Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/01450/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 9 January 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

miss s S M
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr C Mannan of Counsel instructed by Vasuki Solicitors
For the Respondent: Ms Z Ahmed, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, a national of Sri Lanka, has permission to challenge the decision of First-tier Tribunal (FtT) Judge Devittie sent on 25 August 2016 dismissing her appeal against a decision made by the respondent on 5 February 2016 refusing to grant asylum and humanitarian protection. Whilst in granting permission, Upper Tribunal Judge (UTJ) Rimington stated that the grounds were arguable on [the sur place point] alone, she did not formally restrict her grant. That is an important matter because in the absence of a formal restriction, I am not excluded from considering other grounds raised by the appellant. One of them, concerning the FtT judge's treatment of the medical evidence, seriously troubles me.

2. It was contended in the appellant's grounds that the judge had materially erred in law in respect of his assessment of the medical reports of Dr Al-Wakeel and Dr Dhumad. I leave to one side the matter of the judge's treatment of the report of Dr Dhumad concerning her depression and suicidal ideation, but the report by Dr Al-Wakeel dated 20 June 2016 considered that the appellant had scars "typical of the events described by the claimant of being intentionally burnt" and that "overall [in] my expert opinion I have no doubt that the injuries were caused by being intentionally injured" and that "the most likely explanation" was that she was "severely tortured as described". According to the Istanbul Protocol hierarchy of degrees of consistency, "typical of" is the second strongest level of consistency after "diagnostic" and higher than "highly consistent". This medical report took account of all relevant Home Office documents in the case and exhibits a clear understanding of appropriate methodology. The judge recognised at para 8(i) that this evidence "supports the appellant's account of past persecution" but then adds a description of its contents which is plainly inaccurate. The judge says that "[the medical evidence] says that the appellant's scarring and her depression are consistent with her account of the ill-treatment she claims to have suffered at the hands of the authorities". However, as just noted, the report by Dr Al-Wakeel found the scars "typical of" her claimed causation, which was two levels higher that "consistent". Further, the only evaluative reference made by the judge of this report was at 8(vi) which states:

"In the light of the unsatisfactory features I have identified, I find that I am unable to attach significant weight to the medical evidence, to the extent that it supports the appellant's account."

3. Whilst taken in isolation it is possible to read this passage as meaning to convey that the judge took account of the medical evidence holistically, the clear disregard shown earlier to the actual contents of Dr Al-Wakeel's report leads me to conclude that the judge simply decided to reject the report because of other unsatisfactory features in the appellant's evidence. That amounted to the classic Mibanga error of compartmentalising the non-medical and medical evidence: see HH (medical evidence: effect of Mibanga) [2005] UKIAT 00164.

4. In any event, I also consider that the judge materially erred in law in his treatment of the appellant's evidence of her sur place activities in the United Kingdom prior to her return to Sri Lanka in April 2014. The judge's only analysis of these was at [11] where he states: "In regard to the appellant's sur place activities I accept that she may have taken part in some LTTE activity in Sri Lanka". It is difficult to follow what this sentence means, but, one way or another, it says nothing at all about her claimed sur place activities in the UK. At the very least the judge should have made some reference to these when assessing her account of what happened when she returned to Sri Lanka in 2014.

5. For the above reasons I conclude that the judge materially erred in law and the nature of his errors necessitates that I set aside his decision.

6. I have considered what form my disposal of the appeal should take. I have decided that the nature of the judge's errors make it impossible to preserve my findings of fact. Accordingly, I remit it to the First-tier Tribunal not before FtT Judge Devittie.

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 Date

Dr H H Storey
Judge of the Upper Tribunal