Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12731/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 29 November 2016
On 29 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

MB
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Burrett of Counsel
For the Respondent: Mr Staunton a Home Office Presenting Officer

DECISION AND REASONS

Background

1. The Respondent refused the Appellant's application for asylum or ancillary protection on 25 September 2015. Her appeal against this was dismissed by First-tier Tribunal Judge Hamilton ("the Judge") following a hearing on 29 April 2016.

2. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so given the Appellant's learning disability, and as she has had a child as a result of being raped whilst a child.

The grant of permission

3. Upper Tribunal Judge Jordan granted permission to appeal (25 October 2016) stating it is arguable that, given the issues referred above ([2] final sentence);
(1) there was inadequate consideration to the assertion that she had no family in the Democratic Republic of Congo (DRC), but even if she had family there, the support may be inadequate, and
(2) her learning disability has been wrongly identified as a learning difficulty.

Respondent's position

4. The Respondent asserted in her reply (17 November 2016) that the Judge directed himself appropriately. He properly considered the background material and adequately considered whether she could return to the DRC. It was submitted orally that he plainly had her disability at the front of his mind.

Appellant's position

5. The use of "difficulty" as opposed to "disability" indicates that the Judge did not appreciate the extent of the disability or vulnerability. It indicates he gave inadequate care to the facts. She should have been assessed as being a truthful witness and given the benefit of the doubt.

Discussion

6. I am not satisfied that there was a material error of law in any respect for the following reasons.

7. The Judge considered the Appellant's claim to have lost contact with her family in extensive detail. He noted she was a vulnerable witness and identified the Joint Presidential Guidance Note Number 2 2010 [58-60], explained how he ensured she was able to understand, follow, and participate fairly in the proceedings [38, 61], considered how the impact of her special needs may have confused her or affected her memory [83, 88], and took all that into account when considering the evidence given about having lost contact with her family [80-87, 89]. The Judge noted the psychological evidence identified [34 (4)] that she had a learning disability, noted that the Respondent accepted she had learning difficulties [57], reminded himself that she had special needs [83, 87], and noted that the psychologist does not suggest that her learning difficulty affected her memory [88].

8. I am satisfied that the identified special need incorporates the diagnosis of learning disability and that when referring initially to learning difficulty, he was merely reporting what the Respondent conceded. When referring later to the memory issues, he did so in the context of the psychologist's view that she had a learning difficulty. It has not been established how changing the phrase there from learning difficulty to learning disability could have materially affected his assessment of that evidence. In those circumstances I am not satisfied that the Judge materially erred and he was entitled to make the adverse credibility findings he did having fully taken into account all her personal circumstances.

Decision:

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Signed:
Deputy Upper Tribunal Judge Saffer
29 November 2016