Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08240/2013

THE IMMIGRATION ACTS

Heard at: Columbus House, Newport
Decision and Reasons Promulgated
On: 14 July 2016
On: 10 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE J F W PHILLIPS

Between

ZN
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Lay, Counsel instructed by Migrant Legal Project
For the Respondent: Mr I Richards, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. This is an appeal against the determination of First-tier Tribunal Judge O'Brien in which he dismissed the appeal of the Appellant, a citizen of Uganda, against the Secretary of State's decision to refuse asylum and set removal directions.

2. The Appellant arrived in the United Kingdom on 22 December 2002 and having been given leave to enter as a visitor for 6 months overstayed that leave eventually making an application for leave to remain on 27 December 2012. That application was refused on 1 May 2013 and on 19 June 2013 the Appellant claimed asylum. Her application was refused by the Respondent on 15 August 2013. The Appellant exercised her right of appeal against this decision and her appeal was heard by First-tier Tribunal Judge Whiting on 1 October 20143v and dismissed. Following a successful appeal against this decision to the Upper Tribunal the Appellant's appeal was remitted for hearing afresh by the First-tier Tribunal. This is the appeal that was heard before Judge O'Brien on 27 August 2015 and dismissed. The Appellant's application for permission to appeal against the First-tier Tribunal Judge's decision was granted on 9 November 2015 by First-tier Tribunal Judge Brunnen in the following terms

The grounds on which permission to appeal is sought submit that the Judge erred in law in that, it having been submitted that the Appellant was a vulnerable witness on account of the diagnosis of complex PTSD, he failed to make any findings as to whether she was a vulnerable witness or as to the extent to which her vulnerability affected her evidence. The grounds cite JL [2013] UKUT 145 (IAC).

The grounds are arguable. Paragraph 26 of the determination in JL is of particular relevance.

3. By a rule 24 response dated 23 November 2015 the Respondent opposed the appeal.

4. At the hearing before me Mr Richards appeared for the Secretary of State and Mr Lay represented the Appellant. No skeleton arguments were submitted.

Background

5. The Appellant is a 41-year-old Ugandan citizen who arrived in the United Kingdom at the age of 28. The Appellant claims that she was trafficked to the United Kingdom by a person who had agreed to help to further her career as a traditional Ugandan dancer. She was forced to act as a nanny and housekeeper once in the United Kingdom and sexually abused by her trafficker's brothers. Eventually the Appellant escaped with the help of a man whom she met on a bus, she commenced a relationship with this man and lived with him. However this man became abusive to her and she was forced to beg on the streets and engage in prostitution. Initially the Appellant also claimed to be at risk on return because her father, a soldier in the Idi Amin era, had been sentenced to death for murder and she feared revenge from the families of his victims. Further she claimed to be at risk because of her sexual orientation. At the First-tier Tribunal hearing before Judge Whiting the Appellant was found to be incredible on all grounds. This decision was upheld by the Upper Tribunal so far as her claim based upon her sexual orientation and her father's involvement with the Idi Amin regime were concerned. The matter was remitted to the First-tier Tribunal only in respect of the Appellant's claim to have been trafficked and to face re-trafficking on return as a result.

6. At the hearing before first-tier Tribunal Judge O'Brien the Appellant gave oral evidence. In dismissing the Appellant's appeal the Judge did not accept that the Appellant was giving a true account primarily because of various inconsistencies in her evidence.

Submissions

7. In answer to my initial question Mr Lay said that the materiality of the error of law asserted flows from the assessment of inconsistencies in the Appellant's account. There is no indication that the Appellant was treated as a vulnerable witness. The First-tier Tribunal Judge found that inconsistencies in the Appellant's account were fatal to her credibility and in doing so he has not considered the narrow issue of her accepted vulnerability and the ways in which this would affect her evidence. The expert's report from Dr Battersby shows that the appellant was a vulnerable witness. It is clear from JL (medical reports-credibility) China [2013] UKUT 00145 (IAC) that the judge needed to deal with and consider the effect of vulnerability. I was asked to look at the Joint Presidential Guidance Note no 2 of 2010. The Judge does not take into account or consider whether a victim of trafficking would be consistent in her account. He should not have treated this like a normal asylum claim.

8. For the Respondent Mr Richards said that having read the skeleton argument submitted to the First-tier Tribunal there is no mention of the impact of vulnerability on credibility findings. It is however clear that at the hearing Counsel made much of how the Appellant should be treated when giving evidence. The First-tier Tribunal Judge did what was required. Paragraphs 49 and 50 acknowledge the expert's conclusion in respect of the Appellant's account but the Judge rightly reminds himself that he is entitled to form his own view and in doing so he takes into account Dr Battersby's opinion. Dr Battersby said the Appellant had good recall and was able to describe past experiences. The Judge was entitled to find this was an articulate witness with good recall. There was no error of law. Turning to JL (medical reports - credibility) China Mr Richards said that this fits in to the extent that if the expert concludes that the witness is articulate with good recall vulnerability does not have a significant impact. The Judge made clear findings on the evidence. There was no material error of law.

9. In response Mr Lay referred again to the experts' report of Ms Stepnitz and Dr Battersby. The Judge needed to be explicit and he was not. He did not indicate that he had applied JL (medical reports - credibility) China. Paragraph 55 refers to there being no cogent explanation for why the account has mutated over time and whereas the Appellant's vulnerability was a potential explanation that should have been considered.

10. I reserved decision.

Error of law

11. The Appellant is a citizen of Uganda who claims to have been trafficked to the United Kingdom and to have been abused by her trafficker ("BM") and others in this country. On escape from her trafficker the Appellant claims to have formed a relationship with a Ugandan/British man who also abused her and forced her to work as a prostitute to earn money for him. Having escaped this man in 2012 and having failed in an application for leave to remain as the victim of domestic violence the Appellant claimed asylum. Her claim was rejected and her appeal against refusal was dismissed. Upon referral to the Upper Tribunal the dismissal of the Appellant's appeal was upheld on two out of the three grounds upon which it was based. It was remitted to the First-tier Tribunal for rehearing restricted to the third ground being that as a victim of trafficking the Appellant fell within a particular social group and had a well-founded fear of persecution through re-trafficking upon a return to Uganda.

12. At the hearing before the First-tier tribunal the Appellant submitted experts' reports from Abigail Stepnitz an expert in human trafficking and Dr Alison Battersby a consultant psychiatrist. She provided written witness statements and she gave oral evidence. The Judge was fully alive to the contents of both reports as is readily apparent from the decision and having considered both reports and the Appellant's written and oral evidence he decided that the Appellant was not credible due to various discrepancies in her evidence. The only challenge to the Judge's decision is the assertion that in making his credibility assessment he did not consider whether the Appellant's status as a vulnerable witness may have had an effect of her evidence, in particular whether the inconsistences in her evidence forming the basis of his credibility finding could be explained by the trauma that she had suffered.

13. In my judgement this is an assertion with significant element of artificiality and expediency. The original decision of the First-tier Tribunal was based on adverse credibility findings in respect of all aspects of her asylum claim. Adverse credibility findings were made in respect of all limbs of her claim and the grounds of appeal to the Upper Tribunal did not suggest that her status as a vulnerable witness made these findings unsafe. The Upper Tribunal upheld the adverse credibility findings in respect of two limbs of her claim and set aside the decision in respect of the third limb, human trafficking, because the First-tier Tribunal Judge had not shown that he had considered the expert report of Alison Stepnitz. In these circumstances it may have been better and avoided the significant delay if the matter had been retained in the Upper Tribunal for this limited issue to be resolved.

14. In any event the matter was remitted to the First-tierTtribunal. The only issue was the question of trafficking. It is perhaps unclear how, even if a positive credibility finding had been made, the issue of risk on return could have been made out with the alleged trafficking having taken place some 14 years previously. Nevertheless, the appeal proceeded and the Judge made adverse credibility findings based upon inconsistencies in the Appellant's account. In a clearly structured decision the Judge did not merely refer to taking all the evidence into account but, at paragraph 3 he details that evidence giving a very clear indication that he was not paying mere lip service to the voluminous documentation that was before him. The Judge comprehensively recites the Appellant's account.

15. It is asserted that it was submitted at the outset of the hearing that the Appellant should be treated as a vulnerable witness and noted in the grounds of appeal that the judge appears to accept the diagnosis of complex PTSD. There is no reason in my judgment to suggest that the Judge did anything other than treat the Appellant as a vulnerable witness. There is no requirement for him to recite that fact in his decision. JL (medical reports - credibility) China does not suggest that the Judge needs to recite the Joint Presidential guidance only that he should apply it.

16. The Judge was assisted in his consideration by a detailed Psychiatric Report prepared by Dr Alison Battersby on 30 July 2015. This report was prepared after the case was remitted to the First-tier Tribunal to re-make the decision in respect of the Appellant's trafficking claim. In preparing the report Dr Battersby took into account, inter alia, the first and supplementary reports from Abigail Stepnitz, the asylum interview, the Appellant's witness statements and the initial and supplementary refusal letters. Dr Battersby was asked a number of specific questions. All of them are relevant but so far as this appeal is concerned question 9 stands out.
Do you think that (the Appellant's) ability to recall details of her past experiences has been impaired by any trauma that she has suffered? If so, can you describe the nature of the impairment and explain how such trauma would have impaired her ability to answer questions in interview or subsequently.
The response reads:
(The Appellant) appears to have good recall of the trauma that she has suffered. Objectively her concentration was good. In my opinion, her ability to recall trauma is not significantly impaired. She does become distressed when talking about sexual exploitation from (BM's) brothers. She does disconnect from her emotions connected to these events which could be misinterpreted as being unaffected by them. It is pathological that she is able to describe most of these events without any emotional content and this is highly consistent with victims of repeated sexual victimisation.
Question 13 is also pertinent:
Do you think (the Appellant's) ability to represent herself is impaired by her mental health problems and/or past experiences?
Answer:
In my opinion, (the Appellant) although a traumatised individual is able to adequately represent herself. She may become distressed at times and may need a short break but can describe well her past experiences.

17. In my judgment the Report from Dr Battersby clearly identifies the Appellant's vulnerability and having done so considers the effect of that vulnerability and the causes behind it on the Appellant's ability to recall and give evidence. It is a professional report prepared on the Appellant's behalf. The Judge very clearly took this report into account in reaching his own conclusions as to the Appellant's credibility. The Judge was fully entitled, indeed bound, to take this report into account. Indeed, for the Judge to come to a separate and different view of the Appellant's abilities in these respects would have not only been beyond his expertise but also irrational when expert evidence was being submitted on the Appellant's behalf.

18. There is in my judgement nothing to indicate that the Judge was not only fully aware of the Appellant's psychiatric condition and consequent vulnerability as put forward by Dr Battersby and its potential effect on her ability to give evidence but also that he gave this full and proper consideration in accordance with the Joint Presidential Guidance. There is in my judgment no error of law material to the Judge's decision to dismiss this appeal.

Conclusion

19. The decision of the First-tier Tribunal did not involve the making of an error of law for the reasons set out above.

20. This appeal is dismissed. The decision of the First-tier Tribunal stands.

Signed: Date: 10/08/2016

J F W Phillips
Deputy Judge of the Upper Tribunal