Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/07833/2014
AA/13325/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision & Reasons Promulgated
On 18 January 2018
On 22 January 2018

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

ASA
ABD
(ANONYMITY DIRECTIONS MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms Wilkins, Counsel
For the respondent: Ms Aboni, Senior Home Office Presenting Officer

DECISION AND DIRECTIONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellants. This prohibition applies to, amongst others, all parties.

1. I have anonymised the appellants' names because this decision refers to their asylum claims and medical evidence regarding the second appellant ('A2').

2. The first appellant ('A1') and A2 are brothers. They have provided distinct accounts in support of their respective claims for asylum, but their appeals were linked because of some common features between them. In summary, they both fear the Taliban for partly overlapping reasons. A2 describes generalised violence and killings in his home area, as well as being frequently beaten, taking part in executions, being threatened with beheading and a period of detention, during which time he was seriously harmed. These events took place when he was a teenager or young man. He came to the UK and claimed asylum in 2013, when he was 21.

3. The appellants appeal against a decision made by First-tier Tribunal ('FTT') Judge Gladstone dismissing their appeals on protection and human rights grounds. She comprehensively rejected the appellants' account and found their evidence and the evidence relied upon in support of their claims, such as corroborating evidence from witnesses and a country expert report to be unreliable.

Vulnerability of A2

4. I begin this decision by considering detailed evidence from the Medical Foundation for the Care of Victims of Torture ('MF') regarding A2's mental health. In a report dated 27 January 2017, Ms Salter, A2's treating psychotherapist, describes him as having engaged in the clinical services of the organisation since 4 September 2015. By the time of the hearing he had attended 43 psychological therapy sessions. A consultant psychiatrist diagnosed him as having PTSD and he continued to take medication such as Olanzapine and Citalopram. He was supported by a mental health support worker in the community.

5. The report describes A2's poor mental health in detail including specific examples over an extended period in support of the diagnosis of PTSD. He is described as a highly vulnerable young man, who has consistently suffered from flashbacks and dissociative episodes, consistent with 'complex PTSD'. Some of his symptoms appear as life threatening when he has been unable to distinguish between memories of past trauma and what is actually happening. He has suffered from suicidal ideation and self-harming behaviour. Ms Salter concludes the report by setting out her significant clinical concerns should he be asked questions about his history outside a clinical setting, such that he is unfit to give evidence.

6. In a letter dated 28 April 2017 to the Asylum Support Housing Service in Manchester, Ms Salter summarised A2's clinical presentation as set out in her report and supported the application for A1 to be housed with him.

7. At the beginning of the hearing before me, I made it clear to the parties that A2 should be treated as a vulnerable appellant in accordance with the Joint Presidential Guidance Note No 2 of 2010 ('the Guidance'). I noted that the MF evidence was now dated, but given the significant concerns in the report, the fact that A2 had already taken part in 43 psychotherapy sessions and the view of Ms Salter that he would still require treatment for many years to come, it remained appropriate to continue to regard him as vulnerable. Ms Aboni entirely agreed that it was appropriate to regard A2 as a vulnerable appellant.

SSHD's concession

8. I did not need to hear from Ms Wilkins because Ms Aboni quite properly accepted the following at the beginning of the hearing:

(i) A2 should have been treated as a vulnerable appellant by the FTT;
(ii) The failure to do so meant that the FTT failed to apply the Guidance when assessing the evidence, and failed to make credibility findings with the Guidance in mind;
(iii) The MF report should have been treated as 'expert evidence' in accordance with 3.3 of the respondent's 2015 asylum policy instruction on MF reports ('the API');
(iv) The FTT failed to properly address the detailed evidence in the carefully prepared MF report regarding A2, and its credibility assessment contained errors of law as a result;
(v) The FTT committed material errors of law in its approach to the evidence of A2;
(vi) It was difficult to separate these errors from the credibility findings in relation to A1;
(vii) In the circumstances, it was appropriate to set aside the decision in relation to both appellants and remit the appeals to the FTT.

Legal framework

9. In AM (Afghanistan) v SSHD [2017] EWCA Civ 1123, Sir Ernest Ryder, the Senior President of Tribunals, considered an appeal involving a young man from Afghanistan with a claimed traumatic history. In AM's case the psychologist offered advice as to how AM could obtain effective access to justice given his psychological difficulties. It was agreed before the Court of Appeal that insufficient steps had been taken to ensure that the proceedings were fair. The instant case differs from AM because the clear advice from the psychotherapist here was that the appellant was unfit to answer any questions within a court room setting. A2 nonetheless remained a vulnerable appellant, entitled to a fair assessment of the evidence adduced on his behalf in light of the relevant Guidance. Ryder LJ said this in AM (my emphasis):

"30. To assist parties and tribunals a Practice Direction 'First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses', was issued by the Senior President, Sir Robert Carnwath, with the agreement of the Lord Chancellor on 30 October 2008. In addition, joint Presidential Guidance Note No 2 of 2010 was issued by the then President of UTIAC, Blake J and the acting President of the FtT (IAC), Judge Arfon-Jones. The directions and guidance contained in them are to be followed and for the convenience of practitioners, they are annexed to this judgment. Failure to follow them will most likely be a material error of law. They are to be found in the Annex to this judgment.

31. The PD and the Guidance Note [Guidance] provide detailed guidance on the approach to be adopted by the tribunal to an incapacitated or vulnerable person. I agree with the Lord Chancellor's submission that there are five key features:
a. the early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing through the use of a CMRH or pre-hearing review (Guidance [4] and [5]);
b. a person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that "the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so" (PD [2] and Guidance [8] and [9]);
c. where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure their welfare is protected before and during the hearing (PD [6] and [7] and Guidance [10]);
d. it is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing their evidence (Guidance [10.2] to [15]); and
e. relevant additional sources of guidance are identified in the Guidance including from international bodies (Guidance Annex A [22] to [27]).

10. At [33] Ryder LJ observed that the emphasis on the determination of credibility in an asylum appeal is such that there is particular force in the Guidance at [13] to [15], which states as follows:

"13.The weight to be placed upon factors of vulnerability may differ depending on the matter under appeal, the burden and standard of proof and whether the individual is a witness or an appellant.
14.Consider the evidence, allowing for possible different degrees of understanding by witnesses and appellant compared to those are not vulnerable, in the context of evidence from others associated with the appellant and the background evidence before you. Where there were clear discrepancies in the oral evidence, consider the extent to which by mental, psychological or emotional trauma or disability; the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity.
15.The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered the identified vulnerability had in assessing the evidence before it and thus whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof. In asylum appeals, weight should be given to objective indications of risk rather than necessarily to a state of mind."

Error of law

11. Ms Aboni was correct to make the concessions she did. Given that the respondent agrees that the decision must be set aside and remitted to the FTT, I can set out my reasoning briefly. In so doing, I recognise the FTT's decision is extremely detailed. It runs to 48 pages and contains 295 paragraphs making wide ranging adverse credibility findings. It is not necessary for me to address each of the grounds of appeal regarding the credibility findings or indeed the other findings made by the FTT, because there has been such a fundamental error of approach to the approach to A2, a vulnerable appellant, and the MF evidence in support of this, that the entire decision must be set aside. Ms Aboni accepted that ground 6 (relating to the FTT's approach to the MF report) has been made out and it is unnecessary to consider the other grounds of appeal. In particular:

(i) All the medical evidence pointed in one direction: A2 should have been treated as a vulnerable appellant by the FTT.

(ii) The failure to do so meant that the FTT failed to apply the Guidance when assessing the evidence, and therefore failed to take account of the importance of the matters set out at 10.3, 14 and 15 of the Guidance. Failure to follow the Guidance in a case such as this constitutes an error of law.

(iii) The FTT failed to properly address the detailed evidence in the carefully prepared MF report regarding A2, and failed to take into account A2's vulnerability as particularised in the report, when making adverse credibility findings and in rejecting his account of past events because of alleged inconsistencies. The FTT "noted" the report and some of its contents but failed to make any clear findings as to whether the assessment and conclusions were accepted. By way of example, the MF report set out a number of possible explanations for A2's ability to provide detailed information at the time of his asylum interview, some of which was inconsistent to later accounts - PTSD is known to fluctuate; avoidance is a core symptom and disclosure of his history is difficult - but the FTT failed to address these. In addition, contrary to the FTT's findings, there was evidence that shortly after the asylum interview in 2013, Dr Farringdon recorded that A2 had PTSD symptoms.

(iv) It is difficult if not impossible to separate or compartmentalise these errors in approach regarding the evidence relating to A2 from the credibility findings in relation to A1. The former have inevitably been taken into account when making the overall credibility assessment of A1, given the overlapping aspects of their respective claims.

Disposal

12. I have had regard to para 7.2 of the relevant Senior President's Practice Statement and the nature and extent of the factual findings required in remaking the decision, and I have decided that this is an appropriate case to remit to the FTT. This is because completely fresh findings of fact are necessary.

13. Ms Aboni acknowledged that the API suggests that the case should be reviewed when a MF report is provided after the decision to refuse asylum is made, as in this case. Given the appellant's vulnerability, it would be very helpful if the respondent can review the MF evidence already available and any relevant updating evidence provided by A2's solicitors, within a period of three months, and in advance of a case management hearing in the FTT, which I consider to be necessary in a case such as this.
Decision
14. The decision of the FTT involved the making of a material error of law. Its decision cannot stand and is set aside.
15. The appeal shall be remade by the FTT de novo.

Signed:

Ms M. Plimmer
Judge of the Upper Tribunal

Date:
18 January 2018