Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02058/2015

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 16th February 2017
On 22nd February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

ali ahmed abrahim mahmood hassan
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Ahmad Solicitor instructed by Morden Solicitors LLP
For the Respondent: Mr D Mills, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Gribble made following a hearing at Birmingham on 15th June 2016.
Background
2. The appellant is a citizen of Sudan born on 1st January 1990. He arrived in the UK on 9th July 2015 and claimed asylum. He was refused on 8th October 2015.
The Immigration Judge's Determination
3. The judge recorded that an application for an adjournment of the appeal had been made on 13th June 2016 seeking a further month to obtain medical evidence as, on the preparation of the witness statement on 2nd June 2016, the representative considered that the appellant's answers given in response to the questions put to him were confusing. He thought that the appellant may have memory problems.
4. The application was refused on 13th June 2016 and renewed before the judge.
5. The judge said that the representative reported that the appellant had gone to his GP on 7th June 2016 and had been prescribed medication, with a further appointment on 22nd June 2016. The medication prescribed was Fluozetine 20 mgs, and from his experience as a First-tier Judge in the Social Entitlement Chamber Tribunal, the judge was aware that this was a standard medication prescribed for anxiety and depression and 20 mgs was a starting dose.
6. The judge considered the case of Nwaigwe (adjournment: fairness) [2014] UKUT 00418 in the context of Rule 2 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. He said that he was obliged to deal with the case fairly in ways which were proportionate to the importance of the case, the complexity of the issues, the anticipated costs, the resources of the parties and of the Tribunal. He was to ensure as far as practicable that the parties were able to participate fully in the proceedings.
7. The judge noted that the appellant had instructed solicitors before his asylum interview on 7th September 2015. The case had been listed for hearing in January 2016 and there had therefore been ample time for the representatives to complete their enquiries. The CMR had taken place on the papers on 1st June 2016 and it was clearly stated that no expert or medical evidence was to be called.
8. The judge was not satisfied that there would be any unfairness to the appellant by refusing to adjourn for the GP summary to be provided. The appellant had consulted the GP only very recently and had been prescribed a starting dose of medication for anxiety and depression. The notes would not add anything to the information already available. Furthermore there had been ample time to seek other evidence if it had been warranted.
9. He refused the application, but did however agree to consider the notes if they came in before the decision was promulgated; in the event nothing further was received.
10. The representative told the judge that she had not prepared a witness statement or appellant's bundle. Accordingly, the judge adjourned the case until later in the day to give her as much time as she needed to take instructions and to give advice.
11. The hearing then proceeded and the judge made adverse findings of credibility against the appellant. He found that the evidence was inconsistent, unreliable and utterly lacking in credibility. He gave a number of examples of the discrepancies in the evidence and concluded that the appellant was not a member or a supporter of JEM as claimed. He also found that he had not been arrested and detained and his shop had not been burnt out. He concluded that the claim was thoroughly dishonest and had been fabricated, the appellant having embellished his account as he went along. On that basis he dismissed the appeal.
The Grounds of Application
12. The appellant sought permission to appeal, in very lengthy grounds, firstly on the basis that the judge had acted unfairly in proceeding with the appeal without the medical report and second had erred in his assessment of risk on return.
13. Permission to appeal was granted by Judge Scott-Baker on 27th July 2016. Judge Scott-Baker observed that the denial of the opportunity to produce a medical report may have appeared to the appellant to be blatantly unfair especially as the judge gave medical views himself without reference to medical evidence.
14. On 4th August 2016 the respondent served a reply defending the determination.
Submissions
15. Mr Ahmad accepted that it was correct, when the representatives filled in the CMR form, that the appellant did not appear to have any medical condition and he confirmed that, when the appellant had been seen before June 2015 he had said that he did not have any medical difficulties. It was only when taking the statement on 2nd June and the inconsistencies emerged that the representative became concerned about his mental state.
16. He relied on his grounds and submitted that it was unfair for the judge to have engaged in a detailed analysis of the inconsistencies in the appellant's evidence when he could have provided medical evidence to establish that his condition might have led to lapses of concentration. He asked that the appeal be remitted to the First-tier Tribunal so that detailed medical evidence could be provided.
17. Mr Mills submitted that the judge was clearly aware of the correct test and had properly focused on the issue of fairness to the appellant but submitted that the judge was entitled to take into account the factors outlined in the determination and to conclude that it was right to proceed.
Findings and Conclusions
18. There is no error of law in this determination.
19. The judge plainly had at the forefront of his mind the correct test as set out in Nwaigwe and properly focused his mind on whether there would be a deprivation of the appellant's right to a fair hearing. He considered the nature of the evidence which the appellant sought to adduce and it was open to him to conclude that the GP notes would not add anything to the material already before him.
20. Importantly, he was entitled to take into account the fact that it was only at the very last minute that the appellant had sought to have the appeal adjourned. This is a case which had been listed for six months before it came before the Tribunal. Furthermore there was a CMR hearing when the representatives reported that no medical evidence was to be produced. Mr Ahmad said today that these were the appellant's instructions up until 2nd June. It was clearly in the judge's mind that the appellant was attempting to delay proceedings without proper cause, but he did nevertheless give the appellant's representative an opportunity to take further instructions by putting the matter back to further in the day.
21. Finally, when reaching his overall conclusions on the credibility of the claim the judge took into account the appellant's case that he had memory problems. He accepted that this could be the explanation for the numerous inconsistencies in the evidence but rejected it. He was entitled to be satisfied that the inconsistencies were better explained by the claim being wholly dishonest and the appellant not being able to recall the detail of the lies which had been told. It was open to him to conclude that the explanation for the inconsistencies was not the lapses in memory due to medication or underlying anxiety/depression but as a consequence of the appellant having fabricated his claim.
22. Ground 2 is wholly reliant upon Ground 1 in that it seeks to argue that if the appellant's claim was true then he would be at risk on return, but if the judge was entitled to reach the credibility findings that he did, then Ground 2 falls away.
23. This is a thoughtful, detailed and well-reasoned determination. The grounds disclose no arguable error of law.

Notice of Decision
24. The original judge's decision stands. The appellant's appeal is dismissed.

No anonymity direction is made.

Signed Date 21 February 2017

Deputy Upper Tribunal Judge Taylor