Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12621/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 27 July 2016
On 17 August 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

P M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his 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.

Representation:
For the Appellant: Prof. W.M. Rees, Counsel instructed by David Benson Solicitors
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed against the respondent's decision to refuse a protection claim. First-tier Tribunal Judge Moxon ("the judge") dismissed the appeal in a decision promulgated on 10 May 2016.

2. The appellant appeals against the First-tier Tribunal decision on the following grounds:

(i) The judge's decision to refuse to adjourn the hearing on the ground that the appellant's wife had only just disclosed the possibility of sexual abuse was procedurally unfair. The judge failed to take into account the guidance on vulnerable witnesses.

(ii) The judge failed to engage adequately with the evidence given by the appellant in relation to his wife's mental illness.

Decision and reasons

3. After having considered the grounds of appeal and oral arguments I satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

4. The appellant entered the UK on 21 February 2011 with entry clearance as a Tier 4 student dependent. He was granted an extension of leave on the same basis. On 24 February 2015 the appellant's wife was served with a notice of liability to removal as a person who had obtained leave to remain by deception following allegations that she submitted false documents in an earlier application. It is not clear from the Home Office chronology whether leave to remain was curtailed.

5. On 13 March 2015 the appellant applied for asylum because of problems with a man who harassed his wife and her family. The application was refused in a decision dated 18 September 2015. The appellant appealed against the respondent's decision to refuse his protection claim in a notice of appeal dated 5 October 2015, which was lodged by his then legal representatives, HK Solicitors.

6. The appellant's new representatives, David Benson Solicitors, informed the Tribunal that they were acting on his behalf in a letter dated 11 April 2016. The accompanying letter of authority was signed on 04 April 2016. In the same letter they returned the Reply Notice in response to a pre-hearing review that was due to take place on 15 April 2016. The notice stated the appellant's intention to produce "medical evidence and psychiatric report" in support of the appeal. When asked if there was any further information he wished to provide in regarding the appeal the form stated: "my wife's asylum claim and psychiatric report".

7. His representatives made a written adjournment request on 15 April 2016 in the following terms:

"First, we wrote to the respondent on 22 March 2016 informing you of the fact that it had transpired during our preparation for this case that the second appellant (wife of the first appellant) has suffered gender-based persecution that has not been disclosed to her husband. The facts of her claim are therefore highly complex and require strict confidentiality and sensitivity. Accordingly, the second appellant sought to make her own application for asylum so that information provided by her or on her behalf could be considered in the absence of her husband and members of the public. We are yet to receive a response to that letter.

Second, the second appellant requires a psychiatric assessment. We are in the process of making an appointment with a suitable psychiatrist. For this reason we require more time to the assessment take place and for a report to be served."

8. The written adjournment application was refused by the Tribunal on 19 April 2016 on the ground that it had no power to direct the respondent to decide an asylum application. The adjournment sought was open ended. The second appellant could give evidence separately "to avoid embarrassment". No consideration appears to have been given to the second reason for requesting an adjournment, which was the request for a three-week delay in order to obtain a psychiatric report.

9. On 26 April 2016 the appellant's representatives faxed the court to inform that they were still waiting for the psychiatric report and would serve the appellant's bundle on receipt. The bundle was served by fax the day before the hearing. It included a psychiatric report prepared by Dr Raj Persaud as well a brief statements from the appellant and his wife dated 22 April 2016. The statement from the appellant's wife was fairly anodyne and did not contain any specific allegations of sexual abuse. Professor Rees told me that his instructions were that the statement was taken while her husband was in the room so she was reluctant to disclose any details of sexual abuse.

10. The grounds of appeal to the Upper Tribunal asserted that during a conference with female counsel prior to the hearing (no date is given) the appellant's wife appeared to be distressed and emotional and was found crying in the corridor. When counsel sought to offer her reassurance she disclosed that she had been subjected to sexual abuse and harassment but it was difficult to obtain any further information because of her emotional state and her plea that her husband should not be informed. The evidence should have been set out in a brief statement from the counsel concerned but it seems that it may have been the event that prompted the adjournment request made on 15 April 2016.

11. Given the pressing need to prepare a report within a short timescale Dr Persaud was only able to make a fairly preliminary assessment of her mental state. He made the following observation in his report:

"My clinical intuition tells me that she has suffered sexual assault on more than one occasion but has not been able to seek proper help because doing so would disclose this - in her mind - to her partner - so she is trapped in being very unwell but unable to get help. This sense of being trapped also contributes to her psychiatric problems. In this context, one has to consider the cultural context within which the sexual assault and harassment occurred. There is a stigma associated with being a victim of sexual assault and this explains why the client has been unable to inform her husband. This also explains her reluctance to inform medical practitioners and to seek the support she requires. I believe that the client's avoidance and reluctance to visit the memories of her past is highly consistent with symptoms of PTSD.

12. At the hearing on 29 April 2016 counsel applied for an adjournment on the ground that further time was needed to take a full witness statement from the appellant's wife, and that it was necessary to obtain expert evidence to address the particular circumstances of this case, which were not covered in the publicly available material.

13. The judge refused the adjournment application on the ground that there was a "plethora of country guidance available about Sri Lanka". In relation to the statement from the appellant's wife he noted that a statement should have been prepared before the hearing, and if she did not wish to make disclosures to a male solicitor, this was insufficient explanation as to why she couldn't have asked to speak to a female "some time ago". The judge gave counsel additional time to draft a statement at court before the hearing started.

14. Having set out the background to the relevant issues regarding the adjournment request it should become clear why I consider that refusal of an adjournment in the circumstances outlined above did not comply with the overriding objective and the need for procedural fairness.

15. There is evidence to show that the appellant's representatives were instructed only a few weeks before the hearing. From what I have been told it seems that the appellant's representatives did not assist the situation by seeking to take such a brief statement from the appellant in the presence of her husband. Anyone working in this field will be familiar with the fact that late disclosure of sexual abuse is common and that it may take some time, skill and sensitivity on the part of the person taking a statement to elicit the full nature of a person's past history of abuse. Other relatives should be absent from the room precisely because it might inhibit disclosure.

16. The appellant's wife was able to begin this process when she spoke to counsel and to Dr Persaud. There was evidence before the First-tier Tribunal to support the possibility that her mental health problems may have arisen from such abuse. However, it seems clear that the circumstances in which counsel was expected to elicit further information, outside a courtroom on the day of a hearing, when she was also extremely worried about her husband finding out about the abuse, was insensitive and inappropriate. Counsel was unable to take a detailed statement providing information about each incident of abuse, which if done properly, may take several hours, and possibly more than one meeting, to elicit. Even if the judge had doubts about the credibility of the claim he should have proceeded on a precautionary basis given the need for anxious scrutiny of asylum claims.

17. The judge made no special arrangements to respect the wife's desire to prevent disclosure to her husband [5]. I am told that the appellant is now aware of the general nature of his wife's evidence, no doubt because the judge chose to include it in his decision without consideration of whether special measures might be possible.

18. It is not necessary for me to deal with the second ground of appeal because it is sufficient for me to find that, in the circumstances of this case, fairness required an adjournment in order to provide time for the appellant's wife to give a more detailed statement in an environment that was appropriate to disclosure of possible sexual abuse, especially in view of the fact that Dr Persaud had assessed her to be too unwell to give evidence in a court environment. To refuse to adjourn in such circumstances was procedurally unfair and amounted to an error of law.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law

I set aside the decision and remit the appeal to the First-tier Tribunal for a fresh hearing

Signed Date 16 August 2016

Upper Tribunal Judge Canavan