Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06911/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11th January 2017
On 06th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

M S
(ANONYMITY DIRECTION made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D O'Callaghan (Counsel)
For the Respondent: Mr T Melvin (Senior Home Office Presenting Officer)

DECISION AND REASONS ON ERROR OF LAW

1. The appellant is a citizen of Morocco. In a decision promulgated on 24th October 2016, his appeal against a decision to refuse his protection claim was dismissed by First-tier Tribunal Judge Andonian ("the judge"). The appellant claimed to be at risk on return as a homosexual. The judge disbelieved this core claim, concluding that he would not be at any real risk on return.

2. Permission to appeal was sought, on the basis that the judge erred by failing to consider material evidence. The appellant's bundle included medical notes which showed that he disclosed his sexuality to his GP, and that he was offered numerous tests in response to what he revealed about his sexual activities. It was contended that the judge failed to consider this evidence at all. Secondly, the judge erred in his approach to medical evidence regarding a serious psychotic episode, leading to the appellant being detained under section 3 of the Mental Health Act 1983 for a period of three months. The judge described the appellant as having been "sectioned for a very short time as he was in a fit of temper," which amounted to a serious misreading of the documentary evidence.

3. In a rule 24 response, the Secretary of State opposed the appeal on the basis that the judge had directed himself appropriately and that his findings of fact were open to him on the evidence. It was not incumbent upon the judge to comment expressly on each aspect of the appellant's evidence.

Submissions on Error of Law

4. Mr O'Callaghan said that at the heart of the appellant's case lay the claim regarding his sexuality. The skeleton argument prepared for the hearing, which was before the judge made clear his reliance upon medical evidence (at paragraph 19), including notes contained in his medical records. These showed that he disclosed his sexuality to his GP and his sexual activities in the United Kingdom soon after the substantive asylum interview. That evidence was relied upon by the appellant at his hearing. The appellant's screening interview was conducted in October 2014 and the substantive asylum interview on 11th November that year, the appellant living in Middlesbrough at the time. Page 163 of the appellant's bundle showed that he registered with his GP on 12th December 2014, a month after the substantive interview. Records also showed that he was offered an HIV test and screening for sexually transmitted infection, following his attendance at surgery on 12th December 2014. At page 166 of the bundle, his medical records showed that he disclosed his fear of persecution on return to Morocco as a homosexual and that he was again offered screening on 1st October 2015. That was a significant date. It was the day he was discharged from his Mental Health Act section and it was most unlikely that he would have sought at the time to lay down a false path to hoodwink a judge at a hearing in the future. The records showed that he was brought to his GP from the hospital following his discharge so that there could be some liaison regarding appropriate treatment.

5. All of this was raised in the skeleton argument before the judge but the decision showed no engagement with it. Instead, the judge focused on the appellant's apparent claim following his arrival in the United Kingdom that he had a wife and two children. The judge also failed to appreciate the significance of the section 3 detention for a period of three months, a very long period when seen in context.

6. Mr Melvin relied upon the rule 24 response. The judge made numerous findings regarding the appellant's claim to be homosexual and explained why he concluded that this claim was not made out. He gave careful consideration to a report from an expert instructed on the appellant's behalf. Paragraph 8 of the decision included many discrete findings, showing how the judge reached his conclusions. At paragraph 21 of the decision, the appellant's Mental Health Act section was referred to and it was up to the judge to decide whether a long or a short period of time was concerned. Overall, the judge considered all of the evidence before him and gave sustainable reasons for dismissing the appeal. By the time of the hearing, the appellant's psychotic illness appeared to have resolved. The medical records did not amount to an acceptance by the GP that the appellant was homosexual or any indication that this was the GP's assessment. The notes recorded a reaction to what the appellant had said.

7. Although the judge did not refer to the GP's notes or make full findings regarding them, this particular evidence did not show that the appellant was homosexual and so the absence of any express mention of the notes was not material to the outcome, given the judge's full findings and his credibility assessment.

Conclusion on Error of Law

8. I gave my decision briefly at the hearing. I find that the decision of the First-tier Tribunal should be set aside, as containing material errors of law.

9. Paragraph 8 of the decision is important. It is there that the judge makes a series of discrete, adverse findings regarding the appellant's core claim. He concluded that much of what was said and alleged should have been disclosed earlier but was not. What is missing from the decision is anything to show that the judge engaged with the GP's notes and took them into account in making his overall assessment. As Mr O'Callaghan submitted, these notes show that the appellant disclosed his sexuality and that he was offered screening tests shortly after the substantive asylum interview. They do not appear in the judge's summary of the relevant chronology at paragraph 8, or elsewhere in the decision. If the judge was minded to find against the appellant that his claims should have been made earlier, it was incumbent upon him to take into account evidence which bore directly on the salient issue. On any sensible view, that evidence was not disclosed at the last minute.

10. The skeleton argument which was before the judge (it is the first item in the appellant's bundle) draws attention to the medical notes at paragraph 19, in support of a submission that the appellant disclosed his sexuality to his GP several times following his arrival in the United Kingdom, evidence which was consistent with what appeared in his witness statement. All of this was plainly before the judge and was required to be properly engaged with.

11. In a brief discussion on the appropriate venue for the re-making of the decision, the two representatives agreed that the case should return to the First-tier Tribunal. In view of the extent of the fact-finding required, this is the appropriate course. The decision will be remade by the First-tier Tribunal at Taylor House, before a judge other than First-tier Tribunal Judge Andonian.

Notice of Decision

The decision of the First-tier Tribunal is set aside. It will be re-made in the First-tier Tribunal, at Taylor House, before a judge other than First-tier Tribunal Judge Andonian. The hearing will be de novo and no findings of fact are preserved.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the anonymity direction made in the First-tier Tribunal shall continue. No report of these proceedings shall directly or indirectly identify him or any member of their 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 Date

Deputy Upper Tribunal Judge R C Campbell