Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09401/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18th July 2016
On 13th September 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

ms e a
(aNONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N Braganza of Counsel, instructed by Wilson Solicitors LLP
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS
The Appellant
1. The appellant a citizen of Ghana born on 26th June 1961 appeals with permission against the decision of First-tier Tribunal Judge Rahman made on 15th April 2016 dismissing the appellant's claim for asylum, humanitarian protection and protection under the European Convention.
2. The appellant claimed to be a victim of trafficking having worked for an employer who was himself an employee of the Office of the High Commission for Ghana. She claimed to have worked for him between 28th November 2003 and 2008 and when his diplomatic status ended and he left the UK for Ghana. In the intervening period in 2007 the appellant returned to Ghana for a short holiday and subsequently returned to his employment. He assisted her in obtaining further employment because her salary in the UK was so low.
3. Her immigration history was such that she made an application for leave to remain as a overseas domestic worker on 31st March 2004 which was granted. A further application was made on 11th May 2005 which was also granted. She was granted further extensions of leave ultimately until 4th June 2009. On 2nd June 2009 she made an application for leave to remain as a domestic worker but was refused indefinite leave to remain with a right of appeal. She did lodge an appeal but it was ruled out of time and she became appeal rights exhausted. On 10th March 2010 she made a further application for leave to remain as a domestic worker but indefinite leave was again refused with no right of appeal.
4. On 19th October 2013 she was arrested whilst working illegally and was served with an IS151A. On 24th October 2013 she made a human rights, Article 3 application, and on 10th September 2014 she sought an appointment to claim asylum which she did formally on 16th September 2014.
5. Her case was referred to the national referral mechanism on 19th August 2013 and it would appear that she was referred by the Salvation Army on 17th August 2014 as a possible victim of trafficking. On 22nd August 2014 UKVI made a positive 'reasonable grounds' decision on the case affording her a recovery and reflection period until 5th October 2014. She was again assessed on 29th May 2015 and the caseworker concluded that on the balance of probabilities she had not been trafficked.
6. A decision was thus issued by the Secretary of State on 11th June 2015 refusing her asylum, humanitarian protection and protection under the European Convention and it was that decision which was appealed and determined by Judge Rahman.
7. The application for permission to appeal sets out four separate grounds in relation to the treatment of the evidence:
(i) the judge failed to provide a rational basis and/or cogent reasons for rejecting recent medical evidence of the appellant's suicide risk and mental illness.
(ii) misdirected himself in law in rejecting the medical evidence as independent evidence of the appellant's claim to have been raped, R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521.
(iii) in rejecting the appellant's account of rape, took into account irrelevant considerations and/or unlawfully relied on prejudicial assumptions as to how rape victims should be expected to behave; and
(iv) in assessing the appellant's account of trafficking, failed to consider relevant guidance or conduct on analysis independent of the respondent.
8. In relation to ground (i) it was asserted that the appellant had adduced recent medical evidence in the form of a medico-legal report dated 4th March 2016 by clinical psychologist Dr Chisholm and Dr Whittikar-Howe (specialists in mental health difficulties following traumatic events, asylum seeker and refugee mental health). This report diagnosed post-traumatic stress disorder with psychotic symptoms. The judge compared this with discharge summary dated 27th July 2015 completed by a community mental health nurse at Barnet Enfield and Haringey Hospital and at paragraph 113 stated
"I find no reasonable explanation for the deterioration in the appellant's mental state and the increased suicide risk between July 2015 and the consultation in 2016."
9. It was asserted this did not provide a rational basis or adequate reasoning for rejecting the evidence as the cause or explanation for the appellant's mental state, reasonable or otherwise was not a matter for the Tribunal but the clinical expertise of the authors of the report. Second the role of the report was to provide evidence of the appellant's current symptoms of a subjective fear of return and it was immaterial whether such fear was well-founded or whether the symptoms permitted a reasonable explanation. Third, the analysis was at odds with the Court of Appeal in R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521. Albeit that the report was based on the appellant's testimony that did not undermine its value as an independent evidence of the appellant's symptoms. At the hearing before me Ms Braganza also stated that the judge had not placed emphasis on the qualifications of the expert. I would disagree with that as the judge clearly set out the nature of the qualifications of the experts at paragraph 69 of the decision referring to them both as chartered clinical psychologists.
10. There are some difficulties with the treatment of the medical evidence in this case and it would appear that the judge rejected the report from Dr Chisholm and Dr Whittikar-Howe on the basis that it did not accord with the evidence that the appellant had given. The judge notes at paragraph 115, 116 and 117 that in the appellant's own evidence there were conflicting accounts. The judge also rejected the evidence on the basis that there were significant differences in the reports from the clinical psychologist and the hospital report concerning the severity of the appellant's mental health and the degree of suicide risk. He makes reference to the fact that the report from Dr Chisholm was in response to a refusal of the appellant's claim albeit that it is only implicit that that is a criticism of the evidence but he states that he finds "no reasonable explanation for the deterioration". On a careful reading of the report from the mental health nurse, which the judge does note the appellant states that she has been "relatively healthy". The hospital report also states that the Appellant in the past has had thoughts to kill herself however due to her faith she would not act on these thoughts". At the same time it states "at the moment she does not have any plans to kill or harm herself".
11. What, however, is identified in the report dated 29th July 2015 from the mental health nurse is the line "current cluster five - non-psychotic disorders (very severe) (six months)".
12. The judge had identified a lack of reasonable explanation for the deterioration but failed to identify why the second report was effectively rejected save for the fact that there was a 'deterioration' in her health and relied on her own discrepant evidence.
13. As pointed out in the grounds of appeal the appellant was described as a highly vulnerable witness. Any assessment of the medical reports should also have been assessed in the light of the vulnerable witness guidelines and that does not appear to have occurred. That was obliquely referred to in the grounds for appeal and not surprisingly expanded upon by Ms Braganza. At paragraph 119 the judge states:
"Having considered all the evidence, applying the lower standard of proof, and for the reasons set out above, I do not find the appellant's account credible. I am not satisfied that the appellant was trafficked or that she had been mistreated in any way whatsoever by her previous employer."
14. Ms Braganza did point out that the judge had not addressed the guidelines in relation to trafficking (ground iv) and I can understand that the judge would resist following those guidelines because he concluded that she had not been trafficked but in order to assess the appellant's evidence particularly as the judge at paragraph 123 stated: "I accept that the appellant has a degree of mental illness" it was important that he did make reference to those Presidential guidelines on vulnerable witnesses which he did not.
15. IY Turkey [2012] EWCA Civ 1560 makes it clear that it is open to a judge to reject a medical report although any judge must proceed with caution and require to have particular justifiable reasons for not accepting the evidence but as set out in IY:
"43. Mr Bazini, for his part, rightly accepted that the FTTJ was not bound to accept Professor Katona's report, even where it had not been challenged in cross-examination. But in such circumstances I do accept his submission that, to reject it, the FTTJ was required to proceed with caution and was required to have, and articulate, justifiable reasons for not accepting the evidence. The general position is summarised, in my view accurately, by Stanley Burnton LJ in the case of SS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 155 at paragraph 21 of his judgment:
'21. Generally speaking, the weight, if any, to be given to expert (or indeed any) evidence is a matter for the trial judge (here Senior Immigration Judge Spencer). A judge's decision not to accept expert evidence does not involve an error of law on his part, provided he approaches that evidence with appropriate care and gives good reasons for his decision. Ultimately, therefore, there are only two issues as to the Senior Immigration Judge's treatment of the medical evidence: did he address that evidence with appropriate care and did he give good reasons for his conclusion? Those two questions are interrelated. It is difficult to conceive of a case in which a judge gives adequate reasons for his conclusions on expert evidence yet he is held to have exercised insufficient care. His reasons demonstrate his care.'"
16. In relation to ground (iii) it is open to a judge to take into account how the appellant had proved himself able at the Tribunal hearing in answering questions in cross-examination but the judge approached the evidence on the basis that 'she was not and did not look upset or distressed and engaged well with the tribunal'. [114] That is not necessarily an indicator of previous experience and no doubt individuals will vary greatly as to the degree of emotion they show when describing events.
17. The question of whether an appellant's account of the underlying events is or is not credible is a question for the judge but that evidence must be approached carefully and owing to the approach identified above and the absence of any reference to the vulnerable witness guidelines, which I note were produced to the judge as they are in the bundle produced by the appellant to the First-tier Tribunal, the findings are therefore undermined.
18. Any credibility findings would also be relevant to an assessment in relation to suicide risk which I also note the judge did not address. At paragraph 123 the judge approached the case on the basis of N v Secretary of State for the Home Department [2005] UKHL 31 and whether the appellant's illness had reached a critical stage and proceeded to assess the evidence in relation to Ghana but that is not the only ground of appeal that was taken in relation to this case.
The credibility findings are key in this matter and the assessment of medical evidence will underpin those findings and, in turn, relevant in relation to the assessment on risk on return. It is the appellant's case that she is at risk from an ex-government official and as such any assessment of her mental health is relevant to her findings of risk on return. For the reasons identified above I find an error of law in the decision.
Notice of Decision
19. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Rimington 13th September 2016