Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA114352014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 May 2016
On 15 June 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

P K
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms S Jegurajah, Counsel, instructed by A & P Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because
2. The appellant in this case is a citizen of Sri Lanka who challenges the decision of the First-tier Tribunal to dismiss her appeal against a decision of the Secretary of State on 1 December 2014 refusing her asylum and refusing her leave to remain.
3. There are features of this case which are regrettably not uncommon in appeals by Tamils from Sri Lanka but nevertheless remained very disturbing. The appellant has clear evidence of scarring on the inside of each of her thighs and on her back and there is clear evidence that she has been psychologically disturbed and in the opinion of the psychiatrist this could be as a result of sexual assault. The First-tier Tribunal has considered the evidence carefully and conscientiously but is criticised in the grounds particularly for making credibility findings in an unlawful way.
4. The First-tier Tribunal Judge directed herself that this was a case where credibility is likely to be crucial and I wholly agree. It is therefore more than ordinarily important that adverse credibility findings if they are made are made for good legal reasons.
5. The gist of the criticism is that the First-tier Tribunal Judge did not look at the evidence holistically but looked at the evidence without reference to the medical reports and then asked if the medical reports should make a difference. Clearly there are directions indicating the contrary. The judge refers to making the decision holistically but paragraph 83 is particularly troublesome. The judge said:
"This was a difficult case, given the extent of the medical evidence and the fact that I had two psychiatrists' reports as well as a report on the physical injuries. I have given these medical reports very careful consideration. However, I formed the very clear view that the appellant's account was implausible and her evidence was not credible for all the reasons set out above and therefore in the light of that clear assessment, I was not prepared to rely on the medical reports as an accurate and definitive assessment of her credibility or of the appellant's account."
6. Mr Avery rightly says the judge was entitled not to rely on the medical reports. It was the judge's job to make her own assessment. However, the assessment had to be made lawfully. The reasons given essentially are reasons based on inconsistency and implausibility. What the judge does not appear to have done and it certainly cannot be seen in her Decision was to look at the medical evidence, particularly the psychiatric evidence, and consider how, if at all, that could have impacted on the appellant's ability to be an accurate historian.
7. Mr Avery has submitted realistically and succinctly that the directions are basically correct and the judge has done the judge's task which is to form her own view on the evidence. I have reflected on that but I cannot be satisfied in this case that the judge has made her credibility findings with proper regard to the medical evidence. Rather, it seems to me that the judge has detached herself from the medical evidence when considering credibility and thought about the medical evidence afterwards to see if it makes any difference. This analysis would explain the wording at paragraph 83.
8. In the circumstances I have to set aside the decision because I am not satisfied it has been done correctly. Rather, I have decided that it has not been done correctly. As credibility goes to the very root of the case and there has not been a proper hearing on that point the case must go back to the First-tier Tribunal to be redecided. That is my decision.

Notice of Decision
The Appellant's appeal is allowed. The decision of the First-tier Tribunal is set aside. The appeal must be decided again in the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 15 June 2016