Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01387/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 21 October 2016
On 03 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

SHAFIQUOLLA [J]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Gaisford (counsel) instructed by J D Spicer Zeb, solicitors
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Maxwell promulgated on 9 September 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant's date of birth is disputed, but is recorded as 8 October 1991. He is a national of Afghanistan.
4. On 15 September2015 the Secretary of State refused the Appellant's protection claim.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Maxwell ("the Judge") dismissed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged and on 29 September 2016 Judge Grant-Hutchison gave permission to appeal stating inter alia
"2. It is arguable that the Judge has misdirected himself (a) by failing to give any reasons in relation to the expert report of Dr Atul Khanna (b) by finding that Dr Halari's report was prepared "without the benefit of the appellant's medical notes" and that his medical records have also "not been disclosed to either the respondent or this tribunal" when Dr Halari had evidence from the appellant's Doctor that the appellant had PTSD and that such medical notes as there were in the appellant's possession had been submitted as part of the appellants bundle; (c) in relying on a photograph taken prior to 2010 of the appellant to evaluate the appellant's age without taking into account all the evidence. As a result, this could make a material difference to the credibility of the appellant and a material difference to the outcome."
7. This case called before me in the Upper Tribunal on 28 October 2016. After hearing submissions, the hearing was continued, effectively on joint motion, with the following directions.
"1. The appellant is to consider lodging a statement of evidence from Ms Sanders providing her recollection of the production of an expert report from Dr Khanna at the hearing on 29th February 2016, and the evidence and submissions relating to that report at the hearing on 18 August 2016.
2. If the appellant decides to lodge such a statement of evidence it must be intimated to the respondent and lodged with the Upper Tribunal within 21 days of service of these directions.
3. If the appellant decides not to lodge such a statement of evidence, he must advise the Upper Tribunal and the respondent that he will not be relying on such a statement of evidence within 21 days of service of these directions.
4. Thereafter this case should be relisted for an error of law hearing with a time estimate of one hour."

The Hearing
8. (a) Ms Sanders provided a statement of evidence. Out of courtesy, she was present and was willing to give evidence, but parties' agents declared at the outset that neither side had any questions for her. The witness statements provided both by Ms Sanders and her instructing agents are inconclusive. Ms Sanders sets out her memory of production of a report from Dr Khanna, but expresses a realistic reluctance to place unquestioningly reliance on that memory. Ms Sander's instructing solicitor candidly states that Dr Khanna's report was neither filed nor served
(b) Counsel for the appellant told me that he was keen to proceed by making submissions in relation to the second and fifth grounds of appeal. He formally adopted the grounds of appeal in their entirety, but told me that the focus in this case would be on the Judge's treatment of Dr Halari's report between [30] and [34] of the decision.
(c) Mr Gaisford reminded me that there is a letter from West Hertfordshire hospitals (in the appellant's bundle, lodged with the First-tier) which confirms the appellant was diagnosed with post-traumatic stress disorder. He told me that even though that clear diagnosis was before the Judge, no reference was made to the letter contained the diagnosis in the decision, and, at [32] the Judge is critical of Dr Halari for recording that there is an existing diagnosis of PTSD. In the light of the letter from West Hertfordshire hospitals recording that diagnosis, I was told that the was no foundation for the Judge's criticism
(d) I was told that in the first sentence of [32] the Judge acknowledges that Dr Halari is an expert, but the Judge then goes on to attach little weight to a report containing her expert opinion. Counsel told me that the Judge gave inadequate reasons for failing to attach weight to the expert report. I was told that the decision contains errors of fact, and that the combination of the Judge's refusal to place weight on an expert report which complied with the Istanbul protocol together with the Judge's errors of fact amount of a material error of law. Counsel asked me to set the decision aside and to remit this case to the First-tier tribunal to be determined of new.
9. Mr Nath, for the respondent, focused on [32] to [36] of the decision and told me that the decision does not contain errors of law, material or otherwise. He told me that the Judge carefully considered the available medical evidence and then, after considering every source of evidence in the round, found that, for the reasons set out at [35] and [36], he could not rely on the conclusions of Dr Halari. He asked me to dismiss the appeal and allow the decision to stand.
10. Both parties representatives agreed that I should take as my starting point the Judge's acknowledgement in the first sentence of [32] that
"Dr Halari is an expert in her field ?"
That I should then consider the terms of her report, and thereafter consider whether the final sentence of [43 (iii)] is a conclusion which the Judge could reasonably reach.
Analysis
11. Dr Halari's is now reproduced between pages 158 and 200 of the appellants bundle of documents, prepared for the hearing on 28 October 2016. Dr Halari provides details of her qualifications and experience in appendix 1 to the report. There is no challenge to the Judge's finding that Dr Halari is an expert in her field. Dr Halari sets out the information that she had access to, together with the detailed instructions she received, before clarifying the investigation of the facts that she has carried out and identifying the facts that she has assumed. Dr Halari then sets out in chronological order the background history provided by the appellant.
12. At paragraph 30 of her report, Dr Halari correctly sets out that the appellant has a diagnosis of post-traumatic stress disorder and provides details of his oral medication, all of which is confirmed by the documentary evidence produced by the appellant's solicitors.
13. Dr Halari then records and considers the account given by the appellant, both of his asylum claim and the circumstances that he finds himself in, before embarking on a psychological examination. There, Dr Halari provides detailed clinical examination of the appellant relying not just on what she was told by the appellant, but also her observations of the appellant. Dr Halari then refers to the Impact of Events Scale (IES) and Creamer, Bell and Fallia (2003) before considering mood, memory and cognitive assessment.
14. From paragraph 111 of her report Dr Halari provides has opinion. In the first sentence of paragraph 130 of her report, she says
"In my opinion feigning of symptoms is unlikely."
In the first sentence of paragraph 140 of her report (and again at 152 to 160) she delivers an unambiguous opinion that the appellant is at risk of suicide.
15. Dr Halari summarises her conclusions between paragraphs 175 and 177 of her report. The final sentence of paragraph 175 says
"There is no evidence of malingering"
16. At [43(iii)] of his decision, the Judge gives very little weight to Dr Halari's report because he believed that there are inconsistencies in the account given by the appellant about the state of his health and the chronology of his claim in his asylum interview and in the interview for his age assessment. At [43(iv)] the Judge finds that the appellant is feigning his symptoms. No specific finding is made about whether or not the appellant suffers from PTSD.
17. In SM (Iran) v SSHD (2010) EWCA Civ 371 the Immigration Judge found that the Appellant's evidence was not credible, but made no finding in respect of her claim to have PTSD. The Court of Appeal said that whilst it may be difficult to postulate that all the unsatisfactory elements of the Appellant's evidence might be explained by a PTSD diagnosis, it was not possible to know what the Tribunal's approach to the evidence might have been had it accepted that the Appellant had PTSD. The claimant was entitled to a clear decision on whether she had PTSD and what effect that disorder had on her evidence.
18. If the finding at [43(iii) & (iv)] amounts to a finding that the appellant does not suffer from PTSD, the Judge gives inadequate reasons for reaching that conclusion. In any event the Judge gives inadequate reasons for finding that the appellant's performance at the conclusion of asylum interview and in the interview to assess his age provide sufficient material for effectively rejecting the detailed and carefully reasoned psychological assessment from an expert in the field.
19. In Y and Z (Sri Lanka) v SSHD (2009) EWCA Civ 362 the Court of Appeal said that whilst the factuality of a claimant's account might be so controverted by the Tribunal's own findings as to undermine the psychiatric evidence, care was required where the factual basis of the psychiatric findings was sought to be undermined by suggesting that the claimants had been exaggerating their symptoms. That was in the first instance a matter for the experts themselves, a fundamental aspect of whose expertise was the evaluation of the patients' accounts of their symptoms. Accordingly the Tribunal could modify or disregard that evaluation only if it had good and objective reasoning for discounting it.
20. In R (on the application of AM), Rix LJ said
"If an independent expert's findings, expert opinion, and honest belief (no one suggested that her belief was other than honest) are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of "evidence" is not the same as a requirement of "proof", conclusive or otherwise. Whether evidence amounts to proof, on any particular standards (and the burden and standard of proof in asylum cases are not high) is a matter of weight and assessment."
21. In this case there was expert evidence that the appellant suffers from PTSD and is tormented by suicidal ideation. The expert's report is consistent with other medical evidence produced. In considering the appellant's answers about his state of health in his asylum interview, the Judge did not take account of the potential effects of the appellant's mental illness detailed in the expert's report. In essence, the Judge has assessed the appellant's credibility separately from the expert's report, and, despite acknowledging that the author of the report is an expert, decided that he would not rely on the expert's opinion.
22. I therefore find that the decision is tainted by a material error of law. The Judge's decision must be side aside. None of the Judge's findings can stand. I consider whether I can substitute my own decision, but find that the extent of fact finding required means that a fresh hearing is necessary.
Remittal to First-Tier Tribunal
23. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First Tier Tribunal if the Upper Tribunal is satisfied that:
"(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."
24. In this case I have determined that the case should be remitted because a new fact finding exercise is required. None of the findings of fact are to stand and a complete re hearing is necessary.
25. I remit the matter to the First-tier Tribunal sitting at Taylor House to be heard before any First-tier Judge other than Judge JJ Maxwell.
CONCLUSION
Decision
26. The decision of the First-tier Tribunal is tainted by material errors of law.
27. I set aside the Judge's decision promulgated on 9 September 2016. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Date 23 December 2016

Deputy Upper Tribunal Judge Doyle