Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12470/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 December 2016
On 14 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

THEEPAN [K]
(anonymity direction not made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr C Mannan, Counsel, instructed by Linga & Co
For the Respondent: Miss A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from a decision of First-tier Tribunal Judge Lambert, promulgated on 11 August 2016. The appellant is a Sri Lankan citizen born on 28 October 1985 who was advancing claims for asylum and humanitarian protection. Those claims were rejected by the Secretary of State and the appeal to the appeal to the First-tier Tribunal was dismissed.

2. The First-tier Tribunal decision is careful and detailed decision. It deals at some length with the evidence given by the appellant and finds it to be internally inconsistent and therefore incredible. The judge rejected the claim because he could not accept the evidence of the appellant in relation to the history of the matter in Sri Lanka and subsequent incidents in the United Kingdom.

3. The original grounds of appeal were fairly extensive and the grant of permission was on all six grounds advanced.

4. Mr Mannan who acts for the appellant has wisely limited his submissions to three substantive points. The first dealt with the issue of sur place activities and he contended that the judge did not deal with this adequately. There is nothing in this ground. The judge made reference to various activities which the appellant claimed he had been involved in. Mr Mannan has conceded that there was no independent documentary or other evidence in relation to sur place activities and therefore it was solely the testimony of the appellant which the judge had to consider.

5. The judge made findings that the case advanced by the appellant did not sit happily with the medical evidence as recorded in the psychiatric report of Dr Gupta and having found the appellant incredible in relation to a substantial part of his evidence the judge was perfectly entitled to find that the appellant could not be believed in relation to sur place activities. This criticism is wholly without foundation.

6. The second and the third grounds advanced by Mr Mannan both relate to the medical evidence. First, that of Dr Martin who gave evidence in relation to scarring and, secondly, Dr Gupta a psychiatrist.

7. The judge in paragraph 9.4 gave more than adequate reasoning as to the difficulties he had with Dr Gupta's evidence. The appellant was a poor historian. Since the psychiatric evidence was for the most part a recitation of matters related by the appellant, the judge was entitles to remark upon a range of inconsistencies with the evidence of the appellant. I can see nothing wrong in the approach of the judge.

8. In relation to Dr Martin the judge is critical of him for not engaging with the recommendations outlined in KV (Scarring medical evidence) Sri Lanka [2014] UKUT 00230. Dr Martin makes reference to that authority and deals with it sufficiently.

9. The judge's conclusion at the end of paragraph 9.7 reads: "I do not find therefore that is report takes matters much further with regard to the issue of SIPB." I have been taken to Dr Martin's report and in particular the summary and conclusions. The judge set out paragraph 6.3 of Dr Martin's report.
"I consider the possibility that the injuries were caused by self infliction by proxy and although it is impossible to fully discard this possibility, I did not find any evidence to support it and it remained in my opinion just a remote possibility."

10. The judge, however, did not make reference to the following paragraph, namely 6.4 which said that the appellant's
"overall pattern of scarring is not suggestive of a self-inflicted explanation for all the scars".

11. With the greatest of respect to this experienced First-tier Tribunal Judge, it is quite wrong to say "I do not find therefore that his report takes matters much further with regard to the issue of SIPB" when one of the expert's conclusions is a professional reasoned assessment that the overall pattern of scarring "is not suggestive of a self-inflicted explanation."

12. It is incumbent upon any judge when rejecting the evidence of an expert to give full and sufficient reasons for so doing. Regrettably that was not the case here.

13. Miss Brocklesby-Weller, for the Respondent, accepted that this could have been dealt with rather better and sought to persuade me that looking at the decision on the holistically it is clear that even had the judge expressed himself more appropriately in relation to the rejection of the expert's finding the same conclusion would have resulted.

14. I strongly suspect that Miss Brocklesby-Weller is right. The evidence here was very powerful and she took me to it in some detail; but ultimately there is clear an error of law on the face of the decision, and I cannot be certain of the extent to which that error may have infected other parts of the judgment. Notwithstanding Miss Brocklesby-Weller's able submissions, and not without some hesitation, I set aside the decision. Because the issue of credibility is at large, this is not the type of decision where factual findings can be preserved. It will be necessary for a different First-tier Tribunal Judge to approach the matter de novo albeit there is a strong possibility that a remade decision may ultimately reach exactly the same conclusion.

Notice of Decision

(1) Decision of First tier-tribunal set aside.
(2) Matter remitted to be heard afresh by a judge of the First-tier Tribunal other than Judge Lambert.
(3) No anonymity direction is made.

Signed Mark Hill Date 13 December 2016

Deputy Upper Tribunal Judge Hill QC