Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08031/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 February 2016
On 7 March 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MR. A K A
(ANONYMITY ORDER MADE)
Appellant
v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation: Ms M Knorr, counsel instructed by Wilsons Solicitors LLP
Mr Jarvis, Home Office Presenting Officer

______________________
DECISION & REASONS
______________________

1. In my decision and reasons dated 4 February 2016 [appended] I found that Judge of the First-tier Tribunal Walters had materially erred in law in dismissing the Appellant's appeal and I adjourned the appeal for hearing before me on 18 February 2016.

Hearing
2. At the outset of the hearing Ms Knorr stated that the Appellant would not be giving evidence, in line with the medical reports. She then called Mr Mark Fish, the Appellant's psychotherapist and Director of Room to Heal, to give evidence. He adopted his statements at AB 99 dated 20 May 2015 and SB pages 2-3 dated 28 August 2015 and 15-16 dated 13 October 2015. In response to supplementary questions from Ms Knorr, Mr Fish said that since the hearing before the First tier Tribunal and his appeal being dismissed, the Appellant had been attending Room to Heal much more sporadically with a period when he was not coming at all. The Appellant became incredibly suicidal and they contacted the CMHT and re-referred him and since then he understood the Appellant has been having fortnightly sessions with the CMHT for half an hour to see how he is and whether the medication is working. The Appellant stopped those sessions in December and is now back at Room to Heal full time. His clinical psychologist, Dr McCarthy has recently referred him to the Institute of Psychotrauma and he is waiting on an appointment there. He confirmed that the Appellant is currently taking 200mg of Sertraline & 10 mg of Olanzapine daily.
3. Mr Fish said that he had worked pretty closely with the Appellant for two and a half years, both in individual therapy and intensive group retreats where a group of members go off on retreat and have intensive therapy to help them detail some of their most difficult issues. He said that details of the events in Nigeria have come out and that when someone talks about this over a protracted period of time there is an obvious sense of whether someone is telling the truth or not or whether they want to say something that is not the case. He said that the Appellant is a very emotional man and the experiences he articulates are not just verbal but he physically goes through the experience in that he starts crying and he has great difficulty speaking but finds his way back because he wants people to understand what has happened to him. There was no doubt in his mind that what he says is what has happened to him.
4. In terms of his ability to cope if he were to be returned to Nigeria, Mr Fish explained that his view of the Appellant's likely inability to cope is based on what happened when the Appellant learned he might move out of London and the threat of that was such that he ended up in day hospital, so strong was the feeling of suicidality and he knows the Appellant's anxiety about return is that amplified one hundredfold. He said that return is something unthinkable for the Appellant and that it was hard to have a meaningful conversation with him as he goes into paroxysms of fear if the subject is even broached. This is why he was so distressed after his appeal was dismissed as it meant return and the loss of the support he has gained over the last few years. He believes it will result in his death as he is absolutely convinced wherever he would be that Boko Haram would find him and kill him in a horrible way.
5. Mr Fish was then asked if it would make a difference if there were mental health services available in Nigeria and he said that he does not know if there are mental health services in Nigeria, but he was pretty sure the Appellant would never get to them because the level of his anxiety and fear even if they existed would prevent him from engaging with them in any meaningful way. He explained that when things happen here the Appellant alternates between a catatonic state and he locks himself away because his anxiety is intimately related to the threat of return. It makes no sense that he would engage there.
Mr Fish stated that they had worked hard for a couple of years now and still despite their best efforts, any kind of destabilizing factor will knock him right over again in such a way he becomes extremely suicidal. His way of coping is to put himself in lockdown until something abates. CMHT visit him at home and take him to hospital. His response is a high extreme. When he came late this morning Mr Fish was very worried the Appellant had gone into lockdown in fear of coming to court for fear of something negative happening.
6. Mr Fish was then asked about the impact of his detention and sexual assault and whether this was significant in terms of the Appellant's vulnerabilities and he said it is extremely significant in that, his understanding of what happened in terms of the rape took the Appellant back into his experiences in Nigeria. Therefore, it was traumatizing in his own right and re-traumatizing and that both events were catastrophic. He said for the Appellant that coming to the UK was fundamentally about seeking sanctuary from what happened in Nigeria and he cannot understand it.
He came for sanctuary and hoped he would find it eventually. It confuses him to the point of thinking that he has already given up with the system. In the group on Tuesday he was talking, in a "numbed-out" way about the fact he had this hearing today and there was no sense for him that there could be any positive outcome in that his life has already been taken from him. That means there is a still a lot of work to do with him.
7. Mr Fish was then cross-examined by Mr Jarvis. He confirmed that he was working with the Appellant when he attempted to commit suicide in 2014. He did not know what medication he was taking at that time but he does know the antidepressant has been changed and he has been on them for several years. Mr Fish was asked to comment on the fact that in the period after he was hospitalized the Appellant went to Helen Bamber Foundation/Room to Heal and whether this meant that the Appellant realizes what is best for him and seeks help. Mr Fish responded that what that tells you is that he was very close to going under the water completely and with the help of the CMHT he was able to bring his head above the water and then access help. He has the benefit of familiarity in that the Appellant sees him (for therapy) and the same support group each time. Mr Fish was asked about the Appellant's catatonic periods and the last time the Appellant experienced that state and he responded that catatonic was not really the right word, it was more that he becomes locked down, which was the state he went into post refusal in May/June 2015.
8. When asked if the Appellant would have killed himself if the CMHT had not intervened, Mr Fish responded that he might have done. He said that Room to Heal have worked in tandem with the CMHT since September 2013 and it was quite unusual to do this. Mr Fish was asked whether the fact that the Appellant had a Church in Lagos might mean they would help the Appellant if returned to Nigeria and he responded that the impact of return would mean the Appellant would not be able to access such support and that his relationship with the church had been compromised by the bombing of the Church. The Appellant says despairingly that there is nobody there.
9. When asked about the suicide attempt in 2014 and whether it was a genuine attempt to take his own life or a cry for help, Mr Fish said that he did not know in all honesty but he thought that when people get into a state like that it may be either of those two and even if it is the lesser one it can become the greater one. The most important thing about it from his perspective is that the Appellant goes to a place of no resources and can end up doing something irrational. Mr Fish was asked from his experience and relationship with the Appellant whether he had seen any improvement in his mental health and coping strategies and he replied that when something happens eg the threat of accommodation being taken away, the Appellant returns to that place of no resource and suicidality.
10. There was no re-examination. Mr Jarvis then asked for a short time to consider the Respondent's position. Upon my return to court after 30 minutes, Mr Jarvis stated that the evidence was compelling. Mr Fish has worked with the Appellant for a long time and said nothing that he could challenge. Therefore, he accepted that there was a real risk of suicide by the Appellant if returned to Nigeria and that he had established an Article 3 risk on this basis. He did not accept that there was a domestic risk of an Article 3 breach due to measures that would be put in place, but it was reasonably likely that there would be an article 3 breach in terms of the Appellant's ability to cope on return. Consequently, he conceded the article 3 claim.
11. Ms Knorr then indicated that she continued to pursue the refugee claim because Dr Robertson has said that only the grant of ILR would work in terms of stability for the Appellant, albeit she accepted that the length of leave granted was a matter for the Home Office. She said that she had discussed this with Mr Jarvis and that submissions would be limited to the refugee claim.
Submissions
12. Mr Jarvis based his submissions on the refusal decision letter of 27 September 2014. He submitted that it was relatively neutral and did not go into extensive criticism of the Appellant's claim. It was the Secretary of State's case that something has happened as the medical evidence strongly indicates trauma, but this was not a consequence of Boko Haram. In any event, any risk the Appellant considers he would be subject to was limited to the home area of Kano and he successfully relocated to Lagos for 2 years before leaving the country. The Appellant said that he had received phone calls even though he changed his SIM card. For the Appellant to suggest that he would now be at risk on return in terms of threatening calls would be high speculation: there has not been a suggestion of threat in the UK by any form of group. Even the existence of threatening calls would not constitute persecution because there are too many constituent parts. In respect of the expert report of Dr Schulz, she does not go so far as to say the perpetrators were Boko Haram or would be able to contact him in the southern part of the country or Lagos. In respect of the evidence of Dr Maloney, Mr Jarvis adopted the refusal letter and it was his submission that ultimately Dr Maloney is using terminology such as "consistent" which has a wide degree of possibility and does not lend extra weight to risk on return today. He submitted that purely in the context of the refugee claim there was no risk to the Appellant by a particular group. In respect of his concession, he stated that this was confined to the suicide risk viz J [2005[ EWCA Civ 629 and Y & Z [2009] EWCA Civ 362 but not Sufi and Elmi v United Kingdom (App nos. 8319/07 and 11449/07) in the context of Nigeria, albeit he accepted that an Article 3 breach can occur as a consequence of destitution.
13. In her submissions, Ms Knorr relied upon her skeleton argument at [41] and informed me that the trial of the Appellant's civil claim had been stayed because of the decline in the Appellant's mental health. In respect of the refugee claim, she submitted that, once it was reconsidered in 2013, no serious credibility points were taken. The points were made that there is no evidence it is Boko Haram who has pursued the Appellant but she submitted that the Appellant's consistent evidence is evidence and certain things about the attacks he has suffered mean it is genuine in light of the expert evidence and cf the skeleton argument. She submitted that his fear was not of one specific group because they are very disparate and that Boko Haram is an umbrella term for Islamist groups. The Appellant does not know if they are sent by Boko Haram but what he knows is that they are persecuting him because he was part of their group and he left - the group he was involved with pre-date Boko Haram. Ms Knorr submitted that this was crucial to understanding the nature of the threats the Appellant received and the physical attacks he has suffered and that it was entirely plausible that someone who is in those Islamist groups and decided not to go on training courses which were clearly radicalization would be targeted. The Appellant left the group and switched religion to Christianity. He told them he was leaving and did not want to go on these trips. This is confirmed by the expert report. The Appellant suffered two incredibly violent attacks when he went to his area. Dr Moloney's scarring report is very careful and obviously follows the Istanbul protocol and gives a clear view as to alternative causes. It is necessary to look at the report along with what the Appellant says happened. It is not merely the scarring which is consistent but the most compelling aspects of the report are 7.16-7.18 and the fact that this is complex scarring typical of repeat lacerations in certain areas with sharp objects. This scarring is highly consistent with a very violent attack. See also 7.18 which again describes the scarring as typical. The length of the lacerations indicates attack with a large knife or machete.
14. The country expert Dr Schulze supports the Appellant's claim. She basically says all of this is plausible and that the way Boko Haram operate is that there are criminal elements under this loose coalition of different groups working together. It is plausible that these attacks against the Appellant are carried out by Boko Haram or criminal groups operating on their behalf. It is possible that these were random criminal acts but we say it is far more likely he was targeted by them, given that there were two violent attacks in quick succession and the Appellant was told that they were from Boko Haram and were deliberately targeting him and blamed him for the death of the Boko Haram leader. The Appellant is not responsible but he is a defector and could be blamed. If the Appellant is believed and there is no reason to disbelieve him, then he has an intense fear of this group for a reason. She submitted that 7.23 of Dr Moloney's report detailed scarring from a gorging injury on his back, which is an area rarely exposed and was highly consistent with a chisel.
15. In respect of the question of whether or not the Appellant's fear is objectively well-founded, Ms Knorr submitted that the Appellant had received threatening phone calls in Hausa, which is the language spoken by those from Boko Haram and they said they were from Boko Haram. She submitted that the Respondent had made no real attempt to engage with the evidence and it was all entirely plausible. The Appellant was targeted for a period of 5 years, even when he moved away from his home area in an attempt to relocate. There was nothing to support the suggestion that Boko Haram would no longer be interested in him. Ms Knorr invited me to adopt the approach at paragraph 339K of the Rules in respect of past persecution, that there needed to be good reasons to show persecution would not be repeated. In Dr Schulze's opinion, the Appellant will be at risk in his home area of Kano.
16. In respect of the issue of internal relocation, Ms Knorr submitted that the Respondent's Article 3 concession deals with internal relocation in that the Appellant would be so unwell he would not now be in a position to internally relocate. Even if he were to internally relocate there are networks of communication because people move around Nigeria and there are informal networks, perhaps not the moment he steps off the plane but the expert says they will find out eventually because news travels and that is the way communication works there: C16 section 7. Even if the Appellant were to reconnect with the Church in Lagos state near the Benin border, Boko Haram have links with the people he knew. The idea he would not see anyone he knows ever is just not plausible or reasonable. The Appellant received threatening phone calls despite changing his SIM card. Even if one gets a pay as you go phone, one has to give one's ID and fingerprints to the phone companies. At section 4 C13-C14 Dr Schulze knew someone who was getting threatening messages on her mobile phone. If those calls were to re-start, it is absolutely clear the Appellant would not be able to cope with them and that because of his particular vulnerabilities - it is necessary to assess persecution in light of his particular circumstances - even if he did not go back North and even if he was not physically attacked, that persistent threat would be persecutory. The detention, assault and support network to explore his traumas means that he is extremely vulnerable. The Appellant's sense of safety was so undermined by the sexual assault in detention because he thought he was in a safe place and it was shattered. In those circumstances the Appellant could not cope with threatening calls. He would be at risk anywhere. Even if one looks at it from the perspective of Kano he would clearly come across people he knew. He would be destitute cf. AA (Uganda) [2008] EWCA Civ 579 where the Court of Appeal found that a person's particular vulnerabilities meant that she could not internally relocate.
Decision
17. I announced my decision to allow the appeal on refugee grounds at the hearing, whilst the Appellant was present, in light of his fragile mental state, which has now been expressly accepted by the Respondent in conceding that he would be at risk of suicide if forcibly removed to Nigeria, contrary to Article 3 of ECHR. I now give my reasons for reaching this decision.
18. The Respondent's case, put simply, is that she accepts that the Appellant has suffered trauma as the result of an attack, but this was not by Boko Haram. Even if it was, the Appellant could internally relocate from his home area of Kano. It was not accepted that the Appellant would be at risk on return as he has not received any threatening telephone calls since he came to the United Kingdom and in any event, threatening telephone calls do not amount to persecution.
19. I do not accept the Respondent's contentions, for the reasons that follow. The medical evidence in the form of a scarring report by Dr Moloney is clear that the scars that the Appellant bears are "typical" of what one might expect from lacerations produced by a repeated chopping or slashing with a sharp object [RB B12-13 at 7.34]. The length of the scars indicates an attack with a large knife or machete. The scarring on the Appellant's back is "? highly consistent with an intentional attack with a chisel, as described." Dr Moloney concluded that overall, the scarring was consistent with two assaults although, of course, he was unable to say who was responsible for those assaults.
20. The Appellant's psychiatric presentation is also consistent with having been subjected to traumatic events, albeit it is not entirely possible to separate out the trauma resulting from the attacks in Nigeria and the trauma resulting from the serious sexual assault that he sustained whilst in immigration detention at Harmondsworth IRC. In her report of 25 May 2015, Mary Robertson, Chartered and Consultant Clinical Psychologist found that the Appellant is suffering from PTSD, with symptoms commencing whilst he was in Nigeria and worsening following his detention and again after he was raped in detention: AB 55-56. She found he was also suffering from Major Depressive Disorder and Panic Disorder and was at a high risk of suicide and/psychotic breakdown. In his written reports and letters and in his oral evidence, Mr Fish, the Appellant's treating therapist since September 2013 noted the consistency in the Appellant's account of traumatic events in Nigeria and expressly stated that he had no doubt in his mind that what the Appellant says happened to him is what happened.
21. The country evidence also corroborates the Appellant's account in that: (i) Boko Haram are particularly active in Kano, the Appellant's home area; (ii) the country expert, Dr Schulze, confirms that the Appellant's account is plausible in its material respects viz his account of Mohammed Yusuf giving lectures to AYF members and others; his account of AYF members travelling to Yemen and Saudi Arabia; that his mother's Church was targeted and that the attack on Professor Leo was consistent with an attack by Boko Haram on a Christian target; his account of receiving threatening telephone calls following his conversion to Christianity was plausible and it was plausible that the appellant was targeted in Lagos by Boko Haram or associated criminal groups [RB Annex C].
22. I have assessed the credibility of the Appellant's account in light of the expert and background evidence, as I am required to do cf. Mibanga [2005] EWCA Civ 367 and I find that his account is credible; that it is supported in its material respects by reliable expert and country evidence and that there is a serious possibility or a reasonable degree of likelihood that the Appellant's account of past persecution is true.
23. The question is whether there is a serious possibility that the Appellant would face persecution if returned to Nigeria on account either of his conversion to Christianity or as a member of a particular social group viz former members of the AYF/Muslim Congress. Paragraph 339K of the Immigration Rules provides that: "The fact that a person has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, will be regarded as a serious indication of the person's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated." I find that there is a real risk that the Appellant would again be subjected to threatening telephone calls and a concomitant risk of serious attack by elements associated with Boko Haram if he were to be returned to Kano. Whilst it is the case that the Appellant left Kano in 2007, he was subjected to violent attacks in April and December 2011 when he returned to Kano, during which his attackers spoke in Hausa and said that he deserved to die because he had reported them to the police and their leader was now dead. I find that there is a serious possibility that at least some if not all of those responsible for the attacks on the Appellant in 2011 remain in Kano and remain part of one of many disparate groups that constitute Boko Haram.
24. I further find that the Appellant's subjective fear of persecution in Kano is likely to be exacerbated by the fact that his mother was killed when her Church was bombed by elements from Boko Haram on 25 December 2011 and by the subsequent bomb attack by elements from Boko Haram which killed his mentor, Mr Leo on 28 April 2012. Both these incidents are corroborated by the background evidence at AB 414-418, 423-424. Consequently, I find that the Appellant's fear of persecution in Kano is objectively well-founded. I find, on the evidence, that there are no good reasons to consider that the persecution the Appellant experienced in the past will not be repeated.
25. I further find that the Nigerian authorities are unable to provide sufficient protection: they have failed to do so in the past and this is supported by the background evidence at AB 348, 354-357, 373-374, 377-378, 379-381, 384-385, 389-401, which also indicates that they have a poor track record for prosecuting offenders and have been implicated in abuse themselves: AB 346-347, 349, 369, 374, 378, 382].
26. Mr Jarvis submitted, in line with the Respondent's refusal decision, that the Appellant could safely internally relocate because he had done so before, when he left Kano for Lagos. I do not accept this submission. Firstly, it is clear that the Appellant left Kano for Lagos in 2007, after his conversion to Christianity but prior to receiving telephone threats and prior to the attacks on him in 2011 when he returned to Kano to visit his mother and his mentor, his college lecturer, Mr Leo. Therefore, the fact that the Appellant was living in an entirely different part of Nigeria did not prevent him being traced via his mobile telephone, even though he changed his SIM card. Moreover, his house was broken into and his possessions destroyed on 9 April 2012 and the Appellant states that he was followed by a vehicle that he recognized because it was present at the time when he was attacked in Kano. The Appellant continued to receive threatening telephone calls until he left Nigeria, even though he did not return home and stayed in his Church until he left. I accept Dr Schulze's opinion that it is plausible that the Appellant was targeted in Lagos by Boko Haram or associated criminal elements and I find that this could happen again, given the disparate nature of Boko Haram and the extensive informal communication network which means that he would, in time, be located: RB C16.
27. Secondly, I accept Ms Knorr's submission that the Respondent's concession that there is a real risk that the Appellant would commit suicide if returned to Nigeria, contrary to Article 3 of ECHR, is material to consideration of whether or not it would be unduly harsh to expect the Appellant to internally relocate in that he is simply too unwell to do so. In AH (Sudan) [2007] UKHL 49, Baroness Hale cited with approval an extract from the UNHCR intervention in that case which provides at [20]:
"? the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individual's case holistically and with specific reference to the individual's personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship."
Her Ladyship also expressly stated that there was little between this and the test set out by Lord Bingham at [5] of the judgment. Mr Jarvis expressly accepts that removal of the Appellant would amount to a breach of Article 3 of ECHR due to serious possibility that he would commit suicide. This clearly impacts upon his survival capacity, due to his very poor psychological health. The Appellant has no family members or close friends or associates to whom he could turn for assistance, his mother having died in the bombing of her Church on 25 December 2011 and his mentor also having been killed in a bomb attack.
28. The only other place in Nigeria to which he could be said to have a connection is Lagos, however, he was previously traced there by Boko Haram or associated elements and whilst he has a connection with a Church there, I do not find that on the evidence that the Church could properly meet his basic human rights in that, whilst the Church might be able to provide him with accommodation as it did previously, it would be unable to provide him with security, protection against Boko Haram or access to the health care and support network the Appellant currently receives in the United Kingdom. I also take account in this respect the view expressed by the Court of Appeal in AA (Uganda) [2008] EWCA Civ 579 at [13] that: "There was no evidence from which Immigration Judge Coker could properly conclude that the church would make a difference to AA's life in Kampala that offset or protected her from the dangers described in Dr Nelson's report." For these reasons I find that it would be unreasonable and unduly harsh to expect the Appellant to internally relocate.
29. With regard to the Appellant's civil claim arising out of the serious sexual assault he suffered whilst being held in immigration detention at Harmondsworth IRC, this was raised as a matter before me in the context of Article 6 of ECHR and removal of the Appellant. In light of my findings above, it is not necessary for me to determine this aspect of the appeal but I do express deep concern: (i) that the Appellant was held in detention despite having experienced violent assaults in Nigeria which amounted to Article 3 ill-treatment and was clearly a traumatized and vulnerable person and (ii) that the Secretary of State failed to fulfil even the most basic duty of care towards him in that he was subjected to a most serious sexual assault whilst in detention and the perpetrators have not been brought to justice. Those responsible for treating and caring for the Appellant since that time are clear that this experience has effectively both re-traumatised him and exacerbated his pre-existing trauma. It is to be hoped that in time and with the ongoing support of Mr Fish and Room to Heal that the Appellant is able to recover to the extent of being able to live a relatively normal life. In these exceptional circumstances and bearing in mind the concession by Mr Jarvis, properly made in my view, that removal to Nigeria would be contrary to Article 3 of ECHR owing to the serious risk of suicide, I would request that when considering the issue of the length of leave to be granted to this Appellant that the Secretary of State give consideration to the grant of ILR, in-line with the recommendation by his Consultant Clinical Psychologist, Mary Robertson.
Decision
30. The appeal is allowed under the Refugee Convention.
31. The appeal is allowed on the basis that removal of the Appellant to Nigeria would be contrary to Article 3 of the ECHR.

Deputy Upper Tribunal Judge Chapman

28 February 2016

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08031/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 February 2016

?????????????

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MR. A KA
(ANONYMITY ORDER MADE)
Appellant

v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

______________________
DECISION & REASONS
______________________

1. The Appellant is a national of Nigeria, born on [ ] 1977. He arrived in the United Kingdom on 9 September 2012 with a visit visa, but when stopped and questioned by Immigration Officers upon arrival he claimed asylum on the basis that if he returned to Nigeria he would be killed (by Boko Haram). He was detained under the auspices of the DFT, interviewed on 18 September 2012 and his claim was refused on 24 September 2012 and certified as clearly unfounded under section 94 of the NIAA 2002. On 27 September 2012 the Appellant was subjected to a serious sexual assault whilst in the showers at Harmondsworth IRC, which he did not initially disclose to anyone. His solicitors challenged the certification of his appeal by way of judicial review and ultimately on 14 June 2013, the judicial review was withdrawn on the basis that the Respondent agreed to consider representations as a fresh asylum claim and if refused to provide the Appellant with the right of in-country appeal. On 25 September 2013, the Appellant's solicitors lodged a civil claim for wrongful detention and failure by the Respondent to investigate the Appellant's allegation of rape and failure to offer him appropriate support.
2. The Respondent subsequently made a further decision on 27 September 2014, refusing to grant the Appellant asylum. He appealed and his appeal came before Judge of the First-tier Tribunal Walters for hearing on 2 June 2015. It was agreed by the parties that the Appellant is a vulnerable witness within the meaning of the Joint Presidential Guidance in respect of child, vulnerable adult and sensitive appellants and although the Appellant wished to give evidence he would not be subject to cross-examination. The Appellant's evidence was essentially confined to adopting his interview record and statements. The Appellant's counsellor and psychotherapist, Mr Mark Fish, also gave evidence that inter alia he sees the Appellant on a weekly basis for individual psychotherapy; that he has severe and chronic PTSD and had attempted suicide in July 2014.
3. In a decision dated 31 July 2015, the First-tier Tribunal Judge dismissed the appeal because, in essence, whilst he accepted at [74] that the Appellant had a subjective fear of being killed, this belief was not genuine at the time he left Nigeria [75]. The Judge further accepted at [76] that the Appellant has scars consistent with two machete attacks but he did not accept that they were caused in the manner and by the persons he described. He found that the Appellant could internally relocate [98] and that there would be sufficiency of protection available to him from the Nigerian authorities [99]. He accepted that the Appellant had been raped whilst in Harmondsworth IRC [110] but he did not find that his mental state reached the threshold required for Article 3 to be engaged [120] and that it would be proportionate to remove him to Nigeria [135].
4. An application for permission to appeal was made on 13 August 2015. The grounds in support of the application are substantial and detailed and submit that the First-tier Tribunal Judge erred: (i) in his credibility findings, which were not sustainable in light of the evidence and were not significantly challenged in the refusal or at the hearing and that the Judge had erred in failing to take into account the medical and country expert evidence in making credibility findings; that the Judge had failed to make findings on relevant matters; (ii) in his findings on internal relocation, which had been infected by the Judge's flawed credibility findings and the Judge failed to make findings on a material issue viz the threatening telephone calls from Boko Haram and the Appellant's extreme vulnerability which, in light of the medical evidence, would preclude him from internally relocating; (iii) in assessing sufficiency of protection, given that the objective evidence clearly demonstrated that the Nigerian State is unable to offer effective protection; (iv) in his consideration of Article 3 and the risk of suicide, in respect of which the Judge failed to provide reasons for finding that the threshold was not met; (v) in his assessment of Article 8, in that the Judge failed to take account of material considerations viz the undisputed medical evidence that the Appellant would be unfit to support himself or access treatment and the Judge failed to take account of the fact that the Appellant was raped and the impact upon him in assessing proportionality; (vi) in his assessment of Articles 5 and 6 of ECHR, which give rise to procedural obligations whilst his civil claim and investigations into his rape in detention are ongoing.
5. Permission to appeal was granted by Designated First Tier Tribunal Judge Zucker on 25 August 2015, on the basis that it was arguable that the Judge had failed to follow the guidance in Mibanga [2005] EWCA Civ 367 and having found that the Appellant genuinely believes there to be a risk to him on return even if not objectively well founded, failed to have sufficient regard to the risk of suicide. He did not exclude any of the other grounds from being advanced. The Respondent filed a brief rule 24 notice on 9 September 2015, by way of a holding letter pending instructions on the civil claim.
Hearing
6. At the hearing before me, I indicated that I had taken a preliminary view that it was arguable that Grounds 1-5 of the grounds of appeal showed that the First-tier Tribunal Judge had made material errors of law. Ms Knorr then addressed me in respect of Ground 6 and served copies of the decisions in Quaquah [2000] HRLR 325 per Turner J; AA (Uganda) [2008] EWCA Civ 579 and HJ (Iran) [2006] EWCA Civ 1796. She submitted that the Judge's reasoning was at [137] and [138] and his reasons for rejecting this aspect of the case were that: (i) the Appellant has given detailed instructions to solicitors in the UK; (ii) he could have skype conferences with them from Nigeria; (iii) he could give oral evidence in civil proceedings by video link via the British High Commission in Nigeria. She submitted that the Judge failed to engage with the contents of the Appellant's solicitor's statement, that it would be "extremely difficult" to properly conduct the civil proceedings with him in Nigeria and that this had infected his consideration of the issue and he assumed that the Appellant would be simply in the same equivalent position in Nigeria. This fails to take account of the undisputed evidence that the Appellant would be unable to support himself and would be in a state of complete mental breakdown given what his solicitor said about the difficulties. There was no evidence from any party that he would be provided with resources to use a video link. The Judge further failed to consider the equality of arms point - how would a Home Office psychologist be able to assess him in Nigeria? It was clear that statements needed to be prepared and that psychological reports would be needed from both parties. She further submitted that the civil proceedings are important and raise public interest issues as the Appellant was subjected to a serious sexual assault in detention and the manner in which the Home Office have dealt with that required scrutiny. She submitted that detention has had a devastating effect on his mental health and it is his right to be able to bring those proceedings and hold the Home Office to account.
7. In response, Mr Tufan drew my attention to the judgment by the House of Lords in Ullah [2004] UKHL 26 and submitted that an Article 5 and 6 claim would have to reach a very high standard. He submitted that the letter from the Appellant's MP shows he has pursued an NVQ level 2 and thus he clearly had the ability to pursue a course of study. In respect of Ground 1, he submitted that credibility findings are for a Judge to make; that Judges can agree with the reasons for refusal letter and find no ring of truth. He submitted that the Judge has done considerably more than that and has given reasons for his credibility findings. He submitted that there was nothing irrational about these findings which were sufficiently reasoned. In respect of Ground 2 and the issue of internal relocation, he submitted that Nigeria is a very large country. The Judge concluded Boko Haram had no interest in this Appellant and that he could reasonably relocate elsewhere and there was nothing wrong with this finding. In respect of Ground 3 and the assertion that the Judge made errors in assessing sufficiency of protection, he submitted that Boko Haram were in the east of the country and were not even all powerful in Muslim areas and this finding was open to the Judge. In respect of Ground 4, and the assertion that the Judge made errors in his consideration of article 3 and the suicide risk, he submitted that J [2005] EWCA Civ 629 distinguished between foreign and home cases. He submitted that this covers the position in the UK and en route to Nigeria. The Judge did refer to J and the case of KH [2009] EWCA Civ 1354 in the Court of Appeal where Aitkens LJ and Sedley LJ concluded it would have to be a very exceptional case indeed to succeed. In respect of Ground 5 and the arguments in respect of Article 8 of ECHR, he submitted that the case needs to be exceptional and the Judge referred to KH (op cit) and Razgar [2004] UKHL 27. Ms Knorr then responded.
Hearing
8. I find that First-tier Tribunal Judge Walters did err materially in law. I announced my decision at the hearing and I now give my reasons:
8.1. It is clear from the substantial medical evidence submitted that the Appellant is indeed a vulnerable witness and he is suffering from severe and chronic PTSD and is suicidal. The Judge expressly accepted that the Appellant had scars consistent with two machete attacks in Nigeria [76] and that he had been raped whilst incarcerated in Harmondsworth IRC [110]. This then was the context in which the credibility findings were to be made and I find that the substance of the first ground of appeal is made out in that the Judge did not correctly direct himself with regard to a proper assessment of credibility in the light of the medical and country expert evidence cf. Mibanga [2005] EWCA Civ 367.
8.2. I agree with Ms Knorr that the Judge's findings on internal relocation were infected by his flawed credibility findings. I further find that the Judge failed to make findings on a material issue viz the threatening telephone calls from Boko Haram and that he failed to take account of the Appellant's extreme vulnerability which, in light of the medical evidence, would preclude him from internally relocating.
8.3. In respect of Ground 3 and the Judge's assessment of the sufficiency of protection, I find that the Judge failed to properly assess the background evidence before him at [99]-[100]. Whilst the authorities may well be interested in information about Boko Haram it does not necessarily follow that they would be able to provide the Appellant with protection. Further, the Judge's assertion that the country evidence shows that the Nigerian State is able to offer effective protection, he failed to specify which documents substantiated his finding in this respect and this is not borne out by the background evidence cited by Ms Knorr at [29] of the grounds of appeal.
8.4. In respect of Ground 4 and the Judge's consideration of Article 3 and the risk of suicide, whilst the threshold is a high one and I accept that the Judge correctly directed himself in respect of the relevant caselaw, I agree with Ms Knorr that the Judge failed to provide reasons for his finding that the Appellant's "present mental state" did not reach the threshold, given the clear medical evidence before him as to the level of trauma and vulnerability and the fact that the Appellant had already attempted suicide. In these circumstances, I find that reasons were required as to why the Judge considered that the threshold was not met on the facts of the case.
8.5. I further find that the Judge erred in his assessment of Article 8 and the proportionality of removal, in that he failed to take account of material considerations viz the undisputed medical evidence that the Appellant would be unfit to support himself or access treatment and he further failed to take account of the fact that the Appellant was raped and the impact of that upon his mental health in assessing proportionality.
8.6. Lastly, I find for the reasons set out in Ms Knorr's oral submissions recorded at [6] above, that the Judge erred in his assessment of Articles 5 and 6 of ECHR, which give rise to procedural obligations whilst his civil claim and investigations into his rape in detention are ongoing. In particular, the Judge erred in distinguishing the cases of MS (Ivory Coast) [2007] EWCA Civ 133 and MH (Morocco) [2010] UKUT 439 (IAC) simply on the basis that they concerned the desirability of the grant of a short period of leave to prevent the removal of a person involved in family law proceedings, given that the issue here is comparable in light of the public interest inherent in the fact that the Appellant was raped whilst in detention under the auspices of the Home Office.
8.7. For the avoidance of doubt, I do not accept that the fact that the Appellant was able to participate in a part time course of study detracts from the fact that he has been assessed by medical professionals as suffering from complex PTSD. There is no evidence that this has caused him to be intellectually impaired.
9. After I had announced my decision Ms Knorr submitted that attempts to expedite the proceedings in the Upper Tribunal due to the Appellant's deteriorating mental health had so far failed and she urged me to adjourn the appeal to be heard at the first available opportunity. Mr Tufan had no objection to this proposed course of action.
Decision
10. I find that First-tier Tribunal Judge Walters erred materially in law. I adjourn the appeal to be listed before me for hearing on Thursday 18 February 2016 at 10 am with a two hour time estimate. The only direction I make is that any updating evidence, including any updated skeleton argument is to be served by Monday 15 February 2015 at 4pm.

Deputy Upper Tribunal Judge Chapman

4 February 2016