Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08216/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5th October 2016
On 17th October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

M S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Loughran, Counsel instructed by Wilson Solicitors
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order.
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 his 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.
1. The Appellant a national of Cote D'Ivoire appealed to the First-tier Tribunal against a decision of the Secretary of State dated 13th May 2015 to refuse his application for asylum or humanitarian protection in the UK. First-tier Tribunal Judge Housego dismissed the appeal and the Appellant now appeals with permission to this Tribunal.
2. The background to this appeal is that the Appellant arrived in the UK on 2nd January 2011 and claimed asylum two days later. The Appellant's claim for asylum was based on his contention that he was subjected to torture and ill-treatment in Cote D'Ivoire in 2002, 2004 and 2010 as a result of his Dioula ethnicity, his support for opposition parties and his participation in demonstrations.
3. The Appellant's application was refused on 21st January 2011 and his appeal against that decision was dismissed in a decision by Designated Immigration Judge (DIJ) Manuell in a decision promulgated on 16th May 2011. The Appellant made further submissions in 2011 and in 2013 and in a decision dated 13th May 2015 (the decision appealed against herein) the Respondent refused the Appellant's protection and human rights claim. The Appellant appealed against that decision and that appeal was dismissed on 29th October 2015 by First-tier Tribunal Judge Chana. The Appellant's appeal to the Upper Tribunal against that decision was successful and on 10th February 2015 the decision of First-tier Tribunal Chana was set aside and the appeal was remitted to the First-tier Tribunal to be heard de novo.
4. The remitted hearing took place in the First-tier Tribunal on 27th July 2016 before First-tier Tribunal Judge Housego. Prior to that hearing two applications for adjournment had been made on the Appellant's behalf on 25th and 26th July 2016. Both applications had been refused on the papers. A renewed application was made before First-tier Tribunal Judge Housego in order to enable the Appellant to obtain legal representation and further medical evidence. The Appellant attended the hearing accompanied by Mr Fish, a psychotherapist from Room to Heal who is assisting the Appellant. The judge had before him a letter from the Helen Bamber Foundation seeking an adjournment to enable the Appellant to obtain representation and further medical evidence. Mr Fish objected to the hearing proceeding in the absence of legal representation. The judge refused that adjournment application and proceeded with the hearing. He said that he treated the Appellant as a vulnerable witness in accordance with the Joint Presidential Guidance Note number 2 of 2010 because of his PTSD. The judge heard oral evidence from the Appellant and went on to dismiss the appeal.
5. The Appellant applied for permission to appeal against Judge Housego's decision on three grounds. The first ground is that the judge materially erred in law in failing to adjourn the appeal in light of the Joint Presidential Guidance in relation to treatment of vulnerable witnesses and the medical evidence before him. The second ground is that the judge failed to make a finding on a material matter that is the Appellant's allegation that he had been tortured as described. The third ground contends that the judge erred in his treatment of the decision of DIJ Manuell under the guidelines set out in Devaseelan [2002] UKIAT 00702.
6. Permission to appeal was granted by First-tier Tribunal Judge Saffer on the basis that it is arguable that the judge may have erred in not adjourning the hearing where the Appellant had PTSD, required a health professional with him for his mental health during the hearing and appeared to be trying to get legal representation.
Submissions
7. At the hearing before me Ms Loughran submitted that it is clear from the adjournment application that it was the Appellant's case that he would have legal representation the following week as new solicitors were being instructed. She submitted that the judge had made a material error in refusing to adjourn having treated the Appellant as a vulnerable witness in that he failed to follow the Presidential Guidance Note. She further submitted that, even though medical professionals were engaged in his case, there was no up-to-date medical evidence before the First-tier Tribunal which would have informed the judge how to deal with the case in light of the Appellant's vulnerability. She pointed to the decision where the judge set out the questions he had asked the Appellant [53 - 55]. She highlighted that it was recorded that the Appellant had become upset and then went on to be subjected to cross-examination and further questions from the judge [56-65]. She therefore submitted that the Appellant had given a significant amount of evidence as well as the submissions recorded at paragraph 78 notwithstanding the fact that he was unrepresented and the judge had purported to accept that he was a vulnerable witness. She submitted that if the case had been adjourned medical evidence would have addressed the Appellant's ability to give evidence and to make submissions.
8. Ms Loughran submitted that the judge failed to follow the Presidential Guidance in his assessment of the evidence as he made no attempt to identify the extent of the Appellant's vulnerability and the effect of that vulnerability on his assessment of the Appellant's evidence. Although the judge had concluded that the Appellant has PTSD and has a genuine fear of return to the Cote D'Ivoire, she submitted that it is clear that the judge failed to consider the effect of the PTSD on the Appellant's ability to give a clear account and to present his case.
9. In relation to Ground 2 Ms Loughran submitted that the judge acknowledged that there was no current medical evidence and said that there was no evidence of a suicide risk or as to the extent of the depression said to be suffered by the Appellant. She noted that the judge said at paragraph 97 that the extent of the Appellant's depression was "not proved". However the basis of the adjournment request had been to obtain up-to-date medical evidence and this would clearly have been material to the issue of suicide risk. She submitted that it was clear that the judge was unable to deal with this aspect of the Appellant's claim without medical evidence so therefore the failure to adjourn was material to issues to be determined. She submitted that this is further demonstrated by the judge's conclusions at paragraph 94.
10. Ms Loughran submitted that the judge assumed at paragraph 94 that the Appellant had been tortured without making findings despite this being the very task the judge had been given in relation to this appeal. She submitted that a finding on this issue is essential for the assessment of any suicide risk, the assessment as to whether the Appellant has a genuine and subjective fear, the assessment as to whether there are significant obstacles to his return and reintegration in Cote D'Ivoire and for the assessment as to whether there are exceptional circumstances to go on to consider the case outside Article 8.
11. The Appellant's third Ground of Appeal is that the judge misdirected himself in relation to Devaseelan. It is contended that the judge did not take the decision of DIJ Manuell as his starting point.
12. In response Ms Fijiwala submitted that the judge did treat the Appellant as a vulnerable witness. She referred to paragraph 39 of the decision where the judge said so and to paragraph 48 where, in refusing the adjournment, the judge invited Mr Fish to stay to ensure that the Appellant's mental health was safeguarded throughout the case and reiterated that he treated the Appellant as a vulnerable witness. She submitted that it is clear from the record of the questions put by the Appellant that he was given breaks. She submitted that the judge noted that the psychotherapist confirmed that he had no objection to the way the case had been handled [79]. She submitted that the judge dealt with the appeal fairly. She submitted that there was no indication that funds would be available or representation would be available or as to when. Although an indication was given that the case would be ready to go ahead in twelve weeks there was no indication as to when the report would be available [41]. She submitted that the judge handled the case appropriately, that the Appellant was able to put his case and the benefit of the doubt was properly applied.
13. Ms Fijiwala submitted that the judge did consider the available evidence noting at paragraph 90 that the medical evidence was nearly five years old. She submitted that the judge did consider the evidence before him [91]. The judge accepted that the Appellant has PTSD. The Appellant did not provide any further evidence. She submitted that at paragraph 94, in assuming the Appellant had been tortured, the judge took the case at its highest and went on to assess the risk on return on that basis. She pointed out that there was no evidence in relation to suicide risk even though the Helen Bamber Foundation and Room to Heal were involved in the Appellant's case. In her submission the judge therefore had sufficient reasons for finding that the requirements of paragraph 276ADE of the Immigration Rules, and Article 3 and Article 8 of the ECHR had not been met.
14. Ms Fijiwala accepted that the judge misdirected himself in law in failing to take DIJ Manuell's decision as a starting point. However she submitted that this is not a material error given that DIJ Manuell had dismissed the Appellant's appeal finding that the Appellant was not credible and the judge did consider the new medical evidence which had not been before DIJ Manuell.
Error of Law
15. I have considered all of the Grounds of Appeal and the submissions.
16. The judge said that he treated the Appellant as a vulnerable adult under the Joint Presidential Guidance Note [39]. Ms Loughran set out extracts from that Guidance Note in her Grounds of Appeal and I note that it states that it is a matter for the Tribunal to determine the extent of an identified vulnerability, the effect of the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence taking into account the evidence as a whole. The Guidance also states that the Tribunal should record the effect of the identified vulnerability in the assessment of the evidence. The Guidance further states at 5.1 that if a vulnerable Appellant is not legally represented the Tribunal should consider whether an adjournment of the substantive hearing would enable representation to be obtained. At 10.2 the Guidance states that an adjournment may be required to enable expert evidence to be called as to the effect of the Appellant's vulnerability on his ability to give cogent evidence of the events relied upon.
17. There are two difficulties in relation to the judge's approach in this case arising from this Guidance. Whilst the judge says that he decided to treat the Appellant as a vulnerable adult as a result of his PTSD [39] [85], it is not clear that he took this vulnerability into account in considering the adjournment request. Secondly, it is not clear from the analysis of the case at paragraphs 90 to 100 that the judge took the Appellant's accepted vulnerability into account in assessing the actual evidence before him.
18. For example at paragraph 90 the judge accepted that there was no room for doubt that the Appellant suffers from PTSD. However at paragraph 92 the judge said that he found it difficult to make a causative link between the alleged torture and PTSD because the Appellant was visibly moved when speaking of the death of his brother. However it is the Appellant's account that his brother was taken when the authorities came looking for him (Q76 asylum interview) and the judge records that the appellant was upset when giving evidence about being tortured [55]. It is therefore unclear how the judge made the link he did between the PTSD and its cause. It is unclear how the judge took account of the fact that the Appellant has PTSD when reaching conclusions as to its cause.
19. In my view the most significant difficulty arising from the judge's decision to refuse the adjournment request is in relation to the conclusions reached at paragraph 94. There the judge said:
"However for the purposes of this decision I will assume that the appellant was tortured as he described. If there is any other hearing in this case that may have to be established one way or the other as a clear finding of fact at that hearing, when the appellant may be represented. However I would not allow this appeal even if I had made findings of fact as the appellant states occurred, and so proceed on the basis that the finding of fact is unnecessary. There would need to be much greater exploration of the facts in evidence-in-chief and in cross-examination in order to make a secure finding of fact on that issue than was possible in the hearing before me, particularly as I take no judicial cognisance of findings of any previous hearing save uncontentious ones".
20. It is clear from this paragraph that it is as a direct consequence of his decision to refuse the adjournment request that the judge was unable to make 'a secure finding of fact' on a central issue in the Appellant's claim, that is whether he had been tortured in the past. In indicating that further exploration of the facts would be required in evidence-in-chief and cross-examination it seems that the judge was unable to make secure findings because the Appellant was not represented. It may also be because of the Appellant's PTSD or because of the lack of up-to-date medical evidence before him. These are all issues which would have been addressed and remedied had the Appellant been granted an adjournment. Therefore the judge's decision was adversely impacted by the refusal to grant the adjournment in that the judge was unable to make complete, secure and full findings in relation to the matters central to the Appellant's case.
21. It is therefore the cumulative effect of the fact that the judge treated the Appellant as a vulnerable adult yet failed to consider the Guidance along with the fact that the judge was unable to make secure findings on the very issues that would have been addressed by an adjournment that leads me to the conclusion that the judge materially erred in his approach to the adjournment application in this case.
22. It is contended in the third Ground of Appeal that the judge materially erred in his approach to the case of Devaseelan. This was accepted by the Respondent. I cannot agree with the Respondent's submission that this was not a material error. The guidance in Devaseelan is clear. As the decision of DIJ Manuell was not overturned that decision should be the starting point for any judge subsequently dealing with the case. Whilst it may be that First-tier Tribunal Judge Housego came to similar conclusions to those reached by DIJ Manuell it is difficult to say with confidence that had he approached the appeal in the correct manner the outcome would have been no different. Therefore there is a material error in the judge's approach to the evidence in terms of the guidance in Devaseelan.
23. I therefore find that the grounds have been established in this case. The errors identified go to the heart of the decision and to the fairness of the proceedings before First-tier Tribunal Housego therefore the decision should be set aside in its entirety.
24. The parties were in agreement with my view that, in these circumstances, the nature and extent of the judicial fact finding which is necessary in order for the decision to be remade is such that (having regard to the overriding objective in Rule 2 of the Upper Tribunal Procedure Rules 2008) it is appropriate to remit the case to the First-tier Tribunal.
25. The judge hearing the case in the First-tier Tribunal should obviously take the decision of DIJ Manuell as the starting point in accordance with the guidance in Devaseelan.
Notice of Decision

The decision of the First-tier Tribunal contained a material error of law and is set aside.

The appeal is remitted to the First-tier Tribunal to be heard afresh.

Signed Dated: 14 October 2016

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date: 14 October 2016

Deputy Upper Tribunal Judge Grimes