to respond to the judge's newly announced expertise as it is put in the grounds, as to the reports and the procedures that he favoured.

3. That was a matter that gave me initial concern when I read it in the grounds and when one looks in more detail at the judge's evaluation of the two reports, clearly in both cases he draws on his experience as a child protection solicitor, and of course there is nothing wrong with the judge having an expertise, it is extremely valuable but there must be a concern I think that if he had concerns arising from how the medical reports were prepared and set out and that concern arose as a consequence of his professional expertise, it was incumbent on him to give an opportunity to the appellant to comment on those matters and that opportunity was not given.

4. I do not think this can be just said to be something that is as it were cured elsewhere by his assessment of the evidence. It is clear that in each case he attached significance to his experience. With regard to Professor Lingam's report he had a concern about the fact that he had set out his conclusion first and then considered other possible explanations, the impression conveyed, he said, was of someone seeking to justify the conclusion to which he had already come rather than someone seeking to consider all the possibilities which is quite a powerful allegation to make about an expert report. Again it is not something that the judge cannot do but I think it is something where there has to be care, particularly when the judge is basing himself on an expertise which he has only declared in general terms rather than specifically in relation to this report and he said, for example, given his experience that medical best practice in preparing reports dealing with the causation of the scars and injuries is variable differential diagnosis and the structure that he sets out is one that effectively he says Professor Lingam should follow.

5. Then moving on to what he says about Dr Lawrence's report, again he relies on his expertise and expresses concern about the failure to refer to medical notes, and I think it is not clear whether there were medical notes in this case and if Dr Lawrence said anything about medical notes, as Ms Jegarajah says, it may be the case that asylum seekers do not always have access to a GP and have medical notes. We simply do not know what the position on that is, but I think that bringing these matters together and leaving aside the other points of concern, the judge's views on the credibility of the medical evidence in relation to this claim were sufficiently central and in my view sufficiently flawed as to make the decision unsafe.

Notice of Decision

6. So I think that on that basis alone without needing to say anything about any other points the matter will have to be set aside and I think it will have to be reheard in the First-tier as well. So that is what will be done in this case.

Anonymity direction made.

Signed Date
Upper Tribunal Judge Allen 19 October 2016