Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/16777/2010

THE IMMIGRATION ACTS

Heard at Field House
Date Sent Out
On 31st August 2011
On 14th September 2011

...........................................

Before

deputy UPPER TRIBUNAL Judge Frances

Between

VASANTHAROOBAN KANTHASAMY
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr N Paramjothy (Counsel)
For the Respondent: Mr J Parkinson (Home Office Presenting Officer)

DETERMINATION AND REASONS

The Appellant
1. The Appellant is a citizen of Sri Lanka born on 20th December 1980. He appeals against the determination of the First-tier Tribunal dated 4th February 2011 dismissing his appeal against the Respondent’s refusal to grant asylum under paragraph 336 of the Immigration Rules and the decision dated 26th November 2010 to remove him as an illegal entrant by way of directions under paragraphs 8 to 10 of schedule 2 to the Immigration Act 1971.

2. The Appellant first left Sri Lanka on 28th June 2000. He spent a year and a half in Kyrgyzstan and then went to Germany where he claimed asylum. His claim was refused in 2002 and he went to Belgium where his asylum claim was also refused. In December 2003 he travelled back to Sri Lanka. The Appellant left Sri Lanka on 27th September 2008 by air and arrived in the UK the same day. He was arrested on 30th October 2008 and claimed asylum on 2nd November 2010 at the Asylum Screening Unit in Croydon.

Permission to appeal

3. Permission was granted on 19th May 2011 by SIJ King for the following reasons:
“The appellant is a citizen of Sri Lanka seeking to claim asylum or other protection in the UK.
The appellant claimed to have worked with the LTTE on a number of occasions and to have been arrested by the army briefly, on certain other occasions. On the last occasion he was arrested on 5 September 2008 and released on 15 September 2008, on payment of a bribe.
One feature at hearing was a request by the appellant for an adjournment in order to obtain legal representation. The Judge concluded that there had been ample opportunity for him to have done so for the reasons set out at paragraph 24 of the determination. Thereafter, the appellant refused to answer questions from the Home Office Presenting Officer.
It is clear that the Immigration Judge, in assessing risk on return, had regard also to the current country guidance.
The grounds of appeal contend that the appellant was not treated fairly in not being allowed to have a legal representative. It was also his contention that he was mentally ill and that his reason for refusing to answer questions was on that account. In support of that contention is a psychiatric report dated 17 March 2011, based on an assessment of the appellant since February 2011. The report focuses upon the evidence of the appellant, while in some detail making reference to scarring. According to the author of the report, the appellant was in a state of extreme distress due to his torture and trauma. Significantly that account of torture and trauma does not seem to be so obvious in the original account of the appellant.
The report concludes that the appellant is suffering from complex post-traumatic stress disorder. In the light of that report the matter merits further consideration.”

Immigration Judge’s Findings

4. The Immigration Judge made the following findings at paragraphs 24 to 28 of her determination:
“24. [The Appellant] stated that he did not wish to continue without solicitors being present and to represent him. I pointed out that his solicitors had withdrawn on the basis that they had ‘not been placed with the relevant funds to proceed with the matter’. A letter dated 12th of January 2011 had been forwarded to the court on that basis. The Appellant stated that he had a friend who would give him funding next month when he was paid. I stated that he had already had a month to sort out payment to solicitors and he had not done so and I refused an adjournment. I found that the matter could be justly determined on the day. The Appellant had already instructed solicitors whom he had not placed in funds. Krish solicitors were present at his asylum interview on 18th of November 2010 and must have advised the Appellant of relevant payments. He had thus had nearly two months to sort out his finances to instruct solicitors. No friend attended court and there was no statement to the effect that he would receive funding from someone’s next wage payment. I therefore refused the application for an adjournment. In his screening interview the Appellant stated that he had instructed a solicitor ‘three months ago and the card [ARC] was obtained’. The Appellant has had access to a solicitor over a period of months and had notice on 13th December 2010 of the hearing date on 13th January 2011. I consider he had ample time to sort out his funding. He was not in detention and was used to dealing with solicitors.

25. The Appellant refused to answer questions from the Home Office Presenting Officer and stated on numerous occasions that he wanted to have a solicitor. I explained to the Appellant that I was proceeding with the case.

26. Miss Angwin relied on the reasons for refusal letter and confirmed that the Appellant was to be returned to Sri Lanka.

27. I do not accept that the Appellant was unable to answer questions for any medical reason. He gave a lengthy asylum interview when a legal representative was present and confirmed that he was fit and well. In his screening interview he confirmed that he was epileptic but was not receiving any specific care. He made no mention of memory or other difficulties in his screening interview. In fact he confirmed he had no disability. I do not accept that the screening interview was not properly understood by him.

28. There were numerous inconsistencies in the Appellant’s evidence. He refused to answer questions from the Respondent during the hearing for the reasons given above.”

The Hearing

5. The Appellant attended the hearing. Submissions were made by both representatives on whether there was an error of law, a record of which appears on the court file. After hearing submissions I reserved my determination.

6. Mr Paramjothy adopted the grounds of appeal and submitted that it was unfair not to grant an adjournment. Permission was granted on the basis of medical evidence and rightly so in the circumstances.

7. Mr Parkinson submitted that paragraph 3 of the grounds of appeal was not made out. It was not evident that the Appellant’s evidence was confused because the Appellant had not given any evidence at the hearing. The Appellant had given inconsistent evidence in interview and refused to answer questions at the hearing because he was unrepresented, not because of his ill health.

8. There was no evidence in the screening interview or substantive interview that the Appellant had sought or required any specific medical treatment in the UK. There was nothing in the screening interview to suggest that the Appellant had any difficulties or had been confused or failed to give cogent answers. There was no evidence in the substantive interview of any medical condition save that the Appellant occasionally suffered from dizziness, headaches and fits. The Appellant had received no medication in the UK for epilepsy but did receive medication in Sri Lanka.

9. There was no evidence in either interview that the Appellant was suffering from post-dramatic stress disorder as he claimed in his interview with the psychiatrist. The Appellant gave short and long answers in interview in response to the questions asked. There were numerous breaks after which the Appellant confirmed that he was fit and well to continue on each occasion. The substantive interview started at 10:10am and concluded at 3:20pm. There was no indication that the Appellant had any problems with the questions asked. The Appellant confirmed that he was fit and well and had understood all the questions at the end of the interview. There was nothing to indicate that the Appellant was suffering from severe mental illness or unable to give answers to questions.

10. The Appellant had refused to answer questions at the hearing in a fit of pique because he was denied an adjournment. The Appellant had the opportunity to answer the questions raised in the refusal letter and refused to do to so. The value of a psychiatric report when the Appellant’s account was dismissed for lack of credibility was significantly limited. There was no evidence that the Appellant was confused or incoherent in any of his interviews.

11. Mr Parkinson submitted that the Immigration Judge cannot have made an error of law in failing to have regard to a matter which was never relied on by the Appellant – the medical report was produced three months after the hearing. The Immigration Judge was entitled to proceed on the day and if the Appellant chose not to be cross-examined and deal with the issues in reasons for refusal letter, that was his decision. There was no material error of fact or law.

12. Mr Paramjothy submitted that it was not surprising that the Appellant did not say he was unwell in interview. The Appellant was unwell at his asylum interview. He had not engaged with a GP nor had Dr Chandran provided a diagnosis. The Appellant’s interview record was littered with confusion at questions: 49, 50, 77, 83, 114, 118 and 155. There was evidence before the Immigration Judge that the Appellant was confused.

13. It was open to the psychiatrist to find that the Appellant was medically unfit to give evidence. It was arguable a court would reach a different decision and there was evidence of confusion in interview; there was particular reference to it at the end of the interview. This case was not suitable for a fresh claim. The Appellant was advised by solicitors but no one from the solicitors attended the interview.

Error of Law

14. I find that the Immigration Judge was entitled to refuse an adjournment for the reasons she gives at paragraph 24 of her determination. Although solicitors were not in fact present at the substantive interview, the Appellant had instructed solicitors prior to the interview and they were on record as his representatives. The Immigration Judge gave reasons for refusing the adjournment and these findings were open to her on the evidence before her.

15. There was no medical evidence before the Immigration Judge at the hearing on 13th January 2011. There was no mention of mental illness during the screening interview or substantive interview. The Appellant confirmed that he was fit and well at the start of the interview, after each break in interview and at the end of the interview. The Appellant was represented by solicitors up until the hearing and no mental health issues were raised by them in the grounds of appeal to the First-tier Tribunal. The first mention of any mental health issues was after the First-tier Tribunal dismissed the appeal. The psychiatric report was dated 17th March 2011 and submitted with the grounds of appeal to Upper Tribunal dated 5th May 2011. The Immigration Judge was entitled to find at paragraph 27 that there was no medical reason why the Appellant was unable to answer questions on the evidence which was before her.

16. I find that the Immigration Judge was entitled to conclude that the Appellant was not credible given the inconsistencies in interview and his immigration history. The Immigration Judge correctly applied the country guidance to the Appellant’s case. She has given reasons for her conclusions which were supported by the evidence before her.

17. I find that the Immigration Judge cannot be criticised the failing to take into account evidence which was not before her at the hearing. I find that there was no material error of law in the Immigration Judges determination dated 4th February 2011.

Conclusion

18. I find that the Immigration Judge was entitled to refuse the adjournment and come to the conclusions she did on the evidence before her. There was no material error of law. I dismiss the appeal.

Decision

Appeal dismissed

Immigration Judge Frances
Deputy Judge of the Upper Tribunal
8th September 2011