Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00097/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

M O M h
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Malik, Counsel
For the Respondent: Miss Isherwood, Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant. Breach of this order can be punished as a contempt of court. I make this order because there is a risk that publicity could of itself lead to the Appellant being harmed in the event of his return.
2. This is an appeal by a citizen of Sri Lanka against a decision of the First-tier Tribunal dismissing his appeal against a decision of the Secretary of State on 18 December 2015 refusing him asylum in the United Kingdom. Miss Isherwood for the Secretary of State has argued very forcefully that the decision is sound and has invited me to rule that the decision is right in law. I have reflected very carefully on Miss Isherwood’s submissions but I have come to the conclusion that the decision is not satisfactory in law.
3. The First-tier Tribunal took care in making its findings on credibility and conspicuously weighed several points in the balance before reaching a conclusion. There are matters of concern clearly identified as possible reasons to disbelieve the appellant’s account. These include the late disclosure of an asylum claim because he did not make it until after his leave to be in the United Kingdom had lapsed and an appeal against refusal renewal had been dismissed. There were parts of the account that were lacking in detail and the arrival of confirmatory evidence from Sri Lanka that he was wanted by the authorities came at a time that might be thought contrived.
4. Miss Isherwood argued that the First-tier Tribunal had done its job properly. It had looked at all of the evidence in the round and had come to a conclusion that was open to it.
5. I am not persuaded by this because I am persuaded by Mr Malik’s contrary argument that the decision is fundamentally flawed because the judge did not give sufficient weight to the findings of an expert report. I pause carefully at this point and remind myself that I am deciding whether or not the decision is wrong in law, not whether or not it is a decision I think I would have reached on the evidence, and I must be very careful before deciding that evidence has not been given sufficient weight in a way that it is unlawful. Directions like this often looks as though the Judge is merely disguising disagreement with the decision but I do not accept that my concern is mere disagreement. I find that this is error, because the First-tier Tribunal has not made it plain what part of the medical evidence was accepted by the Tribunal and how such acceptance fitted in to the analysis of the rest.
6. There are two points in the medical evidence which to me seem extremely clear. One of them is a finding that marks on this Appellant’s back are diagnostic of his being ill-treated. The Appellant says that he has been burnt with aluminium rods or something similar. The second is a finding that the Appellant suffers from post-traumatic stress disorder and one of the reasons given for that finding is the Appellant crying when he gave his evidence to the doctor. It might be thought that neither of these symptoms are things which can be feigned. I would have expected the judge, faced with evidence like this, to have reached an unequivocal conclusion that the Appellant does have post-traumatic stress disorder and has been seriously ill-treated. If there are reasons for reaching a contrary conclusion they have not been explained but it is not clear to me that the judge does accept that this man has been ill-treated and does suffer from post-traumatic stress disorder. The findings on these points are equivocal and I am not satisfied that the judge understands the significance of the evidence given.
7. The judge has directed himself at paragraph 34 relying on the decision of HH (Ethiopia) v SSHD [2007] EWCA Civ 306 that “’It was for the IJ to assess the claimant’s credibility in the light of all the evidence including the medical evidence’. This is precisely what I have done in this appeal.”
8. The direction is correct but I find that that the judge has not assessed credibility in the light of all the medical evidence, including the medical evidence. Rather, the judge has made an uncertain finding on credibility in which uncertain findings about the medical evidence had taken their part.
9. He continues in paragraph 34:-
“I have found the appellant’s evidence to lack credibility, and to be unreliable and implausible in relation to his claimed arrest, detention, torture, and claimed adverse interest in him by the authorities in Sri Lanka. My consideration of the medical report has been part of my decision making process in reaching all my findings in relation to this appellant.”
10. What the judge has not done is tell me whether he finds that the Appellant has been tortured or whether the injuries shown are attributable to some other cause (a decision that would be rather hard to justify) or were the result of torture in different circumstances, which does not seem to have been considered.
11. Mr Malik argued that the medical evidence which, as is usually the case, was unchallenged by the Secretary of State was from an apparently credible source and it should have been the starting point in the analysis. He says that the Judge should have been decided against the background of clear evidence that this is a man who for some reason suffers from post-traumatic stress disorder and has accumulated nasty scarring on his body as the result of deliberate ill-treatment. I am not saying that that is the approach that must always be followed in cases where there is medical evidence but I accept Mr Malik’s submission that is what should have happened here or, alternatively, proper reasons given for disagreeing with the medical examiner’s conclusion should have been given and that has not happened.
12. None of the reasons given for an adverse credibility finding are in the nature of “killer points”, if I may use the phrase, and if they were part of a rounded assessment then I am satisfied that the rounded assessment did not give proper weight to medical evidence which should either have been accepted or explained away and neither has clearly been done.
13. It follows therefore that I am persuaded that the decision as a whole is unsatisfactory and I must set it aside. This is not a case where I can substitute a decision. It is not necessarily the case that the Appellant’s case is established if the medical evidence is accepted. I find the case needs to go back and it should be best done in the First-tier Tribunal which would preserve options for everyone to consider their position after a decision had been made.
14. There is a further element in this case. The case came before my colleague, Upper Tribunal Judge Allen, in December 2016 and there was concern then that the medical report relied on in support of the grounds of appeal was not in quite the same terms as the medical report relied upon in support of the case before the First-tier Tribunal. There was disagreement about one or two sentences. An explanation has been provided. The report relied upon in support of the grounds was slightly more helpful to the Appellant than the report relied upon in support of the case before the First-tier Tribunal. The explanation is that a first draft had to be altered on the Appellant’s instructions because it was putting the case in too favourable way. It was altered and for some reason the wrong one was relied upon when the grounds were served by solicitors. This is the sort of mistake that we know perfectly well ought not to happen and we know perfectly well occasionally does happen. I am satisfied on what I have before me that this was an innocent mistake and not indicative of any bad practice on the part of the appellant or those representing him. It was not the reason that permission was granted.

Notice of Decision
For the reasons given above I set aside the decision of the First-tier Tribunal and direct that the appeal be determined again in the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 22 March 2017