Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07607/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 2nd December 2016
On 22 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LEVER

Between

S D
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Nicholson of Counsel
For the Respondent: Mr McVeety

DECISION AND REASONS

Introduction
1. The Appellant born on 1st January 1994 is a citizen of the Democratic Republic of Congo. The Appellant was represented by Mr Nicholson of Counsel. The Respondent was represented by Mr McVeety, a Presenting Officer.
2. The Appellant had made application for asylum on 30th January 2013 and the Respondent had refused that application on 22nd April 2015. The Appellant had appealed that decision and her appeal was heard at Manchester on 12th October 2015 by Designated Judge of the First-tier Tribunal McClure. The judge dismissed the Appellant's appeal on all grounds.
3. The Appellant sought application for permission to appeal that decision on four grounds. On 15th February 2016 Designated First-tier Tribunal Judge McCarthy found an arguable legal error in respect of the second and third grounds but found no merit in the first and fourth grounds. A further application for permission to appeal was then made such application being to extend the Grounds of Appeal to the original first and fourth points. A Judge of the Upper Tribunal on 21st March 2016 found that there was no merit in the first ground but found that arguably there was merit in the fourth ground.
4. The Respondent opposes the grant of appeal by their letter of 7th April 2016.
5. The matter comes before me firstly to decide whether or not an error of law was made by the First-tier Tribunal.
Submissions on Behalf of the Appellant
6. Mr Nicholson relied upon the three grounds upon which different dates permission to appeal had been granted. Firstly it was submitted that the judge had failed to pay any or any sufficient regard to the medical evidence in this case which went to an issue of credibility of the Appellant's case. Secondly it was submitted that the judge had given inadequate attention to the Appellant's fear that she would be perceived as Rwandan and therefore at risk on return. Thirdly it was submitted the judge had failed to give full consideration to the position of the child in this case whom it was said was a British citizen.
Submissions on Behalf of the Respondent
7. Mr McVeety accepted that there was force in the submissions raised in respect of the first and third grounds when looking at the decision. It was agreed that those grounds did disclose a potential material error of law such that the matter needed to be reconsidered.
8. I provide below a brief decision with reasons.
Decision and Reasons
9. As part of the Appellant's evidence she had presented to the Respondent a lengthy Medical Foundation report prepared by a psychologist Dr Bashir. That report had reached conclusions regarding her mental state consistent with PTSD and a severe depressive episode. The psychologist had concluded that the findings of the report was consistent with the short and long-term consequences of rape that had been described by the Appellant as part of her account on events in the DRC. The judge had not found the Appellant to be credible and had not accepted her account of events in the DRC including her account of detention where it is said the rape took place. At paragraph 53 of the decision the judge had noted that he had taken account of the psychologist's report when considering the evidence as a whole. Unfortunately thereafter there is no mention of the report or any assessment of that report. Whilst it may well be the judge took the report into account, given the nature of that report and the strength of its findings it was necessary in dealing with issues of credibility particularly to the lower standard of proof to deal with the findings of the report or at the very least to set the findings of the report within the context of all the other evidence if the decision was to be reached that was against the conclusions of that medical report. Unfortunately that process did not appear within the written decision although it may well have been done by the judge. In circumstances where there is on the face of it no engagement with a detailed medical report there is a perception that an error of law has been made. When the medical report is supportive of a medical condition consistent with the Appellant's account which in turn is a central feature of both her fear and the issue of credibility then a silence upon that report and no engagement with the report amounts to a material error of law.
10. In terms of the third matter raised by Mr Nicholson it was submitted that inadequate attention had been given to the position of the Appellant's child who was said to be a British citizen. The judge had considered the position of the child at paragraph 70 onwards. It is noteworthy at paragraph 70 the judge accepted the child was a British citizen having gained that citizenship through his father who was himself granted British citizenship in 2012. The judge provided reasons why he did not find it unreasonable for the child to accompany the mother (Appellant) back to the DRC. However there does not appear to have been perhaps the focus on the circumstances and indeed case law regarding the removal or de facto removal of a British citizen child from the UK. It is accepted that there was an error in this aspect of the case.

Notice of Decision
11. I find that a material error was made by the judge in this case and uphold the appeal against the decision of the First-tier Tribunal.
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 her or any member of her 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 22/12/2016

Deputy Upper Tribunal Judge Lever