Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07904/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 23 June 2016
On 26 September 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

KS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Khan, instructed by Ison Harrison Limited
For the Respondent: Mr Diwnycz, a Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, KS, is a female citizen of Nepal who was born in 1969. The appellant had appealed to the First-tier Tribunal (Judge Saffer) against a decision of the respondent dated 29 April 2015 to remove her from the United Kingdom as an illegal entrant. The First-tier Tribunal, in a decision promulgated on 13 August 2015, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. I find that the decision should be set aside. I have reached that decision for the following reasons. At [35] Judge Saffer (who generally did not believe the appellant's account of past events in Nepal) stated that he did "accept that the appellant has established that it is reasonably likely that she was raped." That finding should have alerted Judge Saffer to view the appellant's evidence and, in particular, to assess her credibility with particular care. The Joint Presidential Guidance Note Number 2 of 2010 (Child, Vulnerable Adult or Sensitive Appellant Guidance) urges judges to:
'Record whether the Tribunal has concluded that the appellant ... is ... 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 that the appellant established his or her case to the relevant standard of proof.' [15]
However, Judge Saffer did not make any reference to the guidance note (which is, of course, not in itself an error of law) but nor does he appear to have applied the principles contained in the note including that which I have set out above. Instead, at [29] the judge wrote:
"The appellant's account as stated in her interview was littered with confusing and incoherent information. Parts of her evidence were equally incoherent and confusing. The concession at the outset of her interview was reconsidered by the respondent after that interview. The respondent was entitled to do so. It was not for me to speculate as to her [the appellant's] mental health. There has been ample opportunity to obtain medical evidence rather than just produce appointment letters or medical records. There is no medical evidence to suggest that the appellant's confusion or inconsistencies are related to her claim to have been raped."
3. As Miss Khan, for the appellant, pointed out there are a number of instances in the appellant's Asylum Interview Record where it is recorded that she appeared "traumatised" and became "distressed." Those instances are not referred to by the judge. The judge appears to have taken a somewhat binary approach to the assessment of the evidence; either the appellant could produce independent medical evidence which might show that her memory or cognitive ability had been impaired by her experiences or she could not. If the latter, the judge appears to have considered it correct to ignore the fact that she had been raped as claimed and the effect that rape might have upon her mental condition.
4. Miss Khan relied upon JL (Medical Reports - Credibility) China [2013] UKUT 00145 (IAC) in particular at [26] where the Tribunal noted that it was
"Of particular importance to see what findings, if any, the judge made about the possible relevance to these of the appellant being a vulnerable person. In the case of a vulnerable person it is incumbent upon the Tribunal Judge to apply the guidance given in the Joint Presidential Guidance Note Number 2 2010 ..."
I repeat the failure of the judge to refer to the guidance note in terms is not an error of law; however, his failure to depart from the principles contained in the note, to ignore the evidence of stress which the appellant had experienced during her asylum interview and, in effect, to ignore entirely her distressing experiences because she had not produced medical evidence to show that those experiences had affected her mental state did lead the judge into legal error. I find that the decision should be set aside and the matter returned to the First-tier Tribunal where fresh findings of fact may be made. None of the findings of fact of the First-tier Tribunal shall stand.
Notice of Decision

The decision of the First-tier Tribunal promulgated on 13 August 2015 is set aside. None of the findings of fact shall stand. The appeal is remitted to the First-tier Tribunal (not Judge Saffer) for that Tribunal to re-make the decision.

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 their 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

Upper Tribunal Judge Clive Lane