Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12590/2015

THE IMMIGRATION ACTS

Heard at Field House
Oral Decision & Reasons
On 7 April 2016
Promulgated on 16 June 2016

Before

UPPER TRIBUNAL JUDGE JORDAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and
[M K]
(ANONYMITY DIRECTION NOT MADE)

Respondent

Representation:

For the Appellant: Mr J. Parkinson, Home Office Presenting Officer
For the Respondent: Mr H. Ti, Solicitor, Kesar & Co Solicitors

DECISION AND REASONS

1. The Secretary of State appeals against the determination of First-tier Tribunal Judge Bartlett promulgated on 25 January 2016 in which she allowed the appeal of [MK] against the decision of the Secretary of State made on 23 September 2015 refusing her claim for asylum. [MK] had appealed under s.82 of the Nationality, Immigration and Asylum Act 2002. It was this appeal that was allowed by Judge Bartlett in her determination. However the background of this case is that there had been a previous hearing which had been conducted in Glasgow before Immigration Judge Robb on 16 June 2008 in which the judge had dismissed [MK]'s appeal. For the sake of continuity I shall refer to [MK] as the appellant as she was in the First-tier Tribunal.
2. The circumstances in which Judge Robb came to dismiss the appeal are clearly set out in the determination. It appears that there were three significant credibility findings made as to the appellant's claim. The first related to the degree of knowledge displayed by the appellant about the policies in the DRC that the MLC adopted and from that stemmed an issue as to whether the appellant had the relationship that she claimed with one of the leading politicians in that organisation.
3. The basis upon which the adverse credibility finding was made was that the judge did not consider the appellant had an adequate level of knowledge about the MLC's ideologies. In particular it was said that the appellant did not know the contents of some of the specific policies adopted by the MLC.
4. The second and most significant challenge was a challenge to the appellant's claim that she had been raped and tortured. It is this element which is the focus of the reconsideration, if I may call it that, that was conducted by Judge Bartlett in the subsequent appeal.
5. The evidence that the appellant had provided was that she claimed to have been repeatedly raped over a period of seven days and that during the rapes her genitals had been cut under torture; that she did not receive any medical attention; that the bleeding had stopped but she was in bad shape when she left and she did not subsequently go to hospital.
6. Judge Robb noted in paragraph 22 of the determination that no medical evidence to support her experiences was produced. Notwithstanding the fact that there was, according to the appellant, physical evidence of the injuries of which she complained, the Secretary of State submitted that the lack of medical evidence was damaging to the credibility of the allegation of rape and torture. This was, in essence, the approach that was adopted by the judge. He noted in paragraph 27 that there was the availability of evidence and that the absence of medical evidence was a relevant consideration.
7. In paragraph 28 Judge Robb said:
"Medical evidence of rape is a relevant consideration. Its usefulness varies from case to case. In this appeal the appellant claims to have been repeatedly raped in March 2007 some fifteen months ago. Although not medically qualified I have to wonder what forensic evidence of rape might be identifiable after that period of time as rapes do not necessarily cause significant injuries. However she did say that she had been treated with antibiotics for injuries resulting from her rape. This suggests there was some lasting problem which could be addressed in a medical report. I cannot judge what assistance such evidence would have been to the court but the failure to produce something when the appellant says she has been medically treated leaves unanswered the valid question as to why no medical evidence is before the court. I am entitled to take this absence of medical evidence into account in assessing her credibility.
Separately the appellant claims to have had her clitoris cut. This suggests physical damage. It is reasonable to expect that forensic evidence of this damage could be reported on by a doctor failing which following examination of a doctor might have reported and explained why no useful evidence did exist.
I find that the absence of any independent medical evidence about damage to her clitoris is relevant and something which I may properly consider in assessing the credibility of the appellant in the round."
In due course the judge came to the conclusion that he rejected her case of rape in the way that she had claimed.
8. In paragraph 44 the judge concluded:
"The combination of the faults in her evidence about the MLC and her involvement with Mr Bemba's household taken together with the lack of supporting evidence about her injuries and damage lead me to find, notwithstanding the low standard of proof required in this jurisdiction and after giving anxious scrutiny to the whole evidence presented for the appellant, that her account of involvement with the MLC, association with Jean Pierre Bembe, detention, imprisonment, rape and torture are false."
9. The appellant did not appeal that determination but in due course another decision was made, the decision which was before Judge Bartlett, and that permitted this issue to be re-examined by the Tribunal. It was re-examined on the strength of medical evidence which the case originally cried out for. In saying what I subsequently say I am in no way criticising the decision of Immigration Judge Robb who, on the material before him, undoubtedly reached the correct decision. There were real issues that could have been determined by medical evidence and the failure to provide such evidence was a material consideration.
10. However by the time the case came to be examined there was a report from Dr Jillian Evenson who examined the appellant on no less than three occasions at the Medical Foundation in London; on one occasion on 10 April 2012, and on two further occasions in May 2012. She wrote her report following those examinations. In addition it appears that she had before her the counselling notes at the Medical Foundation for the period 28 April 2011 to 26 April 2012, counselling which had carried on over a period of about one year. It was not therefore the case of a medical examiner with only a short opportunity to examine. There were three examinations and there were medical counselling notes to boot.
11. The significant evidence, and I am only going to highlight one part of this evidence, is in relation to the examination which she conducted in respect of the appellant's genitals. That is described in paragraph 46 of her report but I need not set out what the examination revealed. I can go straight on to deal with the conclusions which are found at paragraph 67 of the report. This says:
"Examination of [MK]'s perineum revealed an incision through the left labium minus the cut ends of which are well healed and normally pigmented but have retracted leaving a very noticeable gap S12 in the continuity of the lip towards the clitoral end. Anterior to S12 at the tip of the labium lies S11, a sphere of pink granulation tissue formed during healing but which has not progressed further to dense white scar tissue. Perhaps because the cut here was severe and amputated tissue, these lesions are highly consistent with the attribution that they were inflicted by the sharp edges of the end of a rifle as the weapon was viciously thrust in and out of her vagina abrading, cutting and tearing tissue in a random, irregular manner. [MK] inspected her perineum with a mirror some time later and understandably believed her clitoris had been cut in the assault. However it is the left inner labium which has evidently been cut in two places. The wounds had to heal naturally, by secondary intention, which has contributed to the resultant anatomical distortion. The scarring it not characteristic of traditional female genital mutilation, nor injuries suffered in childbirth, nor is it likely that it occurred through accidental or self-inflicted injury, and [MK] has no history of any of these events."
12. On the basis of this material the clear conclusion that was provided by the medical evidence was that the appellant had been the subject of a violent assault using an instrument similar to a rifle which had been viciously thrust in and out of her in a way that could only be consistent with extreme violence. There was no material to suggest that it was caused in any other way and it does not appear to be possible to conclude that it was accidental.
13. That had a number of consequences. First, it provided a reason for departing from the determination of Judge Robb. He had suggested in no uncertain terms that the absence of relevant medical evidence was a significant factor, not simply in his consideration of the allegation that she had been possibly assaulted, but it was also a significant factor in his finding that none of the rest of the applicant's account was credible. Accordingly it was a matter that the second judge, Judge Bartlett, was required to take into account when she heard the appeal on 15 January 2016. Second, the appellant's own prior account of her injuries was consistent with the medical evidence in circumstances where she could not have known her account would be cortically examined by a forensic medical practitioner.
14. The Secretary of State makes three principal points in the grounds of appeal. The first is that the judge misdirected herself in applying Mibanga. It has been described as a reverse Mibanga point. In Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 the credibility of account is considered in the context of medical evidence. The issue sometimes arises as to whether the medical evidence is considered after the conclusion of the findings of fact which are used to discredit the medical evidence (the so-called 'cart before the horse') or whether the medical evidence is considered as part of the findings of fact and which is used to inform those findings of fact. Similarly it is clearly wrong for the judge to rely entirely upon a medical report as proving the credibility of the appellant's account and then not engaging with the adverse credibility points which had previously been raised.
15. The second point that is made is in relation to the decision of the Tribunal in JL (Medical reports, credibility) China [2013] UKUT 00145 (IAC) where it is said that those writing medical reports for use in immigration and asylum appeals should ensure that where possible and before forming their opinions they study any assessments that have already been made of the appellant's credibility by the immigration authorities. But it also goes on to say that they should not conduct a running commentary on the reasoning of the judge undermining the credibility findings that have been made.
16. I note in the context of this case Dr Evenson referred expressly to the material that was before her in page 1 of her report. It is clear that she referred to the determination of the appeal by Judge Robb on 17 June 2008. I am also satisfied that she did not fall into the error of then conducting a blow by blow demolition of the judge's reasoning. She confined herself to her examination and the physical consequences of an event about which she was able to speak.
17. The final point made is in relation to Devaseelan and the extent to which a judge should not depart from previous findings unless there was sufficient evidence to permit such a departure. In this case I am quite satisfied that there was sufficient evidence to satisfy such a departure because the very thing that was crucial in the determination of Judge Robb, namely the failure to produce medical evidence, had been satisfied when the case came before First-tier Tribunal Judge Bartlett.
18. So then it requires me to go on and consider the determination of Judge Bartlett. First of all, it is clear that the judge knew quite well what the determination of Judge Robb had said. It is recited in paragraph 6 of the Judge Bartlett's determination where the credibility findings which I have considered were considered. (There was a third credibility finding in relation to the circumstances in which the appellant claimed she had left the DRC but that was not pursued.) There were therefore two credibility findings which required re-examination, the one in relation to the appellant's MLC activity and the second in relation to the allegation of rape and torture. The judge drew extensively upon the medical report of Dr Evenson, setting out the relevant passages in paragraph 20 of her determination. She then went on to consider Judge Robb's determination itself in paragraph 30 of her determination and then reviewed Dr Evenson's report in paragraph 30 of her determination and then reviewed Dr Evenson's report in paragraph 31, having contrasted what the judge had said in relation to the same events in the determination of 2008.
19. The judge said in paragraph 31:
"Having reviewed Dr Evenson's report and in light of the 2008 determination I find that the appellant has suffered the horrific rape, sexual violence and torture set out therein. I consider that the evidence from Dr Evenson is a good reason for me to make this finding of fact as is the statement in the 2008 determination that 'the absence of medical evidence to support her testimony and the lack of explanation for its absence I do find damaging to the credibility of this claim'. The report from Dr Evenson is detailed. The conclusion was that the appellant's scarring throughout her body is highly consistent with her claims of sexual torture. The psychological findings from the report also support the appellant's account and the physical scarring. I do not accept the respondent's claim that the fact of discrepancies between the information detailed in Dr Evenson's report and the account the appellant gave in the asylum interviews is to undermine her credibility in this regard. It is not reasonable or correct to expect somebody who has suffered deep and sustained trauma to maintain wholly accurate and consistent memories or to recount such consistently. I find her accounts to be broadly consistent and it is this which is important rather than expecting her accounts to be exactly the same."
20. My assessment of this part of the determination of Judge Bartlett is that she was properly taking into account the findings of the 2008 determination. She was revisiting them as a result of the material contained in Dr Evenson's report. She was taking into account the inconsistency allegations which had been raised by the Secretary of State and reached a perfectly sustainable conclusion that the appellant had been violated in the way that she had always claimed. It is of some note that the claim that was advanced by the appellant was a claim that she then had no reason to know would be supported in such detail by the report of Dr Evenson. It would of course have been possible, had she fabricated an account, to find that the fabricated account did not match the medical findings that had been provided by Dr Evenson. That is not the case here and the finding made by the judge that her claim to have been attacked in the way that she had stated, was credible.
21. In paragraph 35 the judge also went on to consider the medical notes of the counsellor and concluded that it was not credible that the appellant would maintain a deception with a counsellor whom she had met so many times over an extensive period of time and be able to maintain what was in essence a lie. Accordingly she found in paragraph 36 that the account given by the appellant to Dr Evenson about the circumstances of her detention, how her detention came to pass, was consistent with her scarring and mental health diagnosis and reasonably consistent with the account given in the asylum interviews. The discrepancies did not undermine her overall case.
22. In these circumstances the judge then went on to reach a sustainable conclusion that the account that had been provided by the appellant was sufficient to maintain the asylum claim that she was advancing. It was open to the judge to depart from the earlier finding. This inevitably affected Judge Bartlett's approach to other adverse credibility finding in relation to the appellant's political involvement.
23. This appeal makes a direct challenge to Judge Bartlett's approach to the evidence. The Secretary of State might have accepted that the appellant was detained and raped but have then suggested that the claim failed, notwithstanding this. In asking the Tribunal to reconsider the case it would have been open to the Secretary of State to say, even though the events described occurred, (even though she was arrested, even though she was raped in the way that she claims by soldiers acting on behalf of the authorities), nevertheless this did not itself establish a claim. Yet, it does not seem to have been the way the case was advanced. It is certainly not the way the challenge was made in the grounds of appeal. The respondent might have advanced her case on the basis that, even if the appellant's claim had been accepted and taken at its highest, (even if all of the findings made by Judge Bartlett were true), the asylum nevertheless failed. That is not the way I read either the determination or the grounds of appeal.
24. In such circumstances the issues that were before the judge were resolved in favour of the appellant and I consider they were reached in a way that was without legal error. I dismiss the appeal of the Secretary of State and the determination of Judge Bartlett will stand.
25. I am however satisfied that the judge was entirely wrong in relation to one element of the case. In paragraph 27 of his determination she said,
"I will deal with the point initially which is the claim based on the EEA Regulations. This is clearly untenable. The children who are the EEA nationals relied upon are British citizens and therefore the EEA Regulations are not the correct regime to consider the appellant and the children. The appeal on this ground is dismissed."
26. That was an entirely wrong application of the law. The appellant has two children who are British children. The judge did not make findings in relation to either Article 8 or the claim under the EEA Regulations and in doing so I am satisfied the judge was wrong. Clearly by allowing the case on asylum grounds no significant difference was made but it remains the case that where there are claims under Article 8, those should be resolved by the judge notwithstanding other successful parts of the claim. If an appellant is at risk of persecution or serious harm under Article 3, it is difficult to see that this would not alone amount to a violation of Article 8. There is however, no cross-notice. Nevertheless the consequence of Judge Bartlett's findings of fact must be that the appellant must succeed under Articles 3 and 8.
27. In this case the judge would then have been faced with the removal of two British children. The mother is the primary carer. The derivative rights of residence are now found in Regulation 15A of the 2008 EEA Regulations as inserted by the Immigration (European Economic Area) (Amendment) Regulations 2012.
28. The essential requirements of the Regulations are that a person P who satisfies the criteria in paragraph (2) is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria. The criteria in relation to this appellant are that P is the primary carer of two British children each of whom is also a Union citizen, (the relevant EEA national), and the relevant EEA national is under the age of 18, is not residing in the United Kingdom as a self-sufficient person and would be unable to remain in the United Kingdom if P were required to leave.
29. There are definitions made including a definition of a primary carer (reg. 15A(7)) and described as the person who has primary responsibility for the child's care. As I understand it, the appellant does indeed have primary responsibility for these two very young children who are not mentioned, save in passing, in the determination but who, I was told, were born respectively in 2012 and 2014. The father lives elsewhere and, whilst he has contact with the appellant and their two children, he does not apparently have primary responsibility for them.
30. It appears, therefore, that the appellant is probably entitled to a derivative residence card pursuant to Regulation 15A although surprisingly no such application was made for a residence card. It may also be the case that a residence card only provides more limited rights than those that follow from a finding that the appellant is a refugee. However bearing in mind the age of the children, unless there is a reversal of the care arrangements, if the mother continues to look after the children for the foreseeable future, she is or will become entitled to a series of derivative residence cards. At that stage, it seems unlikely that the mother will not be entitled to a right of settlement. In any event, she will be protected against removal. These circumstances were matters which the judge was required to deal with in the consideration of Article 8.
31. Had this been the only element of an Article 8 claim, my preferred solution would have been that, rather than pursue an Article 8 claim, the better route would be to adjourn the re-making of the Article 8 claim to await the outcome of the application for a derivative residence card and any consequent appeal. It will only then be that the Tribunal can properly determine whether removal would be disproportionate. However, to avoid further ligation, I am not going to adjourn this appeal yet further to enable this aspect of the Article 8 clam to be determined. I will merely say that the determination of the First-tier Tribunal Judge shall stand.
32. It will then be for the appellant to decide whether a derivative residence card should be sought and whether that would strengthen her overall right to remain in the United Kingdom. It would at any rate ensure that such rights as the appellant appears to benefit from should be made the subject of formal recognition in the shape of a derivative right of residence.
DECISION
1. The appeal of the Secretary of State against the decision of the First-tier Tribunal is dismissed.
2. The decision of the First-tier Tribunal allowing [MK]'s appeal shall stand.

ANDREW JORDAN
JUDGE OF THE UPPER TRIBUNAL
19 April 2016