Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09439/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9 March 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

MK
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Brown, instructed by Platt Halpern Solicitors
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, MK, was born in 1966 and is a male citizen of Pakistan. He appealed to the First-tier Tribunal (Judge M Davies) against a decision of the respondent dated 15 March 2015 to refuse a grant of asylum and to remove him by way of directions under Section 10 of the Immigration and Asylum Act 1999. The appellant’s wife and daughter are dependants on his claim. The First-tier Tribunal, in a decision promulgated on 9 September 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. Summarising the appellant’s claim, Judge Davies wrote [17]
The appellant claimed that if he was returned to Pakistan he would be mistreated by various political parties and the Taliban as well as his wife’s maternal cousin and his wife’s relatives. These people demanded and extorted money from him. The appellant had lived in Karachi and operated a business selling threads. The appellant claimed that different political parties had demanded money from him including MQM and the Taliban and another group called Baba Ladla.
The appellant claimed that those wishing to harm him had burnt down his factory.
3. The judge recorded [67] that “the medical evidence indicates the appellant is not a well man and has chronic health conditions. I should take this into account when considering what reliance could be placed on the interview record”. The judge concluded that the inconsistencies in the appellant’s evidence “have arisen because the appellant has not been a truthful witness” [81]. The appellant had been unable, when asked on different occasions, to give the consistent date for the arson attack upon his factory. The judge noted that Counsel for the appellant at the hearing (Mr Schwenk) had
conceded in submissions on two separate occasions that the appellant’s evidence was far from clear. Not only would I concur with that remark but would concur that it is abundantly clear the appellant has fabricated the whole basis of his claim to be in need of international protection. [86]
4. In the grounds of appeal, the appellant asserts that the judge misunderstood the evidence. At [81], the judge had commented that
what is significant regarding the appellant’s claim to have suffered a loss of memory is that no evidence has been produced to confirm the appellant had suffered a memory loss. The evidence as to his medical conditions make no mention whatsoever as a result of those conditions the appellant has lost his memory.
The appellant asserts a medical report before the judge and which is dated 10 August 2016 indicated, inter alia, “dementia – getting worse”. The grounds of appeal set out an NHS definition of dementia showing that the condition may include problems with memory loss. The judge had also commented that “a report from a consultant might have been different”. The appellant asserts it was unfair of the judge to have not have taken account of his dementia and finding that the inconsistencies between his various accounts and the internal inconsistencies within his Asylum Interview Record were the consequence of deceit rather than illness.
5. Granting permission, Upper Tribunal Judge Perkins noted that other than saying that ‘“dementia is getting worse” the medical report says nothing about this condition’. Judge Perkins also raised the question of the materiality of any error on the part of the judge, given his other findings as to the credibility of the appellant.
6. I find that the appeal should be dismissed. I have reached that decision for the following reasons. First, I accept Mr Bates’ submission that the evidence of dementia itself in the form of the medical reports is by no means entirely clear. A report of 10 March 2016 also put in evidence failed to make any reference whatever to dementia, begging the question as to how the dementia had “got worse” between March 2016 and August 2016. It was unclear as to when the dementia had first been diagnosed. It was also unclear as to why in August 2016 the appellant’s advisors had considered it proper for the appellant to give oral evidence at the First-tier Tribunal hearing; if his dementia was so severe it created memory loss, that would appear to have been an unwise course of action. Significantly, the very brief mention of dementia in the later medical letter makes no express reference to memory loss at all. Considering the evidence and the decision as a whole, I am satisfied that Judge Davies was aware of the reference to dementia in the medical letter but I find that he did not err in law by failing to accept that the appellant had suffered memory loss which, in turn, had rendered his various accounts of past events incoherent. There was no proper diagnosis of dementia and no direct evidence from a medical professional that the appellant had suffered, in consequence of that or any other medical condtion, memory loss; whilst it may be possible to take judicial knowledge of the fact that dementia is often associated with memory loss it is, in my opinion, dangerous to assume that that must be so in every case. Such an assumption without a proper evidential foundation would be particularly dangerous where the chronology would indicate that the onset of dementia had been very recent. I find that there was simply not enough evidence before the judge to make it necessary for this Tribunal to interfere with his soundly reasoned findings on credibility.
Notice of Decision
7. This appeal is dismissed.

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 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 Date 20 March 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

As I have dismissed the appeal, there can be no fee award.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane