Tribunal decisions

The decision

IAC-fH-nl-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da/02417/2013

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 16 January 2017
On 2 February 2017

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

kk
(aNONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Chelvan of Counsel instructed by Kesar & Co Solicitors
For the Respondent: Mr K Norton, Home Office Presenting Officer

DECISION AND REASONS
The Appellant
1. The appellant appeals the decision of First-tier Tribunal Judge Burnett promulgated on 6 October 2016 whereby his appeal was dismissed on international protection grounds under the Immigration Rules and on human rights grounds. The appellant is a Sri Lankan national born on 25 March 1979. On 24 November 2013 the Respondent signed a deportation order deciding that Section 32 of the UK Borders Act 2007 applied. The appellant appealed under Section 82(3A) of the Nationality, Immigration and Asylum Act 2002.
2. The appellant's asylum claim was based upon his fears that if he returned he would face mistreatment owing to his imputed political opinion. He entered the United Kingdom in July 1999 and made a claim for asylum which was refused on 11 October 2000. He was appeal rights exhausted on 21 October 2003. The applicant married a British citizen on 28 May 2008 and at the date of decision they had one daughter but a further child has now been born. In 2005 the appellant made further representations on the basis that the UK would be in violation of Article 3 and 8 of the ECHR should he be returned to Sri Lanka.
3. In the decision letter of 25 November 2013 the applicant's claim for asylum was rejected in the light of GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 and he was excluded from the protection of the Refugee Convention by virtue of Article 33(3) and excluded from protection in relation to humanitarian protection owing to his former activity in Sri Lanka.
4. It was also concluded that the applicant would not be at real risk of Article 3 inhuman and degrading treatment or punishment. It was noted that he experienced a mental health problem but no evidence of that had been submitted and further there were medical facilities in Sri Lanka.
5. In relation to Article 8, paragraph 398 of the Immigration Rules applied and it was noted that the applicant had been convicted of criminal damage and sentenced to a period of fifteen months' imprisonment. Paragraph 399 and 399A were considered but nonetheless his removal from the United Kingdom was deemed proportionate. It was accepted he had a relationship with a British citizen but this decision imposed no expectation on the appellant's wife to leave. Further the relationship was entered into at a time when he had no basis to stay in the UK and there was no evidence that she relied on him for the day-to-day welfare and wellbeing. It was concluded he had only been in the UK for fourteen years, had entered the UK illegally and that he retained ties with Sri Lanka.
6. The matter came before First-tier Tribunal Judge Burnett who dismissed the appeal. The applicant's representatives sought permission to appeal which was granted on all grounds by First-tier Tribunal Judge Holmes. At the core of the challenge was the treatment of a new scarring report from a medical professional Mr Mason. The application was made on four grounds:
(i) The judge erred in the approach to the expert evidence and credibility. It was submitted that the First-tier Tribunal Judge materially erred in his treatment of Dr Mason's scarring report. The judge found briefly at paragraph 69 that Dr Mason's expert report was "unsatisfactory and the explanations inadequate for the conclusions reached" and was "not prepared to give any weight to the scarring report in my assessment". It was submitted that it was trite law that if an uncontradicted expert report was not to be accepted, clear reasons must be given.
(ii) there was a flawed approach to credibility - the judge failed to address the appellant's explanation of the discrepancies
(iii) the judge failed to address properly Dr Alyas report in relation to the 'very high' suicide risk. The fact that his claim is disbelieved does not of itself discount that he has a genuinely held fear of return.
(iv) The judge failed to address all the circumstances in relation to 'unduly harsh' effect on his wife and child including his alcoholism and his rehabilitation.
7. At the hearing before me Mr Chelvan submitted that the key and binding guidance of the reported decision in KV (scarring: medical evidence) Sri Lanka [2014] UKUT 230 was the most recent guidance in respect of scarring and protection claims and that the respondent's silence in the Rule 24 report implied either a lack of challenge so the error of law appeal should be allowed or an omission arising from a lack of engagement with the decision to grant permission to appeal. He also submitted that the First-tier Tribunal approached the assessment on the basis of the earlier guidance in JL (medical reports: credibility) China [2013] UKUT 00145 (IAC) and this was in error.
8. Mr Chelvan made a further reference to the consideration by the First-tier Tribunal Judge of a previous decision by an Adjudicator, Mr Eames, who dismissed the appellant's asylum appeal previously having considered a medical report by a Psychiatrist Dr Coleman. Mr Eames in a decision promulgated on 9 June 2002 found as follows:
"The photographs of his scars, and particularly that of the fingers of his right hand are graphic, all leave me with doubts as to their cause. Dr Coleman reported that:
"The scars on his legs were consistent with scars from beatings" but, as he does not specify beatings with what instrument, and provided no information as to his experience in dealing with traumatic injuries, I find his conclusions unconvincing. I note that all the scars (bar one faint one) are below the knees, and that male lower legs are exposed when dressed in the normal garb worn in Sri Lanka."
9. Adjudicator Eames' decision was subject to challenge specifically in relation to the psychiatric report prepared by Dr Coleman and which the Adjudicator found unconvincing. His treatment and assessment of that report, however, was upheld on the basis that the Adjudicator had the opportunity to be able to compare the appellant's various inconsistent accounts and rejected them. In the circumstances His Honour, Judge .... was not persuaded that the Adjudicator's assessment of Dr Coleman's evidence was wrong or unsustainable nor that the Adjudicator erred in his conclusions regarding the physical evidence of scarring which was also the subject of complaint.
10. At paragraph 61 Judge Burnett recorded that in the Adjudicator's decision of June 2002 states, "all the scars on his body are on his legs". That is not a direct quote and it is clear that the Adjudicator rejected his claims of his injuries, not least because of his differing accounts and that he would not have been in a fit state to travel if any of his claimed injuries had been caused during the final month before leaving (see paragraph 55) as claimed. That is recorded by Judge Burnett.
11. The grounds of challenge asserted that the 2002 examination by Dr Coleman was a psychiatric report based on single meeting with the appellant in HMP Belmarsh and did not involve a full body examination and therefore would not reveal the scarring attributed to cigarette burns on the appellant's shoulder.
12. Nonetheless the report of Mr Mason was evidence which should have been given weight. The report of Dr Coleman had been assessed by the Adjudicator Eames closer to the time but it was a psychiatric assessment. Although the photographs which were clearly available to that Tribunal then were not before Judge Burnett and they would have settled the issue in relation to the cigarette burns but it was the appellant's account of his own injuries, not only the assessment by Dr Coleman which was relevant. Dr Coleman was a psychiatrist and did not produce a report specific to scarring but he nonetheless referred to it.
13. The judge rejected Mr Mason's report on the basis that it made additional references to cigarette burns and there was nothing to that effect cited by the many statements provided by the appellant for his previous appeal well before the current statement in 2016. However to refuse to give any weight to the scarring report at all when it was specifically prepared for the Tribunal on the basis of scarring and KV (scarring: medical evidence) at paragraph 283 identifies that evaluation should be based on the physician's clinical expertise and professional expertise. In other words the previous report on scarring was prepared by a psychiatrist, the photographs are not available and the examination of the scars by the psychiatrist, Dr Coleman, is confined to three and a half line.
14. The submission of Mr Chelvan was that the appellant did not take off his clothes during the psychiatric assessment and to draw conclusions in relation to the cigarette burns would have depended upon the appellant removing his clothing which was not evident from the report of the psychiatrist.
15. Mr Norton submitted that there was a very detailed determination which was well-written and no material error. Judge Burnett had considered the matter in the light of the further evidence coming to light only in 2016. There was no error in failing to consider all of the discrepancies and both JL and KV were still good law albeit that JL did not deal with self inflicted wounds.
16. It is clear at paragraph 69 that Judge Burnett gave no weight to the scarring reports in his assessment at all, identifying that the additional references to cigarette burns which should have been referred to in the many statements provided by the appellant for his previous appeal and well before the current statement in 2016. Even if a cigarette burn were considered to be self inflicted and subsequent to the Coleman report it was incumbent upon the judge to consider the remaining report which included the leg markings and indeed I note the judge's comments at paragraph 62:
"62. I note that Appendix 2 of Mr Mason's report was not originally included in the bundle of documents but it was sent during the hearing. Photographs 4 and 5 on Appendix 2, are stated to be the scars resulting from being hung upside down and are 'typical' of the scars that would result from wounds caused by prolonged suspension upside down with metal clasps around the appellant's ankles. These scars were originally attributed to have been caused by being beaten across the legs. (See page 9 of Dr Coleman's report). The photographs (Appendix 2) are not very detailed and it is difficult to see clearly the length of the scar and whether the scars run around the leg or just across the front. However, from the photograph it appears that the scar runs across the front of the legs only. Mr Mason does not provide explanation as to why he is of the view that the scars are 'typical' of the injury inflicted. He does not explain the lack of any scar to the back of the leg or the lack of any scar running around the appellant's leg to show the circular nature of the clasp he describes as causing the injury. He does not state he has taken any of this into account in forming his opinions as to its cause. I will return to this report below."
17. The judge however would appear almost to ignore the report of the doctor Mr Andrew Mason, a specialist in accident and emergency medicine, which specifically refers to the leg injury as being circumferential, in preference to his own assessment from a photograph in which, as he states, "it is difficult to see clearly the length of the scar and whether the scars run around the leg or just across the front".
18. I am not persuaded that the judge's reliance on JL (medical reports: credibility) China [2913] UKUT 00145 (IAC) was an error; that authority confirms that judges should be aware that whilst the overall assessment of credibility is for them, medical reports may well involve assessments of the compatibility of the appellant's account with physical marks or symptoms or mental condition SA (Somalia) [2006] EWCA Civ 1302, but the judge made no reference to KV.
19. The headnote of KV states
'Where there is a presenting feature of the case that raises self-infliction by proxy (SIBP) as a more than fanciful possibility of the explanation for scarring:-
(i) a medical report adduced on behalf of a claimant will be expected to engage with that issue; it cannot eliminate a priori or routinely the possibility of SIBP; and
(ii) a judicial fact-finder will be expected to address the matter, compatibly with procedural fairness, in deciding whether, on all the evidence, the claimant has discharged the burden of proving that he or she was reasonably likely to have been scarred by torturers against his or her will'.
20. I do have regard to the case of MN (Sri Lanka) v Secretary of State [2014] EWCA Civ 1601 but I find that it was not open to the judge to give no weight to the report for the reasons and the limited reasons that he did bearing in mind my observations. I consider the medical evidence assessment is critical in this matter and for the reasons given I set aside the decision of Judge Burnett. Owing to the fundamental nature of the approach to the medical evidence, I have not sought to consider the remaining grounds. Nonetheless the matter will be set aside and referred to the First-tier Tribunal for reconsideration.
Notice of Decision
The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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 their 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.

Signed Helen Rimington Date 1st February 2017

Upper Tribunal Judge Rimington