Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07518/2014

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 10TH JANUARY 2017
On 18TH JANUARY 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE
G A BLACK

Between

Ms Mariam Jasmine KOne
NO ANONYMITY ORDER MADE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford, Counsel instructed by Fadiga & Co
For the Respondent: Mr S Whitwell (Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant in this matter is Ms Kone and she claims to be an Ivorian national. I shall refer to the parties as the "appellant" and to the respondent as "the Secretary of State". This is an error of law hearing that comes before me for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge B. Andonian) (FtT) promulgated on 31st October 2016 in which he dismissed the appeal on all grounds .
Background
2. The appellant claimed asylum on the grounds that she was a victim of forced marriage and trafficking to the UK. After entry into the UK in 2006 she made various applications under the EEA Regulations which were dismissed. Under a different name she then applied for asylum in August 2014. She stated that her husband lived in the Ivory Coast and was rich and influential. She had a daughter born in 2003. She stated that she had been the victim of abuse both physical and sexual from her husband and she had undergone Female genital mutilation (FGM). She and her daughter escaped with the help of an agent to Ghana and she was given a French passport in the name of ML. In the UK she met and married a man LB who abused her and injured her shoulder. She turned to prostitution as she was unable to work as a hairdresser because of the injury to her shoulder.
3. The appellant relied on a country expert report from Professor B Lawrence and medical evidence from Dr Beeks at the Helen Bamber Foundation.
4. The Secretary of State did not accept any aspect of her claim and in particular relied on section 8 Asylum & Treatment of Claimants Act 2004 as to credibility; the 8 year delay in making a claim for asylum. It was not accepted that she was from the Ivory Coast given her failure to give correct details about the country. She had practised deception and used different identities.
FtT decision and reasons
5. The FtT found that appellant's claim to be lacking in credibility in its entirety. It found that she was not a national from the Ivory Coast and that her Ivorian passport was not a reliable document. It considered that the appellant previously stated that she was from Senegal and she had no fear of return to that country [32]. It found that she had used deception and various identities and did not accept her explanation that she had been forced to follow the instructions given to her by her husband in the UK and she had limited intellectual capacity and education. The FtT rejected the appellant's claim that she was a victim of torture (sic). The FtT considered the expert report to be lacking in that whilst concluding that there was "a possibility" that the appellant was a victim of trafficking, there was insufficient evidence before him to make a conclusive determination and he had suggested that another expert be consulted. [29] The FtT found that the expert had not met the appellant and attached little weight given that the report was written with reference to documentary material only. The FtT found that there was no medical evidence of any injuries sustained by the appellant as a result of abuse from her husband [13]. It found no medical evidence to show that her shoulder was so damaged that she was unable to work as a hairdresser and considered that the physical nature of working as a prostitute would create similar limitations to working as a hairdresser [17]. The FtT found that she had not worked as a prostitute [33] and that she would not be forced to work as a prostitute if returned to the Ivory Coast.

Grounds of application for permission
6. The appellant's grounds are summarised as follows. The FtT
a) failed to assess the evidence that her father was unwilling to intervene in domestic abuse in the light of the background evidence as to prevalent attitudes in the Ivory coast.
b) ignored the report from the Helen Bamber Foundation.
c) failed to make a decision on trafficking which infected the findings made as to her marriage and behaviour in the UK including deception and false documents in relation to the immigration authorities.
d) failed to take into account the report of Professor Lawrence in assessing credibility as a whole.
e) wrongly recorded the appellant's evidence of facts (d & h).
f) failed to adjourn the hearing to allow for further investigation into trafficking.
Permission to appeal
7. Permission was granted by FtT Judge Ford on 28th November 2016 on the ground (b) that the FtT had ignored the medical evidence from the Helen Bamber Foundation. As to the remaining 5 grounds FtT Judge Ford stated that these grounds were not arguable when consideration was given to the assessment of credibility and to the decision as a whole. In particular the appellant had ample opportunity to obtain evidence as to trafficking in 2014 and was assessed by the Helen Bamber Foundation. It was not arguable that the FtT failed to ensure that credibility matters were put to the appellant at the hearing.
Submisssions
8. I heard preliminary submissions from both representatives as to the scope of the application. Permission had clearly been granted in respect of one ground. Ms Radford sought to rely on all grounds of appeal arguing that the appellant had not been provided with proper notice indicating the need to renew the application in respect of all grounds. Mr Whitwell argued that it was clear that permission had been granted only on one ground in relation to the medical evidence, and that the Upper Tribunal should not hear arguments on the other grounds. I allowed Ms Radford to proceed to deal with the main ground for which permission had been granted. Mr Whitwell responded. Thereafter I heard brief submissions on the remaining grounds.
9. Mr Whitwell relied on the Rule 24 response arguing that given the plethora of negative credibility findings the contents of the medical report could not outweigh the findings made by the FtTJ and as such the error was not material.
10. Ms Radford relied on the detailed grounds and argued that the main ground was a material error and that it infected all the other findings made, and the evidence was capable of demonstrating that the FtT could have come to an alternative conclusion or reach a different outcome.
Discussion and conclusion
11. It is clear from the decision and reasons that the FtT failed to take into account the medical report from Dr Beeks from the Helen Bamber Foundation. The FtT further found that there was no medical evidence before the FtT to support the appellant's claim of domestic and sexual abuse including genital injuries, and further that there was no evidence of any injury to her shoulder. It is accepted by the Secretary of State that no reference was made to the report of Dr Beeks. These errors are errors in law as there was expert medical evidence before the FtT dealing with significant matters in her appeal. I now consider whether or not the errors are material to the decision made.
12. The report prepared by Dr Beek, whose expertise has not been disputed, concludes that, " The overall picture of past traumatic events with consequent post traumatic stress disorder, evidence of female genital mutilation and of assaults causing scars is highly consistent with the history given of childhood abuse, genital mutilation , rape and domestic violence. "The appellant stated that she does not know if she was or was nota victim of trafficking, as recorded in the medical report.
13. Mr Whitwell argued that the error was not material having regard to the credibility findings as a whole, the finding that the appellant was not from the Ivory Coast, and its conclusion that the appellant was not a victim of trafficking. The expert report from Professor Lawrence was inconclusive on that issue and in a supplementary decision the respondent had found that she was not a victim of trafficking.
14. Ms Radford submits that the medical report which details findings "highly consistent" with the claimed attributions and makes a diagnosis of PTSD, is material evidence going to the core of the appellant's account that she is a victim of domestic violence, sexual abuse, subject to FGM and forced marriage. Her skeleton argument argues that the appellant's account is also supported by background material on the Ivory Coast. I accept that this is the position.
15. I am satisfied that the evidence from Dr Beeks of the Helen Bamber Foundation was material to the core of the appellant's account. The medical evidence was relied on by the appellant and reference made to it in the skeleton argument before the FtT. The report is capable of corroborating the appellant's claim as to physical and sexual abuse in the Ivory Coast and physical injury while in the UK from her second husband. In the event that the FtT had taken this evidence into account in reaching credibility findings it had the potential to impact on all other aspects of her claim including her poor immigration history and the evidence as to her nationality. Whilst considering that the decision and reasons was detailed and comprehensive in some regards, I am satisfied that it was flawed by the failure to consider the expert medical evidence in order to reach its findings as to credibility and or to given cogent reasons why such evidence was rejected. The FtT pursued neither avenue and had not considered the evidence as all which it was bound to do. I reject the argument put by Mr Whitwell as to materiality because the failure arguably has infected the decision as a whole. In view of my decision I make no further observation as to the pursuance of the remaining grounds of appeal.

Decision
16. There is a material error of law in the decision which shall be set aside.
No findings of fact are preserved.
The appeal is to be remitted for rehearing before the FTT (excluding FtT Andonian) at Taylor House on a date and time to be arranged.

Signed Date 16.1.2017

GA Black
Deputy Judge of the Upper Tribunal

NO ANONYMITY ORDER
NO FEE AWARD

Signed Date 16.1.2017

GA Black
Deputy Judge of the Upper Tribunal