Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02039/2016
PA/02042/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 21 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

CNJMG
SDFBB
(ANONYMITY ORDER MADE)
Appellants
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr Mannan of Counsel
For the Respondent: Mr Jarvis a Home Office Presenting Officer

DECISION AND REASONS

Background
1. Upper Tribunal Judge Lindsley granted permission to appeal (6 February 2017) noting that the application related only to the first Appellant. However, I note that whilst the grounds seeking permission only had one matter number at the top, both Appellants were named in the heading and the application form gave the name of the first Appellant plus 1. Having heard submissions, I am satisfied that there was a clear intention to apply on behalf of both Appellants and I extend time for permission to appeal to the second Appellant accordingly as to do so would be unjust, and grant permission to appeal on the same grounds as Judge Lindsley.
2. I retain the anonymity order previously made pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 as the Appellants’ asylum and ancillary protection claims, for reasons that will become clear, remain outstanding.

3. The Respondent refused the Appellants’ applications for asylum and ancillary protection on 16 February 2016. Their appeals against this were dismissed by First-tier Tribunal Judge Owens (“the Judge”) following a hearing on 7 November 2016.

The grant of permission

4. Judge Lindsley granted permission to appeal (6 February 2017). She said,

“it is arguable that the First-tier Tribunal has erred in law by finding the appellant not be a credible witness at paragraphs 41 to 60 of the decision based on her immigration application history prior to putting the substantive issues of the asylum claim in the balance, and particularly the medical evidence of Dr Goldberg. It is also arguable that the rejection of the physical scars evidence at paragraphs 85 to 89 is not lawful as there is insufficient reason to reject the evidence that they support the appellant being a victim of torture given the acceptance that Dr Goldberg had properly considered and ruled out self-infliction at paragraph 88 of the decision. As it is arguable that the appellant’s credibility has not been lawfully assessed in the round, despite the direction of paragraph 50” to “that effect, it is arguable that the negative determination of the protection claim is unsafe. If it were accepted that the appellant had been detained and tortured after the ceasefire in Sri Lanka in April 2009 then it is arguable that GJ would support the appellant being at risk of serious harm and return absent any good reason why it would not be repeated, see 339K of the Immigration Rules.”

Appellant’s position

5. Mr Mannan relied on the grounds in support of the application. He added orally that the Judge gave a simplistic summary of the Appellant’s case [5]. In relation to the findings she dealt with the issue of delay [41-51], the EEA application [52-58], and family ties [60], and then determined that they had an economic motive for wishing to stay here and appear to have been sending money to family members in Sri Lanka which is the real motive for the asylum claim [60]. The Judge then turned to the substantive claim [61] and concentrated on the medical evidence [66-90], family support [91], the timing of the marriage [92], and her passport [93] before making findings on the claim to have been detained and raped without actually analysing the evidence in relation to that [95].

Respondent’s position

6. Mr Javis relied on the rule 24 notice (20 February 2017) which, in essence, asserted that the Judge directed herself appropriately, correctly applied GJ, and gave extensive and cogent reasons for finding the Appellants did not come within the relevant risk categories.

7. He added orally that the Judge gave a thorough consideration to the evidence. The order of the findings was not problematic as there is no forensic straitjacket. The Judge was not putting the cart before the horse. Having already noted the medical evidence [43], she did not engage with it as an afterthought. There was no obligation to look at alternative reasons for scarring. The Judge properly applied the relevant guidance from the higher courts. Even if the Judge had erred, the error was not material as the was no challenge to the finding that the first Appellant did not fall within the risk categories identified in GJ.

Discussion

8. The structure of the judgement was correctly identified by Mr Mannan which I will not simply repeat. It is not necessary for me to quote from the judgement or indeed refer to the authorities provided as the law is not in issue.

9. It is clear from reading the judgement that the Judge determines what she believes the real motive for the asylum claim was [60] and then turned to the substantive claim [61]. That is what the Judge said she did I have no reason to doubt it. That is not a forensic straitjacket but a structural deficiency, as, in order to determine what the real motive for the asylum claim was, the Judge had to consider the claim before making that decision. I am satisfied that this amounts to a material error of law.

10. I am satisfied that there was also a material error for the Judge to make the finding as to the reason for claiming asylum before having considered the medical evidence. That is particular so because Dr Goldberg had appropriately considered other possible causes of the scars and ruled out self infliction [88]. The emphasis on immigration history was not an adequate explanation for rejecting a properly given medical opinion [89]. In addition, it is not sustainable to find that the medical report is based on the Appellant’s account as that does not reflect the fact that Dr Goldberg saw the Appellant on 3 occasions and formulated her view on the scars which she saw and the mental health issues she had expertise in diagnosing [66].

11. In those circumstances, I am satisfied that GJ was not appropriately applied as the factual matrix for that assessment had not been carried out within a lawful framework of whether it was reasonably likely she had been detained and tortured after the ceasefire in April 2009. I am satisfied that a Judge may take a different view of the risk to the Appellant in accordance with GJ and that accordingly this was a further material error of law.

Conclusion on error of law

12. I am satisfied that the Judge made the material errors of law as identified above.

13. Both representatives agreed that if I found as such it was appropriate for me to remit the matter to the First-tier Tribunal for a de novo hearing.

Decision:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

The matter shall be remitted to the First-tier Tribunal, not before Judge Owens, with a time estimate of 3 hours.

Signed:
Deputy Upper Tribunal Judge Saffer
20 March 2017