Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10265/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 8 December 2016
On 13 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

OO
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R O'Ryan, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing her appeal against the respondent's decision of 3 July 2015 refusing her claim for asylum, the respondent also finding that there was no other basis on which she should be granted leave to remain.

Background

2. The appellant is a citizen of Nigeria born on 4 November 1976. She has made a number of visits to the UK since 2005. Her most recent visa was issued on 26 September 2012 valid until 26 September 2014 and she travelled to the UK on 3 October 2012 for medical treatment returning at the end of February 2013. She last entered the UK on 8 April 2013 and claimed asylum on 25 June 2013. She claimed to be at risk in Nigeria because of her sexual identity as a bisexual. However, save for accepting that bisexuals constituted a particular social group in Nigeria, the respondent did not believe the appellant's claim which was to all intents and purposes rejected in its entirety.

3. At the hearing of her appeal before the First-tier Tribunal the appellant and her partner gave oral evidence and there was a substantial bundle of documentary evidence indexed and paginated 1-416. In her witness statement the appellant said that she wished to clarify that she was not a bisexual but a lesbian and accepted that confusion had arisen accordingly. The documentary evidence included a medical report prepared by Dr Goldwyn of the Helen Bamber Foundation dated 11 February 2015. Its main purpose was to provide an opinion about the scarring the appellant has on various parts of her body.

4. It was the appellant's case that her husband had discovered her in bed with another woman when he returned home unexpectedly on 18 November 2011 and this provoked a violent reaction. He was carrying a medium sized kitchen knife and tried to stab her but she twisted away and the knife cut her badly just above the left knee. He then got a hot metal rod which his brother had been heating up on an electric hob and attempted to burn her. She managed to twist away and was burnt on the inside of her right thigh and her left buttock. She was then able to run out of the house but was hit by a truck and was knocked out, regaining consciousness in hospital. The medical report describes the various scars and sets out Dr Goldwyn's opinion on the consistency of the injuries with the appellant's account in accordance with the criteria set out in the Istanbul Protocol.

5. Having reviewed the evidence, the judge did not find the appellant to be a credible witness. He found that, when the available evidence relating to the core of the claim was considered in the round, it was reasonable to conclude that the appellant's claimed sexual identity was devoid of credibility [49]. The appellant and her partner could not be relied upon to provide an honest account of the appellant's circumstances. He then went on to consider the medical evidence in the light of the fact the appellant did have scars on her body. The judge commented on the fact that the medical report concluded that the appellant had demonstrated meaningful suicidal ideation but said that this conclusion was not based on any discernible evidence or statement made by the appellant and amounted to no more than speculation on the part of the author and this unfounded conclusion caused him to doubt her objectivity.

6. The judge said that, despite the extremity of the appellant's injuries prior to the alleged road traffic accident, the doctor had not engaged in any meaningful consideration of the appellant's ability to escape as claimed and that, whilst she concluded the appellant's scar on her right thigh was consistent with a road traffic injury, she expressed surprise at the extent of the scarring which was most likely the result of severe trauma rather than the likelihood of her being dragged under a truck. The judge then commented that it was reasonable to expect that other lasting skin traumas would result from being struck by a moving truck whether on tarmac, gravel or other road surface, but the report was silent on that matter. For these reasons, it was his view that the expert report was of limited probative value. Whilst the appellant had sustained scars, the judge did not accept her account of how they came into existence.

The Grounds and Submissions.

7. The grounds raise three grounds of appeal. Firstly, it is argued that the judge failed to take all relevant evidence into account when assessing credibility and erred in law by forming a concluded view of the appellant's credibility before taking into account the relevant medical evidence. The grounds refer to the Court of Appeal judgment in Mibanga [2005] EWCA Civ 367 and the AIT decision in HH (medical evidence; effect of Mibanga) Ethiopia [2005] UKAIT 164. Secondly, it is asserted that inadequate reasons were given for treating the medical report as being of limited probative value and in particular at ground 2.10 it is said that the appellant did not comprehend the judge's reference to the doctor being silent on the issue of whether being struck by a moving truck would result in other lasting skin traumas and did not see the point that the judge was making. Thirdly, it is said that the judge proceeded under a mistake of fact or an incorrect note of the evidence relating to issues arising from discrepancies identified by the judge about the number of occasions she and her partner had been out to clubs and who knew about the relationship.

8. Permission to appeal was refused by the First-tier Tribunal but granted by the Upper Tribunal identifying specifically ground 2.10. Further clarification of whether the application was limited to ground 2 resulted in confirmation that, whilst permission had been granted on that ground, it would be open to the appellant to raise at the hearing issues relating to grounds 1 and 3.

9. At the hearing before me Mr O'Ryan indicated that he wished to rely on all the grounds particularly grounds 1 and 2. Mr Harrison expressed concerns about the way the judge had treated the medical evidence and whether adequate reasons were given for his finding that the expert report was of limited probative value. After hearing further submissions from Mr O'Ryan, and, taking into account my concern about whether the judge had compartmentalised the evidence and reached a decision on credibility without fully considering the medical evidence, Mr Harrison very fairly indicated that he was prepared to concede that there were material errors of law, such that the decision should be set aside.

The Error of law.

10. I agree that this concession is properly made. I am satisfied that the judge did fall into the error identified in Mibanga of resolving the issue of credibility without fully taking into account the medical evidence, which was capable of affecting the appellant's credibility in that the doctor found that the scars attributed by the appellant to an injury caused by her husband with a knife was highly consistent with that account and that the injuries said to be caused by a burn with a hot metal rod were described as typical of such an injury. In respect of the injuries attributed to the serious road accident, it was the doctor's opinion that they were typical of such severe injuries.

11. Secondly, I am satisfied that the second ground is made out in that inadequate reasons were given for treating the medical report as being of limited probative value. At paras 68-70 of her report the doctor did consider whether the injuries attributed by the appellant to the actions of her husband could have been caused in the traffic accident and I agree with the point made in ground 2.10 that it is not clear what the judge meant by saying that the report was silent on the issue of whether it was reasonable to expect that other lasting skin traumas would have resulted from being struck by the truck.

12. Both Mr O'Ryan and Mr Harrison agreed that, in the event of an error of law being found and the decision being set aside, that the proper course would be for the appeal to be remitted to the First-tier Tribunal for a full rehearing. I agreed with this proposed course. In these circumstances, I need not deal with ground 3.

Decision.

13. In summary, I am satisfied that the judge erred in law, such that the decision should be set aside and that the proper course is for the appeal to be remitted to the First-tier Tribunal for further reconsideration by way of a full rehearing by a different judge. The anonymity order made by the First-tier Tribunal remains in force until further order.

Signed H J E Latter Date: 12 January 2017

Deputy Upper Tribunal Judge Latter