Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09864/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 31 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

DMPT
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms J Blair of Counsel, instructed by Switalskis (Huddersfield)
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant is a female citizen of Congo-Brazzaville born on 3 September 1984. The appellant appealed to the First-tier Tribunal against a decision of the respondent dated 23 June 2015 to refuse the appellant's asylum claim. In a Decision and Reasons promulgated on 7 November 2016 Judge of the First-tier Tribunal Abebrese dismissed the appellant's appeal on asylum, humanitarian protection and human rights grounds.
2. The appellant appeals with permission. The grounds of appeal are as follows:
(1) Failure to consider relevant factors/evidence in respect of the medical report when assessing credibility;
(2) failure to take material evidence into account;
(3) taking into consideration irrelevant considerations/irrationality;
(4) error of law on Article 8.
The judge granting permission to appeal to the Upper Tribunal indicated that all issues were arguable and in particular the judge made a finding that the appellant could reasonably be expected to continue her private and family life in the DRC/Brazzaville on the basis of no specific evidence. The permission judge was also of the view that it was arguable that the judge should have heard evidence upon this discrete issue from the appellant and the appellant's partner.
3. Ms Blair relied on her detailed grounds of appeal. In relation specifically to the medico-legal report, this was an Istanbul Protocol compliant medico-legal report produced by the Medical Foundation and the respondent's published policy accepts that Medical Foundation reports are produced by specialist experts. There were three particular issues. The judge only assessed the medical report at paragraphs [56] and [57] after he had reached his negative credibility findings contrary to the relevant jurisprudence including the Court of Appeal in Minani [2004] EWHC 582. It was submitted that the judge had made his mind up already and did not use the expert report as part of his credibility assessment. The judge also fails to take into consideration the detailed critique in the expert report in relation to the appellant's asylum claim including that the medico-legal report set out an evaluation including as to why the appellant might have been vague. In addition, in terms of the appellant's substantive evidence, the judge criticised the appellant for being vague. However, following three very detailed sessions, given the difficulty that the appellant had in giving evidence, the appellant provided a much more detailed account in her expert report including paragraphs 13 to 16 of the medico-legal report and this was not taken into account by the judge and it was not clear that this had been taken into consideration when credibility was assessed.
4. In addition, it was submitted that the judge made significant errors in his consideration of the expert report at [56] and [57], in particular stating that less than half of the lesions were attributed to torture: "I make the finding that in relation to the lesions that less than half of them are being attributed to the incidents being relied upon by the appellant." However, it was submitted that this was a clear error of fact as the expert report confirms that all of the injuries are at least consistent with torture (except for a stabbing injury which was found to be typical) and Ms Blair relied on paragraphs 49 to 54 of the expert report where thirteen injuries are attributed to torture. The judge was therefore wrong to conclude that only seven of the nineteen lesions are considered consistent with torture, as set out at paragraphs 49 to 54 of the expert report. It was submitted that this probative evidence was misunderstood. In addition, the judge only made one reference to PTSD but failed to take into account the evidence on mental health, despite there being a diagnosis of posttraumatic stress disorder and made no findings on the fact that her partner gave corroborative evidence in relation for example to the appellant's nightmares and her mental health issues.
5. Mr Walker noted that the Rule 24 response of the respondent dated 16 December 2016 opposed the appeal and stated that the judge had provided extensive reasonings including recording the medical evidence. However, Mr Walker indicated that the report of the Medical Foundation had not been before the author of the Rule 24 response. It was Mr Walker's concession that, having considered that report, it was clear that the judge had made material errors in his consideration of the medical report, as identified by Ms Blair. He also considered that the judge failed to make adequate findings in relation to the evidence of the second witness.
6. I am satisfied that that has to be the case and that the decision of the First-tier Tribunal cannot stand when the identified errors are considered in their entirety. In particular the consideration of the medical report, both the fact that it was not considered until after a negative credibility finding had been reached and the fact that substantive factual issues, which go to the heart of the assessment of the appellant's credibility, were misunderstood. It is also of concern that although the judge noted the diagnosis of PTSD there were no findings in relation to how that might have impacted the appellant's ability to give evidence and the judge, although noting that the evidence suggested PTSD, did not make any findings and, as already noted, did not make any findings in relation to the appellant's husband's evidence.
7. Although the judge noted at [20] that the representative requested that the appellant be treated as a vulnerable witness there was no further indication that the appellant's vulnerabilities were considered by the judge in reaching the negative credibility findings that he did and in rejecting the appellant's evidence. Ground 1 discloses an error of law sufficient that the decision of the First-tier Tribunal cannot stand.
8. Although it is not necessary for me to go on to consider the remaining grounds, I am satisfied that these would separately have also established errors of law in terms of grounds 2 and 3 and the failure to take into account the material evidence identified.
9. In relation to the final ground in relation to Article 8, as I pointed out to Ms Blair Article 8 was not pleaded in the appellant's grounds of appeal to the First-tier Tribunal. Even if it had been I am not satisfied that there was any error in the judge considering Article 8 where the appellant had not specifically withdrawn the ground of appeal. Indeed he would have fallen into error had he not. Ms Blair's practice before the First-tier Tribunal, of maintaining an Article 8 appeal, whilst indicating that no submissions would be made and then criticising the judge for making findings on that appeal is, at the very least, unsatisfactory. It was Ms Blair's submission that if the representatives had been aware that the judge intended to deal with Article 8 she would have provided further evidence in this regard. Whilst I am not satisfied that there is any error in the judge considering Article 8 where an Article 8 ground remains (which does not appear to have been the case in this appeal) the judge may also have fallen into error in making findings not based on any evidence that was before him, including in relation to the ability of the appellant and her partner to reasonably be expected to continue family life in Congo-Brazzaville, particularly as the appellant's partner was not a national of Congo-Brazzaville and was not married to the appellant and there was no reason to believe he would be entitled to live there.
10. In any event, as ground 1 succeeds such is immaterial.
Conclusion
11. The decision of the First-tier Tribunal discloses an error of law such that the decision cannot stand and is set aside in its entirety. No findings are preserved. The appeal is remitted to the First-tier Tribunal to any judge other than Judge Abebrese.

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 her or any member of her 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

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

As no fee is payable I make no fee award.

Signed Date

Deputy Upper Tribunal Judge Hutchinson