Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06964/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 14 September 2016
On 27 September 2016

Before

UPPER TRIBUNAL JUDGE PITT
DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

RT
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. P. Lewis, Counsel instructed by Kanaga Solicitors
For the Respondent: Mr. D. Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Easterman, promulgated on 3 May 2016, in which he dismissed the Appellant's appeal against the Respondent's refusal to grant asylum.

2. We make an anonymity direction, continuing that made in the First-tier Tribunal.

3. Permission to appeal was granted as follows:

"While the judge clearly gave consideration to the medical evidence, an overall reading of the decision appears to indicate that no clear findings were made as to whether the judge accepted the core diagnosis given by psychiatric professionals or not. It is also arguable that the judge's negative credibility finding relating to the past history of traumatic events is not underpinned with sufficient reasoning [99]. The sole reason given for rejecting the account of past events appeared to be the earlier negative finding regarding late disclosure, which was said to have "severely shaken his credibility". However, no assessment appears to have been made of the credibility of his account of past trauma in light of the background evidence relating to events in Sri Lanka at the relevant time, which on the face of it, was broadly consistent with his account and the psychiatric diagnosis."

Application to amend grounds of appeal

4. At the outset of the hearing, Mr. Lewis applied to amend his grounds of appeal with reference to handwritten amended grounds. He submitted that the judge had failed to make any assessment of the risk arising from the Appellant's involvement in the TGTE. He submitted that the Court of Appeal was due to hear an appeal on the risk arising from TGTE involvement soon. The TGTE remained a proscribed organisation and had a continuing connection to the LTTE.

5. He referred to paragraph [90] of the decision where the judge set out the evidence from the TGTE. This evidence showed that the Appellant was organising events for the TGTE. The judge had considered the Appellant's sur place activities but his assessment was directed solely at the photographs of the Appellant attending demonstrations, and did not refer to his organising events for the TGTE [92]. He submitted that the judge had failed to assess the risk arising from the Appellant's involvement with the TGTE. This led to a failure properly to determine the risk on return to the Appellant which amounted to a material error of law.

6. In response Mr. Clarke submitted that the new ground of appeal should not be admitted. The case had not yet been heard in the Court of Appeal, and the circumstances of that appellant were not known. In paragraph [92] the judge had found that the Appellant's activities sur place were a sham. He had found that it was highly unlikely that the Sri Lankan authorities would consider the photographs anything more than an attempt to substantiate an asylum claim. This was in line with the case law on the sophisticated intelligence used by the Sri Lankan authorities. In paragraph [93] the judge pointed out that there was no additional evidence explaining what the Appellant was doing at the events set out in the photographs. Further, the application to admit the new ground had been made far too late.

7. Mr. Lewis in response stated that he had spoken to Counsel in the Court of Appeal case, UB (Sri Lanka) v SSHD (C5/2015/0753), and the issue to be decided is the risk that arises from involvement with the TGTE, the same as in the Appellant's case. He submitted that the judge had not rejected the Appellant's sur place activities as sham. The issue of the risk arising from the Appellant's membership of the TGTE had been argued at the First-tier Tribunal. In particular, the case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) had been raised, which held that diaspora activities were an issue to be determined.

8. Having considered these submissions, and the decision, we decided that where the issue of the Appellant's involvement as an organiser for the TGTE had been put expressly to the judge this was a ground of appeal coming within the "Robinson-obvious" category and had materiality such that it was in the interests of justice to extend time and admit the further ground of appeal.

Application to admit new evidence

9. Mr. Lewis then made an application to admit new evidence. This took the form of an additional report from Dr. Dhumad submitted with the grounds of appeal. He submitted that the issue of the Appellant's ability to take part in diaspora events and demonstrations, despite his mental health, had not been raised by the Respondent's representative in the First-tier Tribunal, but the Judge had expressed concern in the decision about the Appellant's ability to do so, given his past experiences. The additional report addressed this point. He submitted that it was evidence which would assist the Tribunal in its approach to the medical evidence.

10. In response Mr. Clarke submitted that this evidence had not been available to the First-tier Tribunal and the application should be refused.

11. We considered that it was not in the interests of justice to admit this new evidence which had not been before the First-tier Tribunal Judge when he had made his decision, and therefore would not assist in a decision as to whether or not he had made an error of law. The new evidence was therefore not admitted.

Submissions

12. Mr. Lewis relied on the grounds of appeal and his amended grounds. He submitted that there were two main grounds. The first was the judge's failure to have regard to the relevant medical evidence, and the second was the new ground relating to the TGTE.

13. In relation to the first ground, we were referred in particular to paragraphs [6] and [11] of the grounds of appeal. In his report, Dr. Dhumad had considered how the Appellant would behave given his experience of trauma (Appellant's Bundle C, page 20). Mr. Lewis submitted that the judge was compelled to have regard to this evidence, and his failure to do so rendered his findings unsafe. The judge had relied on the Appellant's late disclosure for a negative credibility finding, but had failed to be guided by the evidence regarding the reasons for the late disclosure. The evidence from Dr. Dhumad had been obtained in order to assist the Tribunal to take the correct approach to the issue of the Appellant's late disclosure. The judge did not have any personal experience or expertise in this area. He had been explicitly referred to this paragraph of Dr. Dhumad's report regarding the approach to be taken to the Appellant's late disclosure.

14. In relation to the TGTE, Mr. Lewis relied on the submissions made when applying to admit this additional ground ([4], [5] and [7] above). Evidence of the Appellant's involvement with the TGTE had been provided. Although some groups had been taken off the list of proscribed organisations in November 2015, the TGTE remained a proscribed organisation. GJ made explicit reference to the sophisticated monitoring and intelligence of the Sri Lankan authorities. We were referred to paragraph 335 of GJ. The judge had cited the evidence of the Appellant's TGTE involvement and had not rejected it [90]. The Appellant had an organisational role in the TGTE. The judge's failure to consider this when considering risk on return was a material error of law.

15. Mr. Clarke relied on the Rule 24 response. In relation to the first ground, he submitted that the Appellant had been changing his story. He referred to page 20 of Dr. Dhumad's report, where the Appellant's late disclosure was attributed to a very narrow point, which was the Appellant's fear. However he submitted that this issue was not as narrow as the grounds of appeal sought to argue. With reference to paragraphs [18], [33] and [39] of the decision, he submitted that there was a comprehensive analysis of Dr. Dhumad's report. The judge was mindful of page 20 of the report, as evident from paragraph [47] of the decision. In paragraph [56] the judge made explicit reference to paragraph 8.B.III on page 20. It was clear from the decision that the judge was aware of the case which was being advanced [60].

16. He submitted that reasons were given for the judge's finding in paragraph [79] in the analysis in the paragraphs which followed. The judge had considered the Appellant's failure to disclose this part of his account given that he had already disclosed it elsewhere. The judge was entitled to take into account the fact that the Appellant was unwilling to give evidence to the Tribunal, although he had been willing to give evidence elsewhere, such as to the ICPPG [89]. The judge had set out the chronology [74].

17. The judge had set out the other medical evidence before him [94] to [96]. Mr. Clarke submitted that the judge had rightly questioned how the Appellant was unable to come to the Tribunal to give evidence, but had been able to go to the ICPPG, [81], [83] and [89]. The judge had considered the evidence in the round [90]. He had considered the Appellant's inconsistent actions holistically, and the fact that he had been able to give evidence in other situations.
18. The judge referred to the Appellant's diagnosis of PTSD [86]. He had questioned the fact that he had not brought the evidence of illegal weapons with him, nor provided the photographs which formed the core of his case, [87] and [88]. The judge had looked at the Appellant's sur place activities but these had not been considered in isolation, [92] and [93]. He submitted that a clear finding had been made that the Appellant's sur place activities were a sham.
19. In relation to the TGTE, the evidence indicated that the Appellant was a volunteer, and there was no reference to membership of the TGTE. There was no evidence of his role in the TGTE. There was no evidence that he was actively seeking to revive the Tamil conflict, and he would not be perceived as such. He submitted that the Appellant's attendance at the TGTE was underpinned by his asylum claim alone and that he did not have any separatist agenda.
20. The Appellant would be returning on his own passport. He was not on a stop list. Although he may be on a watch list, GJ had held that this may not lead to anything. He submitted that the Appellant was not a Tamil separatist and did not engage the risk categories in GJ. The circumstances of the appellant in UB (Sri Lanka) v SSHD were unknown. In this case it was clear that the judge had found that the sur place activities were a sham.
21. In response Mr. Lewis submitted that the fact that the Appellant had given evidence to other organisations and had been able to instruct his solicitors did not undermine the psychiatric evidence that he was unfit to give evidence in court. The other scenarios in which he had given evidence were more supportive. The judge had been wholly wrong to reject the evidence of Dr. Dhumad. We were referred to paragraph [91] of the decision. He submitted that a very clear assessment had been provided of the Appellant's inability to attend the Tribunal.
22. In relation to Mr. Clarke's submission that the Appellant's sur place activities were self-serving, we were referred to the case of Danian [2000] Imm AR 96. Even if his activities were self-serving, the onus was on the judge to assess the risk. There had been no assessment of the Appellant's involvement in a proscribed organisation, and the judge had not rejected the clear evidence of this involvement. It was incumbent upon the judge to assess the risk which he had failed to do. The evidence of the Appellant's sur place activities was not limited to the photographs. The Appellant would have come to the attention of the authorities because of his diaspora activities.
23. We reserved our decision which we set out below with reasons.
Decision and Reasons
Ground 1 - assessment of the medical evidence
24. Paragraphs [98] and [99] of the decision state:
"Putting all the evidence together, including from these medical reports in bundle B, and Dr. Dhumad, I find that the appellant's account of the matters that arose in 2012 involving the finding of ordnance and wishing to expose this to the public is not true.
I also find as a result of the above that the appellant's credibility is severely shaken. As to the earlier part of the appellant's account of what had happened to him up until 2009, the account he gave to the authorities when he arrived, an account which at that stage might have met the country guidance requirements and put him at risk of return is also unreliable. I find it significant that the change in the appellant's account has come about since the change in the Sri Lankan country guidance and that the new account or such evidence of it as I have has been manufactured in order to ensure a better chance of success in this appeal."
25. The judge placed significant emphasis upon the late disclosure of the part of the Appellant's account relating to the discovery of the illegal weapons, which was the fundamental basis of the Appellant's claim. It is this late disclosure which, in the judge's opinion, damages his credibility such that he rejects the Appellant's entire account.
26. The evidence before the judge included a psychiatric report from Dr. Dhumad. In this report Dr. Dhumad dealt with the issue of late disclosure at 8.B.III (page 20).
"He stated that he has been avoiding the following reminders of the torture; such as, violent movies, sirens, and people in uniform such as police.
He has stated that he did not previously disclose his involvement with the demining company and the evidence that was obtained through this on account of a fear that he would be returned and this would cause greater danger for him. I am not in a position to comment upon whether there is any objective basis for this fear but it would be entirely consistent with his condition to hold such subjective fears, which appear to be genuine, even if they may be considered to be irrational.
Late disclosure is also consistent with the avoidance of situations associated with the trauma and this should be given proper consideration when assessing his account."
27. In Dr. Dhumad's expert opinion, late disclosure of part of the Appellant's account is consistent with his avoidance of situations associated with the initial trauma. We find that there is in Dr. Dhumad's report an explanation for the Appellant's late disclosure, but little consideration is given to this by the judge.
28. Dr. Dhumad also addressed the Appellant's inability to give evidence to the Tribunal, paragraph 14(e) (page 22):
"In my opinion he is unfit to attend court hearings, or give evidence at present. He is depresses [sic] and anxious, last time he felt suicidal prior to court hearing and wanted to jump off a bridge; he is unable to tolerate intense fear and acts impulsively. Therefore [he] is at risk of self-harm now. In my opinion he needs psychological therapy to help him to manage his fear and intense emotions safely, and when he is able to regulate his emotions and learn healthy coping strategies he would be fit to attend court hearing."
29. It is Dr. Dhumad's professional opinion, having assessed the Appellant, that he is unfit to give evidence at a Tribunal hearing. Although the judge states that he does not hold against the Appellant his inability to give evidence before him [72], throughout the decision he questions the Appellant's ability to give an account of events in some scenarios, but not in others, despite the evidence of Dr. Dhumad as to the reasons for the late disclosure, and his opinion that the Appellant was unfit to give evidence in court.
30. In [74] he states that it appears that the Appellant was able to give Dr. Dhumad a coherent account. In [81] he states:
"Of course I take into account Dr. Dhumad's report and his view that the appellant is medically unable to give evidence before the Tribunal, although it would have been more helpful if Dr. Dhumad could have explained how it was possible for the appellant to re-live his experiences when giving what amounts to a very detailed account in his statement which runs to some eleven typed pages and to him but not to me."
31. In paragraph [90] the judge set out the evidence of the Appellant's involvement in the TGTE. In paragraph [91] he states:
"It would have been more than helpful if Dr. Dhumad could have commented on how the appellant was able in his condition to actively pursue those things, when dealing with whether the appellant could or could not attend a hearing supervised by an experienced judge and give his account of these matters in his own interest."
32. The judge points out areas which he would have liked Dr. Dhumad to address, but he does not address substantively what Dr. Dhumad actually said in his report. The judge had evidence before him that the Appellant was unfit to give evidence at the Tribunal. Although the judge states that he does not hold anything against the Appellant for this inability, this is not borne out by his questioning of the Appellant's ability to give evidence in other scenarios. For example, in paragraph [89] he questions how the Appellant was able to give evidence to the ICPPG. We accept the submission of Mr. Lewis in this regard that it is entirely different giving evidence, for example to the ICPPG, which is a supportive environment, rather than the more confrontational environment of the Tribunal.
33. In paragraph [93] the judge states that it is difficult to square the Appellant's abilities to attend public events "where no doubt his memories of what has happened to him would be refreshed while at the same time apparently being suicidal and endeavouring to resist anything that brought the memories back to him". However he does not make reference to the evidence in Dr. Dhumad's report of the things which the Appellant was actually avoiding, or make findings as to why avoidance of these things meant that the Appellant would not be able to attend the public events to which he refers.
34. In relation to both the late disclosure of his account to the Respondent, and also his inability to give evidence at a Tribunal hearing, the Appellant had provided evidence in the form of a psychiatric report from Dr. Dhumad. We find that the judge failed to take a proper approach to potentially probative aspects of this report. He gave significant weight to the Appellant's delay in disclosing part of his account, which led him to make an adverse credibility finding, but he did not take into account the expert evidence when assessing the reasons for the late disclosure. We find that the failure to consider the late disclosure in the context of the Appellant's mental health, as set out in the medical evidence, is an error of law which renders the credibility findings unsafe.
Ground 2 - Failure to assess the risk arising from TGTE involvement
35. The judge sets out the documentary evidence from the TGTE [90]. He notes that the evidence states that the Appellant has "volunteered in organising several public events in the United Kingdom in support of creating a free Tamil Eelam in Sri Lanka". He does not state that he rejects this evidence, but merely sets it out. Paragraph [92] states:
"Dealing with the appellant's alleged activities in the United Kingdom and whether those sur place activities would be likely to be within the knowledge of the Sri Lankan authorities and whether they would put the appellant at risk I notice a number of photographs where the appellant is standing with a large number of others at demonstrations. In my view, even if those pictures were available to the Sri Lankan authorities it is highly unlikely that they would think any more of them than that the appellant is endeavouring to substantiate an asylum claim in the United Kingdom."
36. Although he states at the outset of this paragraph that he is dealing with the Appellant's alleged activities in the United Kingdom, he makes no reference to his activities with the TGTE referred to in paragraph [90]. He considers the photographs which show attendance at demonstrations, but he does not consider the evidence from the TGTE and the volunteering activities described in that evidence.
37. There is no clear finding in paragraph [92] that the Appellant's sur place activities are a sham, but rather the judge states that the authorities would be highly unlikely to think any more of them than an attempt to substantiate an asylum claim. In any event, even if they were a sham, following Danian this does not affect the necessity to carry out an assessment of the risk caused by such activities. Further, as stated above, the judge has not considered all of the sur place activities in paragraph [92]. In paragraph [93] again there is no reference to the Appellant's activities with the TGTE. The judge refers to the Appellant's ability to attend public events, but there is no reference to his volunteering to help organise such events.
38. The judge acknowledged that he had evidence before him which showed the Appellant's involvement with the TGTE. He summarised the sur place activities with reference to the photographic evidence, but ignored the evidence from the TGTE. He failed to take account of the fact that the TGTE is a proscribed organisation. There is no reference to the fact that it is proscribed, and no assessment of the risk on return to the Appellant as a result of being involved with the TGTE. We find that this amounts to a material error of law.
39. Where the assessment of credibility is a holistic exercise, the errors of law identified are sufficiently material for the credibility findings here to be set aside entirely.
40. We have taken account of the Practice Statement dated 10 February 2010, paragraph 7.2. This contemplates that an appeal may be remitted to the First-tier Tribunal where the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for the party's case to be put to and considered by the First-tier Tribunal. Given the nature and extent of the fact-finding necessary to enable this appeal to be remade, and having regard to the overriding objective, we find that it is appropriate to remit this case to the First-tier Tribunal.

Notice of Decision

41. The decision involves the making of material errors of law and we set it aside. No findings are preserved.

42. The appeal is remitted to the First-tier Tribunal for rehearing.
43. The appeal is not to be listed until the Court of Appeal has given its decision in the case of UB (Sri Lanka) v SSHD (C5/2015/0753).

Direction Regarding Anonymity - 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 Date 23 September 2016
Deputy Upper Tribunal Judge Chamberlain