Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/05287/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 06 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Applicant

and

CECILE TIANARIVO
(anonymity direction NOT MADE)
Respondent

Representation:

For the Applicant: Mr S Stanton of the Specialist Appeals Team
For the Respondent: Ms R Moffatt of Counsel, instructed by ATLEU

DECISION AND REASONS

The Respondent
1. The Respondent to whom I shall refer as "the Applicant" is a citizen of Madagascar, born on 1 September 1986. On 10 September 2010 she arrived with entry clearance as a Domestic Worker which leave was extended on two occasions so as to expire on 25 March 2014. In time she made a further application which was refused whereupon she made another application which was also refused. She then applied to make a voluntary departure and stated she could not afford the ticket and was then arrested. On 15 September 2014 she sought asylum on the basis that she was a victim of trafficking.
2. She was referred to the Competent Authority which decided there were reasonable grounds to believe she could be a victim of trafficking but reached a conclusive grounds decision on 5 January 2015 that on the balance of probabilities she was not a victim of trafficking.
The Home Office Decision
3. Also on 5 January 2015 the Applicant to whom I shall refer as "the SSHD" refused her claim for international surrogate protection and under Article 8 of the European Convention.
4. The Respondent found the Applicant had not given a credible account of the circumstances and basis for her claims that she would be at risk and would not be able to integrate into life in Madagascar on return.
5. On or about 6 February 2015 the Applicant lodged notice of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act). The grounds refer to the solicitors only having been instructed in the same week and not having been able to interview the Applicant in her first language. The Applicant had been interviewed by the SSHD in English. The other grounds are formulaic or generic.
The First-tier Tribunal Proceedings
6. The Applicant did not give oral testimony at the hearing before Judge of the First-tier Tribunal Farmer on the basis of advice given in a report prepared by Dr E Walsh, a clinical psychologist. There were no other witnesses.
7. The Judge concluded that the Applicant's account was credible and accepted the evidence of Dr Walsh. She considered the inconsistencies which had been identified in her account did not damage her credibility, referring to the Country Expert report of Dr L Freeman who found the Applicant would be at risk on return to Madagascar as a female former victim of trafficking. She allowed the appeal on asylum grounds and having done so purported to allow it also on humanitarian protection grounds, although the two are, in effect, mutually exclusive. She also allowed the appeal on human rights grounds by reference to Article 3 of the European Convention.
8. The SSHD sought permission to appeal on the grounds that the Judge had failed to give adequate reasons for her findings on material matters; had failed to address the apparent inconsistency between the psychologist's report recommending that she did not give oral testimony and the Applicant's full articulation of her claim when interviewed by the SSHD and her lengthy witness statements. Further, until Dr Walsh's report of 24 February there had been no suggestion that the Applicant had medical or psychological issues.
9. The SSHD was of the view that in the light of the evidence and the Judge's failure to address various indentified inconsistencies, her reliance on the claimed exploitation of the Applicant and her medical condition was irrational and in any event was a material error of law.
10. The Judge had failed to give reasons why she accepted the Applicant's testimony that she was not in contact with any family in Madagascar and would have no support on return was also an error of law.
11. On 12 December 2016 Judge of the First-tier Tribunal Simpson granted permission to appeal on the ground that there were issues in relation to Dr Walsh's report being submitted very late. The Judge arguably ought to have subjected it to considerably more scrutiny than she did which together with the other grounds disclosed arguable errors of law.
The Upper Tribunal hearing
12. The Applicant was not present at the hearing.
Submissions for the SSHD
13. Mr Stanton for the SSHD relied on the detailed grounds for appeal and especially the paragraphs relating to the Judge's treatment of Dr Walsh's report and that in paragraphs 15 and 23 the Judge had not given reasons for her positive credibility finding and had not addressed the inconsistencies raised by the SSHD in the Reasons for Refusal Letter.
Submissions for the Applicant
14. Ms Moffatt relied on the response filed under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The response includes a statement by Dr Walsh setting out her academic and professional qualifications and experience. The response asserts that taking into account Dr Walsh's experience the Judge was entitled to rely on her report including her diagnosis that the Applicant suffered from post-traumatic stress disorder.
15. The Judge had summarised the SSHD's reasons for refusal at paragraphs 18 and 19 of her decision and having given detailed reasons for finding the Applicant to be credible was not required to make specific findings on every factual matter in dispute. The Applicant relied on the decision in Budhathoki (reasons for decisions) [2014] UKUT 00341 (IAC).
16. He continued that there was medical evidence before the Judge that the Applicant suffered from depression and her failure to produce a psychologist's report until very shortly before the appeal was heard should not be held against the Applicant. There was no reason for the Judge to have discounted Dr Walsh's report. The Judge was entitled to rely on the report and there was nothing in it which could be impugned.
17. The Judge did not need to make specific credibility findings because she had summarised the Respondent's reasons for refusal at paragraphs 18 and 19 of her decision and had then relied on the medical evidence at paragraph 23 of her decision. She had addressed the inconsistencies at paragraphs 24 and 27 and the general credibility findings made at paragraphs 22 and 29 were open to her.
18. Having found the Applicant credible, the Judge's findings that she had no family from whom she could seek support on return to Madagascar were open to her.
Consideration and Conclusion
19. The Judge's summary of the main points from the SSHD's Reasons for Refusal Letter did not excuse her from the need to address those points or at least the more material ones. This was particularly so because there was no oral testimony from the Applicant or anyone for her.
20. The Judge gave little or no reasons why she accepted the Applicant's evidence as credible. Referring to paragraphs 24-28 and 33 in her decision, various findings of consistency are made but consistency is not the same as credibility. Further and more importantly, these findings do not adequately address the matters raised in the reasons letter.
21. I take into account the learning in JL (medical reports - credibility) China [2013] UKUT 00145 (IAC). Given the distinguished curriculum vitae disclosed in Dr Walsh's statement filed with the Applicant's Rule 24 response, it is unfortunate that at least some of this was not included in Appendix C to her report. Reference at the hearing was made to the SSHD's policy about reports from the Helen Bamber Foundation but this report of Dr Walsh appears not to have been prepared under its auspices and therefore the guidance will have no application. The Judge evidently placed great weight on Dr Walsh's report but failed to give adequate reasons why or to direct herself that it was not the function of Dr Walsh to assess the credibility of the Applicant. That was the function of the Judge and her decision does not show that she adequately performed that function. This is a material error of law.
22. Finally, the decision does not give a sufficiently reasoned explanation why the appeal was allowed so that the SSHD as the losing party was not adequately informed why she had lost.
23. The decision of the First-tier Tribunal contained material errors of law such that it should be set aside in its entirety and the appeal shall be heard afresh in its entirety. It is remitted to the First-tier Tribunal for hearing afresh in accordance with Section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 and paragraph 7.2 of the Senior President's Practice Statement of 10 February 2010 (as amended).
Anonymity
24. There was no request for an anonymity order or direction and having considered the appeal I do not find any is warranted.

SUMMARY OF DECISION

The decision of the First-tier Tribunal involved the making of an error of law and is set aside and the appeal is remitted to the First-tier Tribunal for hearing afresh.

The appeal of the SSHD is to that extent allowed.

No anonymity order or direction is made.

Signed/Official Crest Date 02. ii. 2017

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal