Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08446/2014

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision and Reasons Promulgated
On 7 July 2016
On 8 November 2016

Before

DEPUTE UPPER TRIBUNAL JUDGE L J MURRAY

Between

A A S O
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Neale instructed by Migrant Legal Project, Cardiff
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Libya. He appealed under section 82 (1) of the Nationality, Immigration and Asylum Act 2002 against the Respondent's decision of 3 October 2014 to refuse him asylum, humanitarian protection and against the decision that removal would not breach his rights under the European Convention on Human Rights (ECHR). His appeal was dismissed by First-tier Tribunal Judge Solly in a decision promulgated on 21 November 2015. The Appellant sought permission to appeal that decision and permission was granted by the Upper Tribunal on renewal. In granting permission, Upper Tribunal Judge Gill found it arguable that the Judge may have erred in the approach to the evidence of Dr Battersby and may have misapprehended the evidence. Permission was granted on all grounds.
The Grounds
2. Ground 1 asserts that the First-tier Tribunal failed to follow the Joint Presidential Guidance Note 2 2010, Child, Vulnerable adult and sensitive appellant guidance, having been alerted to the Appellant's diagnosis of moderate PTSD and survivors guilt. Ground 2 asserts that the First-tier Tribunal failed to fully consider the psychiatric report of Dr Battersby. Ground 3 asserts that the First-tier Tribunal erred by determining the issue of credibility a priori and used that as a basis to discount Dr Battersby's report. Ground 4 asserts that the First-tier Tribunal erred by discounting the Appellant's account to Dr Battersby that he had worked in a prison when this was not materially challenged in any way in live evidence. Ground 5 contends that the First-tier Tribunal fell into error by appearing to reject Dr Battersby's diagnosis of PTSD, survivor's guilt and high risk of suicide. Ground 6 asserts that the First-tier Tribunal erred in concluding that because the Appellant survived away from Benghazi for two years prior to coming to the UK in 2013 it would be safe for him to return there currently. Ground 7 contends that the First-tier Tribunal was wrong to conclude that the Appellant encountered no problems before leaving Libya and Ground 8 argues that the First-tier Tribunal erred by concluding that the documents the Appellant served could not relied on because they were self-serving.
The Rule 24 Response
3. The Respondent opposed the Appellant's appeal and submitted that the First-tier Tribunal directed itself appropriately. It is contended that the Judge properly considered the medical report in relation to the credibility issues and highlighted the obvious discrepancies between what the Appellant said in the report and the failure to mention that he had been detained.
The Hearing
4. Mr Neale relied on his skeleton argument and on the grounds for permission to appeal. He added that the preponderance of the grounds related to the medical report. The Judge had catalogued everything she saw as an inconsistency and the approach disclosed several errors. The expert's report was supposed to be considered in order to address credibility. She had dismissed it in part because she did not find the Appellant credible. It was compliant with the Istanbul Protocol and it was clear that Dr Battersby had carried out independent support for his account. That should have given rise to treating him as a vulnerable witness. She addressed his ability to recall, PTSD relating to trauma and events surrounding that. Had the First-tier Tribunal Judge directed herself properly that would clearly have made a difference. The inconsistencies as to details in the Appellant's account could be explained by PTSD. At E16 of Dr Battersby's report was a reference to detention. There was a single phrase in error in the report of Dr Battersby and that was not a sufficient basis for throwing out the whole report. The report set out the Appellant's account in depth. It set out his demeanour, his presentation and body language and reasons why he had PTSD. Mr Neale was not saying the Judge would have been obliged to make a positive credibility but it could have made a difference. The medical evidence could have made a difference to the way she considered inconsistences. To an extent all the grounds were interlinked. He invited me to find an error of law on that basis.
5. Ground 6 concerned the findings on the country situation. The First-tier Tribunal was invited to make up to date findings on the situation in Benghazi. It was still incumbent on her to make a finding as to Article 15 (c). AT and others considered events up to 2013. Two rival governments emerged and the country descended deeper into civil war. The evidence before Judge Solley made clear that there had been shelling and arms fire in populated areas in Benghazi. A large part of the city's infrastructure was reduced to rubble. At paragraph 39 she had not deal with that issue and glossed it over. She had before her the UNHCR Report from 2014 indicating that returns should cease. Reasons needed to be given for not following this. It was not just the UNHCR's view. There were other reports from humanitarian and other organisations. This influenced judge's views on internal relocation. At paragraph 43 to 46 she had not dealt with the conditions of IDPs. He would be joining the ranks of the internally displaced. He did not argue that she was obliged to find that there was an article 15 (c) risk but she was bound to apply the test in Elgafaji v Staatssecretaris van Justitie [2009] ECR 1-921. If she erred in her assessment of credibility she could have found risk and then would have had to consider internal relocation and then come back to country evidence.
6. Ground 7 concerned the misstatement of the contents of the Appellant's evidence. This bolstered the submission on relocation. Ground 8 also concerned credibility and dealt with Libyan documents. Dr George concluded that they were genuine and the First-tier Tribunal failed to have regard to them as she concluded they were self-serving. That was not a good reason. The Appellant did not explain how his friend obtained the documents. It was not clear why she thought he would have knowledge or why he was asked. It was not a point that was in evidence and not a sufficient reason for rejecting these documents. Ground 4 concerned RR (Challenging evidence) Sri Lanka [2010] UKUT 274 (IAC) which dealt with how the Respondent should approach cross-examination. That was not followed in this case. The Judge drew an adverse inference with regard to a discrepancy that was not put or challenged and in the R24 response it had not been sought to suggest that the grounds were factually incorrect. It was unfair to take this point after the hearing. The overwhelming strong points were in relation to the medical evidence and the country evidence.
7. Mr Richards submitted that there was no material error of law in the First-tier Judge's decision. She had concluded a thorough examination of the evidence and came to conclusions properly open to her. It really did not matter where she placed her consideration of the psychiatric evidence because she rejected that evidence. It had no material benefit to the Appellant. She rejected the evidence for extremely good reasons. The Battersby's report made a key finding at E16 of the Appellant's bundle where she said in terms that the Appellant's presentation was highly consistent with someone who had described events in detention. He had never claimed to be in detention. It was an extraordinary and glaring discrepancy in the evidence. The grounds said that it was either a mistake or she was referring to the period the Appellant spent working in a prison. That could not possibly be a plausible explanation for an expert saying in the clearest terms he experienced this in detention. It was capable only of one meaning and the Judge was wholly justified in taking the view that this undermined the Battersby report and for the Judge to give no weight to Dr Battersby's conclusions. Once that conclusion was reached it was entirely open to the Judge to embark on her analysis as a whole and to conclude that the evidence as a whole was not credible to the appropriate standard of proof. As to the argument on whether the Judge should have departed from country guidance case law she properly directed herself as to the weight to be given to country guidance case law and did clearly take account of the background evidence which was produced on behalf of the Appellant. In paragraph 34 she referred to the background evidence produced and noted laconically that it was clear that Libya was an unfortunate country. AT and others (Article 15 c; risk categories) Libya CG [2014] UKUT 318 was found to be binding. She concluded that there was no generalised risk on return and it was worth noting that she did consider internal relocation at paragraph 41 concluding it was available. He asked me to find that the Judge had properly considered the whole of the evidence and there was no material legal error in the conclusions that she reached or in the way that she reached them.
8. In reply Mr Neale said that it was not just the structure and the order but the approach which infected the substance of the conclusions. She made findings on credibility and then went on to dismiss the medical report. In SA v SSHD [2006] EWCA Civ 1302 and Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 in the Court of Appeal said that it was the wrong way around. It was wrong to say that these two words 'in detention' were enough to dismiss the report. The report could not be dismissed on the basis of these two words. She had not engaged with the reasoning. If she thought that the diagnosis of PTSD had been undermined she should have said so. In ordinary circumstances country guidance should be followed but it was incumbent on the Judge to make findings on up to date evidence on Benghazi. He asked for the case to be remitted to be heard de novo with no findings preserved.
Discussion and Findings
9. A number of the grounds relate to the treatment by the First-tier Tribunal of the medical evidence of Dr Battersby and I therefore deal with them together. The Appellant relied on a psychiatric report by Dr A Battersby, Consultant General Adult Psychiatrist. She interviewed the Appellant on 7 November 2015 for two hours and prepared a 23 page report in compliance with the Istanbul Protocol. She set out the background information provided by the Migrant Legal Project and confirmed that she had read his screening interview, asylum interview, statement, the reasons for refusal letter (RFRL) and medical letters. She set out his family history, his personal history, his past medical and psychiatric history (he had already been diagnosed with PTSD by a psychiatrist), his medication, habits, social history, relationships, occupational history and then analysed his mental health. She concluded that he suffered from moderate PTSD. She analysed his mental state by reference to ICD-10 (International Classification of Disease - 10).
10. Her opinion regarding his ability to give evidence, the cogency of evidence and risk of re-traumatisation is at E19 of the report where she states the following:
"(The Appellant) has a reasonable level of pre-morbid intellect. He is able to understand the Tribunal processes. The cogency of his evidence is likely to be reduced by his continued PTSD symptoms. Memory and recall are impaired in PTSD. This will impair cogency and consistency of evidence when discussing traumatic events. (The Appellant) is overwhelmingly guilty at what has happened to his brothers.
In my opinion, (the Appellant) is able to respond normally to the Tribunal processes for most subjects. My concern would be the episodes of his interview where he was really difficult to understand/follow his story. I have considered whether the slightly different dialect of the interpreter may have been a factor, but after due consideration, this does not explain the extent of his behaviour. For significant time periods he would start and not finish sentences and I could not make sense of his account. I have considered whether this could be a psychotic process but I find this unlikely. On balance, in my opinion, the most likely explanation is that a combination of his PTSD and survivor's guilt result in him becoming very distracted by thoughts/images in his head that result in incomplete sentences and non-sequential story lines. At these times, he would often stare and appear distressed. Prior to my interview, I had spoken with his legal representative, Mr Shepherd, who had also observed this odd behaviour. At these times, (the Appellant) is unlikely to be able to take in information, process it and respond appropriately. Robust cross-examination whilst in this state is likely to be unproductive and possibly re-traumatising. He may need to have a break and calm down before re-commencing. It is difficult to predict how he will respond at Tribunal but given that these behaviours have occurred in less stressful settings it is more likely that they will occur. In my opinion, they are far more likely to be related to his mental state than trying to be obstructive or disrespectful to the Tribunal process."
11. The First-tier Tribunal dealt with Dr Battersby's report at paragraph 20 and 40 to 42 of the decision. The approach taken by the Judge is to list the "defects" or inconsistencies in the Appellant's evidence (paragraphs 15 to 39), find that he is not credible and then, after these findings have been made, find that the inconsistencies cannot be explained by the medical evidence (paragraphs 40 to 42). The Judge's findings are as follows:
"40. For the appellant it is submitted that any inconsistencies in his evidence can be explained by taking into account the report of Dr Battersby concluded that he suffers from moderate PTSD as well as survivor's guilt. She further indicates that he is at high risk of suicide should he be returned to Libya.
41. Dr Battersby indicates that his account is highly consistent of his account of being in detention (page E16) however the Home Office Presenting Officer has advised me that the appellant has not been detained in the UK and the Appellant gives no account of having been detained in Libya. She also records the account of the appellant working in prison which appears nowhere else.
42. I consider that these inconsistencies concerning detention, working in a prison, no history of witnesses the life threatening events of the death and abduction of his brother, cast considerable doubt on the medical opinion in this case. Given my findings on credibility and these issues I do not accept the expert opinion of Dr Battersby. Having rejected this opinion I cannot accept the view that inconsistencies in the Appellant's evidence are due to his mental health."
12. It is clear from reading Dr Battersby's report that she did not take the Appellant's account at face value. She carried out a critical and objective analysis of the symptoms displayed and applied the framework of the Istanbul Protocol. Her reasons for finding that his clinical presentation was highly consistent with the events he claimed that occurred were well-reasoned. The First-tier tribunal found, at paragraph 41 and 42 that there were differences between the Appellant's account elsewhere and the account given to Dr Battersby. The main reason, however, for rejecting the report of the expert was Dr Battersby's conclusion at E16 where she stated "therefore in my opinion, (the Appellant's) presentation is highly consistent with someone who has experienced the events he describes in detention". It is the Respondent's case that the Judge was right to find that this undermined the conclusions in the report. I do not agree. It is entirely self-evident when read as a whole that Dr Battersby knew that the Appellant did not ever allege that he had been detained. It is clear from her exposition of his narrative that he never said that and she it is also clear from the body of her reasoning in relation to his material history that she did not evaluate his case on the basis of an account that he had been detained. I conclude that it was an unfortunate error and certainly not a reason for rejecting a medical opinion that was well-reasoned and from a suitably qualified expert whose methodology and approach was unimpeachable and not criticised. I find that the First-tier Tribunal erred in disregarding the evidence of Dr Battersby for this reason. Adequate reasons were not given.
13. In light of Dr Battersby's conclusions at E19 in relation to the effect of the Appellant's PTSD on his ability to give evidence it was incumbent on the First-tier Tribunal to consider whether the Appellant was a vulnerable witness for the purpose of the Joint Presidential Guidance Note No 2 2010, Child, Vulnerable adult and sensitive appellant guidance. According to footnote 2 of that Guidance some adults are vulnerable because they are suffering from PTSD. The guidance requires, at paragraphs 14 and 15 that the evidence is to be considered allowing for possible different degrees of understanding by witnesses. Where there are clear discrepancies in the oral evidence the Tribunal is enjoined to consider the extent in which the age, vulnerability or sensitivity of the witnesses are an element of that discrepancy or lack of clarity. The requirement to apply this guidance is confirmed in JL (medical reports-credibility) China [2013] UKUT 00145.
14. In failing to apply this guidance the First-tier Tribunal made no finding on whether the Appellant was a vulnerable witness. I have found that the reason given for rejecting Dr Battersby's medical opinion was flawed. The First-tier tribunal should have made a finding on whether or not the Appellant was a vulnerable witness and what effect this had on his credibility.
15. I find that the First-tier Tribunal also erred in its approach to the medical evidence in making findings in relation to credibility first and then using that as a reason to reject the report of Dr Battersby and its diagnosis. In Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 Mr Justice Wilson stated at paragraph 24:
"What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence. Mr Tam has drawn the court's attention to a decision of the tribunal dated 5 November 2004, namely HE (DRC - Credibility and Psychiatric Reports) [2004] UKIAT 00321 in which, in paragraph 22, it said:
"Where the report is specifically relied on as a factor relevant to credibility, the Adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusions to which he would otherwise come."
16. It is clear from paragraphs 40 to 42 that the Tribunal adopted this erroneous approach. The errors in relation to the medical evidence are such that the findings in relation to credibility cannot stand. These findings in turn effected the First-tier Tribunal's conclusions in relation to the documentation the Appellant relied on and the assessment of risk against the background evidence. In the circumstances and in accordance with paragraph 7.2 of the Practice Statements for the Immigration and Asylum Chamber of the First-tier Tribunal and Upper-Tier Tribunal, the extent of the judicial fact finding is such that the decision in the appeal should be remade in the First-tier Tribunal.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the decision to the First-tier Tribunal for rehearing with no findings of fact preserved.
Anonymity
The First-tier Tribunal made an order and I continue that order (pursuant to 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 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.

Signed Dated

Deputy Upper Tribunal Judge L J Murray