Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07229/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 February 2017
On 21 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

AES
(ANONYMITY DIRECTION MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms B Jones of Counsel
For the Respondent: Mr P Armstrong, a Home Office Presenting Officer

DECISION AND REASONS

1. 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.
2. The appellant is a national of Sri Lanka who was born in 1988. The appellant entered the United Kingdom in 2008 on a student visa. The appellant returned to Sri Lanka in July 2013 to attend his sister's wedding. He returned to the United Kingdom in September 2013. He claimed asylum seven days after re-entering the United Kingdom. He claimed that he feared persecution by the Sri Lankan authorities. He claimed that he was captured, tortured, escaped and returned to the United Kingdom. He claimed that the authorities perceived him to be a supporter of the LTTE. The respondent refused the appellant's claim for asylum on 7 April 2015. The respondent did not accept that the appellant's account was credible and therefore did not accept that he was in need of protection. The respondent also refused the appellant's claim under Article 8 of the European Convention on Human Rights.
The appeal to the First-tier Tribunal
3. The appellant appealed against that decision to the First-tier Tribunal. In a decision promulgated on 24 September 2016 First-tier Tribunal Judge Telford dismissed the appellant's appeal. The judge did not find the appellant's account was credible and dismissed the appellant's asylum appeal. The Article 8 claim was not pursued by the appellant before the First-tier Tribunal and the judge treated this as withdrawn.
The Appeal to the Upper Tribunal
4. The appellant applied for permission to appeal to the Upper Tribunal and on 11 January 2017 Designated First-tier Tribunal Judge Macdonald granted the appellant permission to appeal. Thus, the appeal came before me.
The Hearing before the Upper Tribunal
5. The grounds of appeal set out four separate grounds. Ground 1 asserts that the judge failed to have regard to the medical report of Dr Dhumad, a consultant psychiatrist, dated 17 April 2016. This report was relied on at the appeal hearing on 20 April 2016 and was canvassed in detail by counsel in closing submissions. Dr Dhumad diagnosed the appellant with post traumatic stress disorder and a severe depressive episode. Dr Dhumad stated that the appellant's presentation is consistent with his account of torture and rape and specifically considers and rejects other possible causes for the appellant's condition. He also explicitly considers and rejects the possibility that the appellant is feigning his symptoms. It is acknowledged that whilst a judge is entitled to reject a clinical diagnosis supported by expert evidence, she must give clear reasons for doing so. It is asserted that the judge did not give any reasons but more importantly, that there is no reference to Dr Dhumad's report anywhere in the determination. It is submitted that it is possible that the long five months' delay in promulgation of the determination led to the judge overlooking this important evidence. It is asserted that it cannot rationally be said that proper consideration of Dr Dhumad's report would have made no difference to the outcome of the appeal.
6. Ground 2 asserts that the judge erred by failing to assess the appellant's evidence by reference to the Upper Tribunal's findings in the case of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319. It is asserted that the case of GJ makes it clear that a risk to a person of interest to the Sri Lankan authorities arises not at the airport but upon return to their home area. The judge erred in finding that the appellant's account was undermined because he was able to pass through the airport on return to Sri Lanka in 2013. It is submitted that the appellant's account is entirely consistent with the findings of the Upper Tribunal in GJ. The judge erred further in finding that the appellant's account was undermined because he was able to secure his release from detention in 2006 through bribery and was able to leave Sri Lanka in 2013 using an agent and through payment of a bribe.

7. Ground 3 asserts that the judge erred in his approach to the assessment of whether or not the appellant is a vulnerable witness. The judge assessed the appellant's vulnerability not by reference to the expert medical evidence before him, including the psychiatric report of Dr Dhumad, but by reference to his own non-expert impressions of the appellant when giving evidence. The judge failed to apply the the Joint Presidential Guidance Note No 2 2010, Child, vulnerable adult and sensitive appellant guidance. It is asserted that this error was material to the judge's findings on credibility which it is asserted relied on alleged vagueness and inconsistency in the appellant's account.
8. It is asserted in ground 4 that the judge erred in the assessment of Dr Martin's evidence. The judge mischaracterises Dr Martin's evidence as demonstrating consistency with the appellant's account. It is asserted that Dr Martin's overall evaluation of the scarring was that it was typical of the attribution given by the client. The judge failed to engage with these findings. Further, the judge gives inadequate reasons for his finding that the appellant's scars may well be self-inflicted or inflicted by other means than torture.
9. A further ground of appeal was added. The hearing took place on 20 April 2016 but the decision was not promulgated until 26 September 2016 - a substantial delay of over 5 months. It is acknowledged that there must be a nexus between the delay and the safety of the decision.
10. Ms Jones submitted that Dr Dhumad's report does not appear to have been referred to anywhere in the decision of the judge and that there is no indication that the conclusion of the report has been taken into account in the assessment of the appellant's claim overall. She submitted that there has to be an explanation as to why the judge did not consider that the appellant was suffering from PTSD. She asserted that the doctor gives a very clear conclusion that it is not simply as a result of the appellant growing up in a conflict zone, the doctor's clinical view was that the appellant's illness and presentation was consistent with the experiences that he had described. There is simply no mention at all in the determination of the evidence of Dr Dhumad. In relation to ground 4 she submitted that Dr Martin gave a very careful considered opinion. The paragraph that the judge refers to is a standard paragraph as it is impossible to rule out self-infliction by proxy. She submitted that the judge's approach was not in line with the case of KV (scarring - medical evidence) Sri Lanka [2014] UKUT 230. Although self-infliction by proxy must be considered the judge, in this case, has not given any reasons at all as to why he rejects Dr Martin's report. With regard to ground 3 she submitted that the judge only makes reference to the GP's evidence and therefore it is clear that the judge did not take into consideration Dr Dhumad's report. There is no mention of the Presidential Note which must be taken into consideration. She submitted that there is an internal contradiction within the decision, at paragraph 13 the judge finds that the appellant's evidence was given at length and in detail and with a fair degree of complexity attached to it, and yet at paragraphs 23 and 25 the judge found that he was inconsistent in his oral evidence and that there were inconsistencies, implausibility and vagueness. The judge has not given any reason as to why he found the evidence vague. She accepted that she was required to establish a nexus between the delay and an error of law in the Tribunal's decision. No reason for the delay has been set out. The oral evidence of the appellant is not set out anywhere in the decision and although the judge indicates that he will refer to it there is very little, if any, detail about the evidence given by the appellant. In relation to ground 2 she submitted that the judge found that it undermined the appellant's credibility that he was able to pass through the airport. She submitted that this is entirely contrary to paragraph 145 of GJ. She also submitted that the judge suggests that even if he was detained and tortured he would not be at risk on return. However, if the appellant had been tortured this was post ending of the civil war and the judge had not explained why he would no longer be of interest to the authorities. Relying on GJ the judge focused on the current categories of risk without taking into consideration that if the appellant had been at risk post the ending of the civil war, he would fall within the first category in GJ.
11. Mr Armstrong accepted that there was no reference to Dr Dhumad's report in the decision and that there had been a lengthy delay in the promulgation of the decision. He submitted, however, that the absence of the reference to Dr Dhumad's report and the delay in promulgation were not material. He submitted that at paragraphs 9 and 10 the judge referred to other medical evidence and therefore may not have felt it necessary to also go through the evidence of Dr Dhumad. He submitted that the starting point was that the judge found the appellant's account incredible. The judge was aware of GJ as he referred to this in paragraphs 11 and 7. He submitted the appellant's case had never been that he was engaged in activities in the UK. He submitted that the judge did not accept that there was a post-conflict arrest and was entitled to take into account that the appellant went through the airport without incident. He submitted that the judge clearly found that the appellant's visit to the GP just before the hearing was self-serving as he last saw the GP in 2015. The judge was entitled to find that it affected the appellant's credibility adversely that he did not claim asylum at the airport when he returned to the UK. The determination did not consist of material errors. There must be a nexus between the delay and the error of law.
Discussion
12. I consider grounds 1 and 3 together - the judge failed to take Dr Dhumad's report into account and to consider the appellant as a vulnerable witness and that the judge applied his own non-expert impressions of the appellant. The judge set out:
"13. The most immediate evidence I had to consider and weigh was that in relation to his being a vulnerable witness due to depression he had complained of in 2013. I found that today he had, if depressed in 2013, made a remarkable transformation".
13. The judge then considered in some detail (4 paragraphs) the demeanour of the witness, his ability to give evidence and medical evidence. There is no mention of Dr Dhumad's report of April 2016 and the diagnosis of post traumatic stress disorder and severe depression. I do accept that it appears that the judge in remarking that the appellant 'had made a remarkable transformation' may have been substituting his own view of the appellant's state of mind for that of the expert's. Whilst it is certainly open to a judge to find that notwithstanding a medical expert's opinion that the appellant appeared well and able to give evidence, it is of concern that the judge has commenced this analysis with what appears to be his own assessment of the appellant's mental health. The judge was correct to consider in the detail that he did the manner in which the appellant was able to give his evidence. In paragraph 14 the judge considers the evidence provided by the appellant's GP including specific details about when he had seen the GP and medication that has been prescribed. Nowhere in this analysis is there any reference to Dr Dhumad's report. Whilst the judge was entitled to arrive at the conclusion that the appellant did not present as a vulnerable witness, the failure to take into consideration Dr Dhumad's report, or, if the judge did so, to provide reasons as to why he did not consider that notwithstanding the expert's opinion, he did not consider the appellant to be a vulnerable witness. I also find that the judge erred in law by failing to take into consideration the evidence of Dr Dhumad when assessing the credibility of the appellant's account. This is a material error of law. It is not clear that the judge would necessarily have arrived at the same conclusion had he taken that evidence into consideration.
14. In respect of ground 2 in GJ the Upper Tribunal found at headnote 6 and paragraph 275:
"(6) There are no detention facilities at the airport. Only those whose names appear on a "stop" list will be detained from the airport. Any risk for those in whom the Sri Lankan authorities are or become interested exists not at the airport, but after arrival in their home area, where their arrival will be verified by the CID or police within a few days.
275?We take particular account of his view that the seriousness of any charges against an individual are not determinative of whether a bribe can be paid, and that it is possible to leave through the airport even when a person is being actively sought."
15. The First-tier Tribunal set out:
"20. Furthermore, his accounts of simply slipping through the security in Sri Lanka to return by scheduled air travel first to the country where he may be at risk for a wedding and then secondly back to the UK are I find not made out on the evidence. He would have been wary of attendance at the Sri Lankan main airport if he feared return when he first came to the UK and his reason that the war ended all risk to him in 2009 as a reason for his thinking he was not at risk undermines his credibility. His then later claim that in fact he was at risk because he was kidnapped is false logic in that if he were at risk then, he would have been at risk when entering the country at the airport going home, attending a wedding (which he later disavowed) and then leaving the country. His logic was at most circular and unsupported.
21. I do not accept that he was able to escape the country by air by having a relative pay a bribe to a person unknown. I do not accept his evidence that when he was kidnapped by persons unknown in an almost undetectable manner that his relatives were able to somehow assist him to escape".
16. The judge considered incorrectly that a person would be at risk at the airport if the authorities were interested in him whereas it is clear from GJ that the risk (provided a person is not on a stop list) will be in the home area. It is not clear whether the judge rejected that it is possible to secure release on the payment of a bribe or that it was simply not made out on the evidence. The judge did not set out the reasons why he did not accept the appellant's evidence. Given the error in respect of risk at the airport I cannot be sure that the judge applied GJ in respect of the prevalence of bribery correctly. The findings of the judge are not consistent with the Country Guidance in GJ. This error could have made a difference to the judge's assessment of risk on return.
17. I do not need to go on to consider ground 4 (that the judge erred in the assessment of Dr Martin's evidence). I have found that the errors are material errors of law. I am unable to preserve any findings as the error in respect of assessment of credibility goes to the core of the claim. The appeal will therefore need to be heard de-novo. The scarring expert report will necessarily form part of the assessment of credibility. As I have found a material error of law on grounds 1, 2 and 3, ground 5 (the lengthy delay in promulgation) does not need to be decided.
18. The appellant informed the First-tier Tribunal that the Article 8 claim was no longer being pursued. The First-tier Tribunal treated it as withdrawn. There was no appeal against that decision.

Decision
19. For the reasons given above I find that there were material errors of law. The decision of the First-tier Tribunal is set aside. I considered the Practice Statement concerning transfer of proceedings. I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such, having regard to the overriding objective, that it is appropriate to remit the matter to the First-tier Tribunal.
20. I remit the case to the First-tier Tribunal for a de novo hearing before any judge other than Judge Telford. This case is to be heard at Taylor House on the next available date.
Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error of law. I set aside that decision pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 ('TCEA'). I remit the case to the First-tier Tribunal for the case to be heard before a different judge pursuant to section 12(2)(b) and 12(3)(a) of the TCEA. The case is remitted to the First-tier Tribunal to be heard on the next available date at Taylor House before any judge other than Judge Telford.

Signed P M Ramshaw Date 20 February 2017

Deputy Upper Tribunal Judge Ramshaw