Tribunal decisions

The decision

HA (Remittal - Reading Previous Determination - Criteria) Turkey [2003] UKIAT 00061

IMMIGRATION APPEAL TRIBUNAL

Date heard: 7 August 2003
Date notified..4TH September 2003.

Before:-
.

DR H H STOREY (Chairman)
MR C H BENNETT

Between

Appellant

And

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

DETERMINATION AND REASONS

1. The appellant, a national of Turkey, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr E H Woodcraft, dismissing the appeal against the decision by the respondent refusing to grant leave to enter on asylum grounds. Mr J Bruce of Counsel instructed by Duncan Lewis & Co Solicitors represented the appellant. Miss C Hanrahan appeared for the respondent.

2. The Tribunal has decided to dismiss this appeal.

3. This was an appeal which had previously been remitted by the Tribunal in the light of inadequacies in findings made by the previous adjudicator. In the determination written by the next adjudicator, Mr Woodcraft, he said he had read the original adjudicator’s determination.

4. The grounds of appeal were threefold. First, they contended that the adjudicator had failed to decide the hearing afresh. Second, they submitted that the adjudicator had wrongly denied the appellant the opportunity to comment on his decision to read the previous adjudicator’s determination or to prepare submissions on the contents of the previous determination. Finally, they maintained that the adjudicator had erred in his rejection of the claimant’s explanation of inconsistencies in his different accounts in terms of loss of memory. That was contrary, they stated, to the medical evidence before the adjudicator.

5. Turning first to the question of whether the adjudicator dealt with the appeal afresh, we can find no reference in the adjudicator`s record of proceedings to the previous adjudicator’s determination. However, we do have a note of proceedings taken by the appellant’s representatives. It records, part-way through cross-examination, the following exchange:

“Adj. Can we move on, I`m conscious of the ground covered on credibility by the first adjudicator. I`m conscious of Devalseelan.
HOPO: No sir, this is a de novo hearing. You don’t have to consider the other determination.”

6. Mr Bruce`s contention was that this demonstrated that the adjudicator adopted the wrong approach. We think that contention goes too far. He is quite right to point out that the case required a fresh consideration and so that any reference by the adjudicator to Devaseelan was wholly misconceived: the appeal before him was not a human rights appeal made subsequent to a determination refusing an asylum appeal However, it is necessary to consider this passage in the context of the hearing as a whole and the adjudicator’s subsequent determination. Even assuming the representative’s note of proceedings is correct, this passage at most demonstrates that the adjudicator, at this point in the proceedings, wrongly considered the case as one in which the findings of fact of the previous adjudicator could be taken as a start-point. However, it also records the HOPO pointing out his error. If one takes what is said by the HOPO at this point and places it side by side with what the adjudicator said at paragraph 14 of his determination, it is reasonably clear that from this point on the adjudicator fully took on board that he had to determine the appeal de novo. At paragraph 13 he set out what the Tribunal had said when remitting the case. At paragraph 14 he said:

“The matter was accordingly remitted and came before me at Taylor House on 18 March 2003. My approach in dealing with this appeal is to consider matters afresh but to pay particular attention to those matters which the Tribunal have determined are important in deciding the case. To that end it is necessary for me to have read both the original adjudicator`s decision and the determination of the Tribunal and I cannot therefore accept the submission made that it is not appropriate for me to read the determination of the previous adjudicator in this case as quite apart from anything else, it is necessary for me to avoid failing into any errors that any other adjudicator might have made”.

7. This passage states very clearly that he considered the case afresh.

8. Mr Bruce argued that in other passages the adjudicator set out his intention to concentrate on those areas identified by the Tribunal as missing from the first determination, thereby limiting himself to specific points only and taking as a basis findings made by the previous adjudicator. With respect, this misrepresents what the adjudicator said. In the first place, he talked about paying particular attention to points made by the Tribunal, not about paying particular attention to points made by the first adjudicator. And secondly, he did not talk about confining himself to the points made by the Tribunal. Furthermore, it is clear from the representative’s note of proceedings and the adjudicator’s own determination that in the course of the hearing the appellant was able to present his case in its entirety and that in his determination the adjudicator addressed the case taking all relevant aspects into account. Mr Bruce has been unable to point us to any evidence that the adjudicator persisted with his initial error. Nor has he been able to point to any evidence that, after this error was pointed out to him, he wrongly fettered his approach to the evidence by reference to the findings of the first adjudicator.

9. That brings us to the contention that the adjudicator wrongly denied the parties an opportunity to make submissions concerning his intention to read the determination of the first adjudicator.

10. Mr Bruce conceded, with reference to the case of Gashi (01/TH/02902) that there is no prohibition on an adjudicator reading a previous determination. He submitted, however, that the adjudicator in this case had offended the second guideline set out in Gashi, which reads:

“If the adjudicator considers it appropriate to read the Determination, he should not do so until he has told the parties of his intention, and invited their comments”.

11. However, we do not see that this guideline was breached in any significant way by the adjudicator. Whilst it may be that he failed to invite comments relating to this matter, it is perfectly clear that he received them. As already noted, he stated at paragraph 14 that:

“I cannot therefore accept the submission made that is not appropriate for me to read the determination of the previous adjudicator …”.

12. It cannot be said, therefore, that the parties were denied an opportunity to make submissions upon this matter.

13. Before moving on, we would reiterate the point that the Gashi guidelines do not state that it is an error of law for an adjudicator to read the determination of a previous adjudicators in an appeal remitted to him. Rather they seek to lay down best practice as to when it should be done and how. The underlying principle remains that set out in Ahmed Aissaoui [1997] Imm AR 184 in which Mr Justice Collins held that there was no reason in principle why a second adjudicator should not read the determination of the first adjudicator on a hearing de novo, provided he does not allow it in any way to influence the decision he had to make on a fresh consideration of the whole case.

14. This case does, however, highlight the importance of not confusing the situation which arises when a case is remitted to an adjudicator with the entirely different one arising in the case of free-standing human rights appeals where an adjudicator typically has before him a previous determination by a fellow-adjudicator refusing an asylum appeal. The latter situation is subject to the principles set out in Devaseelan [2002] UKIAT 00702. The former is not.

15. The third main point raised in the grounds concerns the adjudicator`s treatment of the medical evidence. In earlier statements and at the hearing the appellant had sought to explain inconsistencies between his SEF statement and later accounts in terms of memory loss. The adjudicator rejected this explanation. He stated that the report from Dr Rundle “does not appear to refer to difficulties in memory at all”. Mr Bruce says this was not correct, since Dr Rundle had found the appellant suffered from PTSD and had referred in his report to the ICD-10 diagnostic criteria which stated at F43 1 D that relevant symptoms of PTSD included in those criteria were:

“Inability to recall, either partially or completely, some important aspects of the period of exposure to the stressor”;
[and]
…difficulty in concentrating”.

16. Similar criteria were identified in Medical Foundation and BMJ literature before the adjudicator. Particular reliance was placed on an article by J Horlihy, P Scragg and S. Turner entitled “Discrepancies in autographical memoirs – implications for the assessment of asylum-seekers: repeated interviews study.”, BMJ Vol 324 9 February 2002. Effectively, Mr Bruce submitted, the adjudicator had sought to substitute his own assessment for that of a reputable medical specialist.

17. We see no merit in these submissions. It may be that at paragraph 78 of his report Dr Rundle did identify the appellant as exhibiting other features of PTSD – and that they included those listed at F 43 1 D. However, it was significant that he did not consider this to be an important enough feature of the appellant’s condition to mention in his own detailed description of this man’s physical and psychological symptoms. Furthermore, he did not record the appellant as having had any significant difficulty in recounting his experiences to him.

18. As the BMJ article makes clear, there is a great need in asylum cases to take account of any psychological difficulties when it comes to assessing credibility. However, this requires examination of the particular circumstances obtaining in any individual case. It would be absurd if the ICD-10 criteria were to be read to mean that all persons who suffer from PTSD have a memory loss which prevents them from giving a proper account of themselves in the context of an asylum claim.

19. We are satisfied that the adjudicator in this case gave careful consideration to the claimant’s explanation of memory loss by reference to the medical evidence. In our view, he was quite entitled to conclude that Dr Rundle`s report did not bear out that the appellant had been prevented by memory loss from giving a proper account of himself in relation to his asylum claim. At paragraphs 29 and 30 he stated:

“The appellant also say he suffers from loss of memory since that time [ 1997]. I note his memory loss did not prevent him from making a 12-page statement shortly after he had arrived in the UK, nor did it apparently stop him from making a 17-page statement for these proceedings. …

I did not accept the appellant’s description of his difficulties with his memory. It seems to me from having observed the appellant’s demeanour that he finds it difficult to recall things when the questions put to him are to do with inconsistencies in his accounts. He is unable to recall precisely the number of days he spent in hospital or the number of days he spent in prison and yet he cannot explain why he gave the date of 1978 in his SEF form. Dr Rundle does not say that the appellant’s supposed difficulties with memory are related to his physical condition. Indeed Dr Rundle does not appear to refer to difficulties in memory at all”

20. In our view the adjudicator, having carefully assessed the medical evidence, was quite entitled to make findings based on his own assessment of the appellant`s oral testimony. The Tribunal will not lightly interfere with primary findings of fact made by an adjudicator who has seen and heard an appellant. Given the care this adjudicator took to consider the appellant’s evidence in the light of the medical evidence, we certainly see no basis for interfering in this case.

21. The grounds also raised concerns about a number of points which the adjudicator had identified as “inconsistencies” but which the grounds asserted did not merit that description. These concerns were not repeated by Mr Bruce and in our view rightly so. The adjudicator`s identification of a number of serious inconsistencies in material aspects of the appellant’s account was entirely justified. The appellant had been unable to satisfactorily explain them.

22. For the above reasons this appeal is dismissed.

DR H H STOREY
VICE-PRESIDENT