Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13084/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 8th March 2017
On 29th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Ms ANGELINA FILAJ
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss N Wilkins, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Albania born on 9th May 1988. The Appellant claims to have left Albania on 5th October 2013 and flown to Italy arriving on the same day using her own Albanian passport. She left Italy on 7th December 2013 travelling to the UK by lorry and arriving on 10th December 2013. On 29th April 2014 the Appellant claimed asylum. I note that on 29th October the Appellant gave birth to a daughter Fiona. The Appellant’s daughter is her dependant.
2. The Appellant’s claim for asylum was based on a claim that she had a well-founded fear of persecution in Albania on the basis of her membership of a particular social group, namely the former victim of modern slavery for the purpose of sexual exploitation. The Appellant’s application was refused by Notice of Refusal dated 26th October 2015.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Herwald sitting at Manchester on 4th August 2016. In a decision and reasons promulgated on 10th August 2016 the Appellant’s appeal was dismissed on all grounds.
4. On 26th October 2016 Grounds of Appeal were lodged to the Upper Tribunal. Those grounds contended firstly that the judge had failed to take into account relevant evidence, in particular the letter from the Appellant’s specialist counsellor and the judge had decided at paragraph 15(a) not to place any weight on the evidence of Ms Trish Doocey with regard to the Appellant’s mental health. Secondly, the Grounds of Appeal contend that the judge had made findings without adequate evidence or reason, in particular his findings at paragraph 15(h), (i) and (l).
5. On 8th September 2016 First-tier Tribunal Judge Kimnell refused permission to appeal. On 26th August 2016 renewed Grounds of Appeal were lodged to the Upper Tribunal. These grounds appear to mirror the original grounds. It was submitted in the renewal letter that the grounds had not been engaged with by the judge refusing permission.
6. On 11th October 2016 Upper Tribunal Judge O’Connor granted permission to appeal. Judge O’Connor noted that the grounds asserted that the First-tier Tribunal had erred in attaching no weight to the report of Ms Doocey. He noted however that this did not appear to be the case. In paragraph 15(a) he noted that it appeared that the First-tier Tribunal Judge had concluded that the Appellant did have mental health problems but not of a severity that would cause her concern upon return. If that was the case then it was arguable, he considered, that the First-tier Tribunal had failed to factor in the existence of those mental health problems in its assessment of credibility and if that were the case that might constitute an arguable error. However, he went on to comment that if he is wrong and the grounds are correct and the First-tier Tribunal attached no weight to the report and thereafter proceeded on the basis that the Appellant did not have mental health problems, this finding would also be infected by arguable error for the reasons identified on the grounds. On either reading of paragraph 15(a) there was, he considered, at least an arguable error in the First-tier Tribunal’s decision making process which requires further consideration by the Upper Tribunal.
7. On 20th October 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. In the Rule 24 response (and this forms part of Mr Harrison’s submission) it is submitted that it is clear from the findings at paragraph 15(a) that the judge was not satisfied that Ms Doocey is qualified to make any psychiatric diagnosis and that her findings are based on what the Appellant told her through an interpreter which are not consonant with the claim. Further, the Rule 24 reply points out that the Appellant is currently not taking any medication for stress and depression, and that it will be submitted that the judge has made clear findings on the medical report and notes that her daughter is being cared for in an appropriate way. Against that background, it is submitted that the judge has assessed the credibility of the Appellant’s claim finding it wanting.
8. It is on that basis that this matter comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by her instructed Counsel Miss Wilkins. Miss Wilkins is familiar with this matter. She appeared before the First-tier Tribunal and she is the author of the Grounds of Appeal. The Secretary of State appears by her Home Office Presenting Officer Mr Harrison.
Submissions/Discussion
9. Miss Wilkins starts by submitting that the error of law is highlighted by the fact that the judge did not take into account the Appellant’s mental health problems and that the reason given for that was that Ms Doocey is neither a psychologist nor a psychiatrist. She submits that the judge has overlooked that Ms Doocey is an accredited member of the British Association for Counselling and Psychotherapy, and that the judge has failed to take into account that the Appellant has attended weekly counselling sessions with Ms Doocey since October 2015 and consequently is familiar with her as her treating counsellor.
10. Further, she points out that there are two issues as to whether or not the Appellant was trafficked at all and as to whether she can be returned bearing in mind she has an illegitimate child. It is her contention the judge only looks at the Appellant’s mental health with regard to her ability to be returned and not with regard to the way in which the Appellant states she was trafficked. She submits that none of the reasons or findings of the Appellant’s trafficking are based on a finding that the Appellant has mental health problems with regard to being trafficked and that the judge has not taken into account the Appellant’s submission that it was unreasonable to criticise the Appellant for not knowing why she was abandoned in the UK when it could have been because the traffickers feared they were about to be detected, nor did the judge take into account the Appellant’s evidence and submissions that the father of the child clearly had mixed feelings about discovering her past which could easily explain why he would first support her, then abandon her. Finally she submits that the judge has not placed enough weight on Ms Doocey’s report, reaffirms her position that trafficking did happen, and contends that the Appellant’s evidence has not been properly challenged. She asked me to find material errors of law and to remit the matter back to the First-tier Tribunal for rehearing.
11. In response Mr Harrison relies on the Rule 24 response as his starting point. So far as Ms Doocey’s report is concerned, he points out that it is very difficult to call it a report. He points out that it is no more than a one page letter, that it does not follow any expected format that would be appropriate to a report, and that there is no way that a court could construe it as a medical report for the purpose of litigation.
12. He goes on to state that the Appellant’s evidence was considered by Judge Herwald and that he has given clear and cogent reasons regarding the failure of the Appellant to give plausible answers. He submits that the judge was entitled to make the comments that he did and, equally, there was evidence that the Appellant was treated by a GP practice but that there is no evidence of her being referred to either a psychologist or a psychiatrist. He submits that this means that the GP has rejected mental health problems and merely referred the Appellant (which appears to be an admitted fact) for counselling services. He asked me to find that there is no material error of law and to dismiss the appeal.
The Law
13. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
15. The principal thrust of the Grounds of Appeal relate to the amount of weight given to the evidence of Ms Trish Doocey by the judge. The judge has analysed the Appellant’s mental health based on the evidence that was before him at paragraph 15(a) of his decision. It is a thorough analysis. I do not recite verbatim the paragraph but it is clear the judge acknowledges Ms Doocey’s qualification as a specialist counsellor but quite properly refers to the fact that she is neither a medically trained psychologist nor psychiatrist. Judge Herwald has concluded he is not satisfied, having heard the evidence, that the Appellant suffers from mental health difficulties such as envisaged would create problems on return as outlined in the country guidance authority and notes that there is a substantial health programme, including for mental health, available on return to Albania. He has heard the evidence and he has made findings which I am satisfied he was entitled to.
16. Mr Harrison makes very valid points (which are picked up upon by Judge Herwald), firstly that the referral from the Appellant’s GP is not to a psychiatrist or a psychologist but to a counsellor and secondly, that the “report” provided by Ms Doocey is in effect little more than a letter of support and not a professional medical report disclosed for the purpose of litigation. On scrutinising what has taken place I am satisfied the letter from Ms Doocey constituted part of the evidence that was before the First-tier Tribunal and that the judge has given full and proper weight to the evidence that was disclosed to him. Paragraph 15(a) shows a thorough analysis of what was before the judge and he has made findings that he was entitled to. As such, there is no material error of law disclosed in his approach.
17. I remind myself of the basic approach to credibility. The proper approach to credibility requires an assessment of the evidence and of the general claim. In claims such as this that will include firstly the internal consistency of the claim; secondly, the inherent plausibility of the claim and thirdly, the consistency of the claim with external factors of the sort typically found in country guidance. I acknowledge that it is theoretically correct that a claimant need do no more than state his/her claim, but that claim still needs to be examined for consistency and inherent plausibility and in nearly every case external information against which the claim could be checked will be available.
18. The judge’s approach to this case seems to exactly mirror that definition. He has considered thoroughly the background material, including the objective evidence which is set out in detail at paragraph 14. In addition, he has taken careful note of the Appellant’s claim set out at paragraphs 10(a) to (p) and thereinafter gone on to make extensive findings at paragraph 15(a) to (l). He has reached a conclusion based on the evidence before him that he was not persuaded that the Appellant had been trafficked to this country. He has identified where he considers the Appellant’s claim lacks credibility and given reasons. I remind myself that I am not rehearing this matter, I am merely analysing the decision of the First-tier Tribunal Judge to determine whether or not there is any material error of law. Having done that, I am satisfied that there is no material error of law disclosed and that this is a judge who has carried out a very thorough analysis and made reasoned findings in reaching his conclusions. I am satisfied, for all the reasons given above, that there is no lacuna in the judge’s analysis and that he has given full and proper weight to the Appellant’s mental health, considered credibility of her testimony, made findings as to her credibility that he was entitled to, and given full and proper reliance to the objective evidence and country guidance authority that was disclosed to him. In such circumstances, the decision discloses no material error of law and the appeal of the Appellant is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Notice of Decision

The decision of the First-tier Tribunal Judge discloses no material error of law and the appeal of the Appellant is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date 24th March 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 24th March 2017

Deputy Upper Tribunal Judge D N Harris