Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02342/2015
PA/02343/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 17 November 2016
On 22nd November 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

DM
SK
(ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Mannan, Counsel, instructed by Linga & Co
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal against the decision of Judge of the First-tier Tribunal Row, promulgated on 14 July 2016, in which he dismissed the asylum appeal brought by the 1st Appellant (the 2nd Appellant, the wife of the 1st Appellant, being dependent on his claim) against the Respondent's decision of 20 October 2015 to refuse his protection claim.
Background
2. The Appellants are both nationals of Sri Lanka. The 1st Appellant (hereinafter referred to as 'the Appellant') was born in August 1976. He arrived in the UK on 22 April 2010 with entry clearance as a Tier 4 student which, according to his evidence in his asylum interview, was valid until 2013. The Appellant initially stated in his asylum interview that he was given further leave to remain until January 2015, presumably in the same category. In his decision however the judge states that the Appellant's leave was curtailed in 2013 because he failed to comply with the terms of his leave to remain [14]. In so stating the judge is likely to have relied on the Reasons For Refusal Letter which does state that the Appellant's leave was curtailed on non-compliance grounds in 2013. The Respondent noted that the Appellant travelled to Dubai for 2 weeks in 2013, and that he returned to Sri Lanka on 28 December 2014 before making his way back to the UK.
3. On 13 April 2015 the Appellant claimed asylum. His claim was premised on a political opinion he believed had been imputed to him by the Sri Lankan authorities. The Appellant is of Sinhalese ethnicity. He was never a member of the LTTE or any political organisation. He was employed as a printer/manager. Whilst in Sri Lanka he allowed some Tamils to lodge in his house. Two of the Tamils were said to be senior members of the LTTE who stayed with him for a month. The Appellant maintained that he was detained by the Sri Lankan authorities between December 2009 and February 2010 on suspicion of assisting the LTTE. During this detention he claims to have been assaulted with sticks and belts. His father secured his release by paying a bribe.
4. The Appellant then left Sri Lanka using his own passport and came to the UK. The Appellants did not study in the UK. The Appellant claimed to have returned to Sri Lanka in order to reapply for a student Visa. On his return to Sri Lanka in December 2014 the Appellant claims he was arrested at the airport on suspicion of helping the LTTE. During this detention he was struck with a heated rod repeatedly over his back and shoulders. His father again secured his release by paying a bribe. The Appellant left Sri Lanka using a false passport and identity and returned to the UK via Dubai and France.
5. Whilst noting that the Appellant's claim was internally consistent the Respondent found it was not corroborated by external evidence. The Respondent noted that it was not until April 2015, some 5 years after he arrived in the UK, that the Appellant claimed asylum. The Respondent drew an adverse inference based on this delay, and found that the Appellant's general credibility was damaged under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The Respondent did not consequently accept the Appellant's claim to have been detained and ill-treated.
Decision of the First-tier Judge
6. The Judge did not find the Appellant credible. The judge noted the Appellant's immigration history, including the use of deception to enter the UK and the Appellant's delay in claiming asylum. The judge relied on internal discrepancies in the Appellant's account, including his claim in oral evidence that he was shown photographs of him attending a demonstration in the UK when this had never been mentioned before [25]. The judge relied on a further inconsistency in relation to the Appellant's location when he was first detained by the Sri Lankan authorities in 2009 [28]. The judge did not accept the Appellant's claim that he was able to leave the airport in Sri Lanka either with his own passport in 2010 or with a false passport in 2014 [26] & [27]. The judge did not find it plausible that the LTTE would choose the Appellant to accommodate two high-profile members given that he was Sinhalese [29]. The judge held against the Appellant the absence of any statement from his father, who was residing in Sri Lanka [30]. The judge noted there was little to suggest the Appellant had been actively political in the UK, other than his attendance at a few demonstrations.
7. At [33] to [43] the judge dealt with a medico-legal report prepared by Dr John McNulty, dated 20 May 2016, which assessed the Appellant's mental health and the scarring on his back and shoulders. The judge found there were certain deficiencies in the medico-legal report such as the failure to obtain and consider the Appellant's medical records, and the failure by Dr McNulty to consider other possible causes of the scarring. The judge found that Dr McNulty did not differentiate between the different types of scar found on the Appellant's body and that this was inconsistent with the case of KV (scarring-medical evidence) Sri Lanka [2014] UKUT 00230 (IAC).
8. At [41] the judge stated,
"I am a [sic] not qualified to comment upon the cause or nature of any scar but looking at the photographs at pages 24-26 it would appear that the scars are precisely delineated. They only occur in one area of the Appellant's body, his back. The Appellant does not claim that he was unconscious during the assaults. Those scars resulting from wounds inflicted upon a conscious person might have been expected to be blurred as that person would move around. If the Appellant was moving around wounds on another parts [sic] of his body might be expected. Instead there is a sequence of scars all in one place on the body. Dr McNulty does not deal with these matters. The above country guidance case [KV] suggests that he should have done."
9. And at [42] the judge stated,
"For these reasons whilst I accept that Dr McNulty found and recorded the scarring described I do not accept his opinion that they are highly consistent with the assault alleged. There are other obvious ways in which the scars could have been applied to the Appellant's back which did not involve arrest and torture by the Sri Lankan authorities. Dr McNulty did not deal with these."
10. The judge then noted the PTSD symptoms found by Dr McNulty and his diagnosis. The judge noted that the expert was not in a position to comment upon the origin of the symptoms, and noted that the population of Sri Lanka had lived through the closing stages of a brutal civil war in which government troops fought their way through civilian areas in the north of the country. The judge stated that atrocities were committed by both sides in the conflict and it was not difficult to imagine other causes of trauma to a Sri Lankan man who was in the country when this occurred.
11. The judge was not satisfied the Appellant would be targeted for persecution if removed to Sri Lanka and refused his protection claim, his claim under Article 3 and Article 8 ECHR, and his Humanitarian Protection claim.
The grant of permission
12. Judge of the First-tier Tribunal Fisher stated, in granting permission,
"The lengthy ground seeking permission raise 5 issues. Firstly, they assert that the judge's adverse findings over the Appellant's ability to leave the country with his own, or a false, passport, were contrary to the country guidance. Secondly, it is said that there was irrationality in the judge's conclusion that a Sinhalese man would have been chosen to harbour two high-profile members of the LTTE. The grounds go on to claim that the judge's conclusion on the lack of documentary evidence was irrational. The remaining grounds relate to the medical evidence and the judge's failure to treat the Appellant as a vulnerable witness as he was suffering from PTSD.
There is merit in grounds 1, 4 and 5. The country guidance does indicate that it is possible for wanted persons to leave Sri Lanka via the airport. In paragraph 41 of his decision, the judge states that he is not qualified to comment upon the cause or nature of scarring, but then goes on to do so. There is merit in the point raised in the grounds concerning his findings on the medical evidence. In paragraph 50, the judge appears to accept that the Appellant was suffering from PTSD, but there was nothing in his decision to indicate that he made any allowance for that fact. In respect of grounds 2 and 3, I would merely observe that the standard for irrationality is high, and that the judge was perfectly entitled to make the point that there was no documentary evidence in circumstances where it might reasonably have been expected."
Submissions of the parties
13. Mr Mannan relied on the grounds upon which permission was granted and expanded those grounds at the hearing. It had been accepted in the Respondent's Rule 24 response that the judge misdirected himself regarding the Appellant's exit on his passport. My attention was drawn to the medico-legal report. At [28] Dr McNulty noted the Appellant's account relating to his alleged assault using a heated rod. It was submitted that Dr McNulty had this in mind in his assessment of the scarring and when he reached his conclusion, at paragraph 44 of the report, that the scarring was highly consistent with the Appellant's account of this assault. My attention was drawn to paragraphs 43 and 45 of the medico-legal report where Dr McNulty had considered alternative causes for other scars. At paragraphs 49 and 57 of the medico-legal report Dr McNulty had considered whether the Appellant had been feigning or exaggerating his symptoms. At paragraph 50 Dr McNulty considered that the discrepancies in the Appellant's account could have resulted from the effect of PTSD on his recollection of events. It was submitted that the failure by the judge to take into account the possible consequences of the Appellant's PTSD, and his status as a vulnerable individual, rendered unsafe the adverse credibility findings based on discrepancies at paragraphs 28 and 25 of the decision.
14. In accordance with the Respondent's Rule 24 response Mr Bramble accepted that the judge misdirected himself in relation to the Appellant's ability to exit on his own or a false passport, but submitted that the error was not material. Mr Bramble pointed to the other adverse credibility findings made by the judge. Mr Bramble accepted that Dr McNulty had, in respect of some of the scarring, considered alternative causes. No attempt however had been made to consider alternative causes for the scarring identified in paragraph 44 of the medico-legal report. KV was an important and relevant case and the judge was entitled to attach limited evidence to the medico-legal report given the absence of any reference to the possibility of Self-Infliction By Proxy (SIBP) as a possible cause of the scars. It was submitted that there were sufficiently strong credibility findings to render the decision sustainable. Mr Bramble recognise that paragraph 43 of the decision could be potentially problematic as the Respondent was not asserting that the Appellant had any involvement in the conflict in Sri Lanka and, given that he was Sinhalese, there was no reason why he would have been involved. It was however submitted that this did not materially undermine the judge's conclusions.
Discussion
15. In her Rule 24 response the Respondent accepted that the judge misdirected himself regarding the Appellant's ability to leave Sri Lanka at the airport using either his own passport or a false passport. The grounds relied on extracts from GJ (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) which indicated that a person's ability to exit the country using their own or a false passport was not necessarily indicative of a lack of state interest (see, for example, paragraphs 146 and 275). To the extent that the judge failed to take account of the evidence given in GJ, and the conclusions reached by that Tribunal, the judge failed to take account of a relevant consideration. The judge's findings in relation to the Appellant's ability to leave via the airport without coming to the adverse attention of the authorities was however just one factor amongst several upon which he relied in concluding that the Appellant was not credible. The Respondent maintains that this error cannot be regarded as material given the other adverse credibility findings independently made by the judge.
16. At [29] of his decision the judge did not find it plausible that, as a Sinhalese man, he would have been chosen to harbour two high-profile LTTE members rather than sympathetic Tamils. The grounds contended that this conclusion was irrational as being harboured by a Sinhalese was less likely to attract suspicion then being harboured by a Tamil. Permission was not however granted on this ground. Whilst I accept the logic supporting this ground, the judge's conclusion was undoubtedly one he was rationally entitled to reach for the reasons given. The grounds further contend that the judge was not entitled to drawn an adverse inference (as he did at [30]) reliant on the absence of a statement from the Appellant's father. Permission was not granted on this ground either. Whilst a judge may well have attached little weight to a statement from the Appellant's father (given that he was not available for cross examination) it cannot be said that this judge acted irrationally in holding against the Appellant the complete absence of any statement from his father or any satisfactory explanation why no statement was available.
17. It is clear from paragraphs 33 to 43 that the judge did give detailed consideration to the medico-legal report. The judge however found there were a number of significant factors that reduced the value of the report [35]. At [36] and [37] the judge noted that the Appellant's medical records did not appear to have been provided to Dr McNulty. The judge noted that the Appellant did have a GP and that he had undergone a hernia operation. I find the judge was entitled to reduce some weight to the medical report in the absence of any evidence that the medical records were provided to Dr McNulty.
18. Although somewhat obliquely, the judge also attached reduced weight to the medico-legal report because Dr McNulty did not consider the possibility that the scarring present on the Appellant's back and shoulders may have been the result of SIBP. In KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00230 (IAC) (at [294]) the Tribunal gave some guidance as to the best practice in respect of preparation of medico-legal reports for use in asylum cases. The Tribunal indicated that doctors should indicate in their assessment that SIBP as a possible cause had been considered even when there were no presenting features to suggest it. Having read the medico-legal report Dr McNulty makes no reference to the possibility of SIBP. I am satisfied that the failure to make any such reference entitled the judge to attach reduced weight to the medico-legal report.
19. I do however have concerns with respect to other aspects of the judge's approach to the medico-legal report. At [41], although stating that he is not qualified to comment upon the nature or cause of any scar, it seems to me that the judge proceeds to do precisely that. The judge notes that the photographs of the scarring showed them to be precisely delineated. Having noted that the Appellant did not claim to have been unconscious during the assaults, the judge states, "?those scars resulting from wounds inflicted upon a conscious person might have been expected to be blurred as that person would move around". The judge then states, "If the Appellant was moving around wounds on another parts [sic] of his body might be expected." In my judgement the judge has engaged in impermissible speculation in relation to the appearance of the scars and their likely causes without having the necessary expert background to entitle him to do so. It is clear from the medico-legal report that Dr McNulty was aware of the circumstances described by the Appellant in which a heated rod was said to have been applied to his body [28]. Having described the various scars, and with reference to the Istanbul Protocol, the expert concludes (at paragraph 44 of the report) that the scars were "highly consistent" with the Appellant's account of being assaulted with a heated rod. Whilst it is ultimately for the judge to accept or reject the Appellant's account, the judge is not permitted, without cogent reasons, to substitute his own view for that of the expert in concluding that, as a result of the appearance of the scars, they were not highly consistent with the assault alleged (as the judge did at [42]).
20. At [42] the judge also states, "There are other obvious ways in which the scars could have been applied to the Appellant's back which did not involve arrest and torture by the Sri Lankan authorities. Dr McNulty did not deal with these." The judge does not however identify what these "other obvious ways" are. Other than having been caused through SIBP, it is not apparent what other obvious ways might have cause the scarring. I further note that Dr McNulty does in fact consider alternative causes for two of the injuries investigated by him (at paragraph's 43 and 45 of his expert report), although no alternative consideration was given to lesions L2 to L16.
21. Although the judge appears to have accepted Dr McNulty's diagnoses of PTSD, it is not apparent that the judge took this diagnosis into account when assessing inconsistencies in the Appellant's account. Dr McNulty (at paragraph 50) did indicate that some discrepancies may have been the result of the effect of PTSD on the Appellant's recollection of events, and that inconsistent recollection of events in successive interviews was recognised as being associated with the condition. At [28] the judge drew an adverse inference in respect of an inconsistency relating to the Appellant's location when first detained in 2009. Although noting the Appellant's explanation, when queried about this discrepancy by Dr McNulty, that he was "stressed at the asylum interview", the judge found this to be a substantial discrepancy. The judge has not however made any reference to the possibility that the Appellant's PTSD may have been a cause of this discrepancy. Whilst the judge may have been ultimately entitled to conclude that this discrepancy could not be attributed to the Appellant's PTSD, his failure to consider the possibility does render unsafe this particular conclusion.
22. The same can be said in respect of a further adverse inference drawn by the judge at [25] where the Appellant mentions being shown photographs during his interrogation of his attendance at a demonstration in the United Kingdom. This had not been mentioned in his asylum interview or in his witness statement. The judge draws an adverse inference based on the lateness of this assertion. No consideration however had been given by the judge to the possibility that the late assertion could have been attributed to the Appellant's PTSD.
23. At [43] the judge, quite properly, stated that Dr McNulty was not in a position to comment upon the origin of those symptoms. The judge then noted that the population of Sri Lanka had lived through the closing stages of a brutal civil war in which government troops fought their way through civilian areas in the north of the country. As atrocities were committed by both sides it was not, according to the judge, difficult to imagine other causes of trauma to a Sri Lankan who was in the country when this occurred. The Appellant did not however hail from the North of Sri Lanka, and he was not Tamil. There was nothing in his background to indicate any involvement in the civil war or its closing stages, a point accepted by Mr Bramble. The judge has proposed that the Appellant's PTSD could be attributed to his presence in the country during the closing stages of the civil war but this hypothesis is not supported by any evidence that was before the judge.
24. For the reasons set out above I am satisfied that the decision is vitiated by a number of legal errors that, when considered cumulatively, are material. In the circumstances, when there have been unsafe findings of fact, it is appropriate to remit the appeal back to the First-tier Tribunal for a fresh hearing, all issues open, before a judge other than judge of the First-tier Tribunal Row.

Decision:
The First-tier Tribunal's decision is unsafe as a result of material errors of law. The matter is remitted back to the First-tier Tribunal for a complete rehearing, before a judge other than judge Row.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellants in this appeal are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Appellants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

21 November 2016
Signed: Date:
Upper Tribunal Judge Blum