Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa 10844 2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 15 July 2013
On 16 July 2013

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Before

UPPER TRIBUNAL JUDGE PERKINS

Between

p-b--- N--- s---
It is directed that the appellant is identified only by the above initials
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms N Finch, Counsel, instructed by Legal Justice Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Sierra Leone. She was born in 1987. She appeals the decision of the First-tier Tribunal dismissing her appeal against a decision of the respondent to remove her from the United Kingdom. It is her case that she is a refugee or otherwise entitled to international protection. The First-tier Tribunal dismissed the appeal. The First-tier Tribunal Judge disbelieved the appellant and concluded, consistent with that belief, that she had not established her case.
2. The appeal before me challenges the First-tier Tribunal's approach to the assessment of credibility. The substantive criticism is that the First-tier Tribunal erred by failing to set the credibility findings in the context of scientific evidence background material that is not dependent on the appellant.
3. There was certainly very clear medical evidence from two general medical practitioners and a registered nurse that there are marks on the appellant's body suggesting very strongly that she has been the victim of non-accidental injury. The reports do not purport to go further than that. They are not the reports, for example, of a consultant surgeon but they are entitled to considerable respect.
4. Additionally there is background material relating to custom in Sierra Leone of taking women to secret places to carry out the thoroughly unpleasant and nasty process that we delicately describe as FGM.
5. Neither of these strands of evidence were investigated or considered at all adequately in the First-tier Tribunal's determination. The background material identified in the skeleton argument has not been considered at all and the consideration of the medical evidence is very skimpy.
6. Mr Avery says that it is plain from paragraph 74 of the Determination that the First-tier Tribunal Judge did have regard to the medical evidence but assumed that the injuries that the appellant suffer at least could have been caused at the time when the appellant was the victim of rebel attacks in 1999. With respect to Mr Avery this submission is supported solely by conjecture. It is not clear that the First-tier Tribunal Judge made any such finding. It might have been what was in his mind but it is not what he said.
7. The First-tier Tribunal Judge has given reasons for disbelieving the appellant. He has seized on inconsistencies in the account, particularly in the chronology and the claim by the appellant that she did not know she could claim asylum on arrival in the United Kingdom, which claim he found to be wholly unbelievable.
8. I have reminded myself that my task is not to say if this is how I would have determined the appeal but to decide if it has been determined adequately. I also remind myself that, unlike the First-tier Tribunal Judge, I have had the benefit of assistance from very experienced Counsel who expects very high standards. Nevertheless I have still come to the conclusion that this determination is inadequate in law. It gives no proper explanation for the cause of uncontroversial injuries or how those injuries impact on the appellant's credibility.
9. It is similarly wrong in law not to have shown proper regard to background material about cultural practices when they can illuminate the core of the case.
10. These things do not mean that the First-tier Tribunal Judge has reached the wrong conclusion but they do satisfy me that it has been reached for reasons that are wrong in law and for that reason I set aside the decision of the First-tier Tribunal.
11. I must now decide how to advance the matter further. I appreciate that when the case came before the First-tier Tribunal legal aid had not been granted and the appellant's solicitors may have done the best that could be done with the resources open to them but there are many strands of enquiry that could be made to good effect and the present solicitors appear to be funded and willing to do them. They should be given time to do that.
12. I have asked myself if this is a case that comes within the Practice Direction that permits some cases to be heard again by the First-tier Tribunal rather than re-determined in the Upper Tribunal. I think this is on the borderline but I am persuaded that the proper course is to send this appeal to the First-tier Tribunal to be determined again when all the relevant points can be taken and used to determine the appeal properly.
13. I therefore allow the appeal and set aside the decision of the First-tier Tribunal and direct that the appeal be determined again by the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 15 July 2013