Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02664/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 12 December 2017
On 22 January 2018

Before

UPPER TRIBUNAL JUDGE KING TD

Between

[a y]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: The appellant appeared in person
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS

1. On 29 October 2016 the respondent made a decision refusing the appellant's claim for protection under the Refugee Convention and the European Convention on Human Rights. The appellant is a citizen of Cameroon, born on 15 April 1982.

2. The appellant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Agnew on 20 January 2017. In a determination dated 3 February 2017 the appeal was dismissed.

3. Challenge is made to the decision on the basis that the appellant was a vulnerable appellant, that the Judge failed to treat her or her evidence in that capacity and failed to abide by the Joint Presidential Guidance Note (No. 20) of 2010, Child, vulnerable adult and sensitive appellant guidance applies to the hearing. Further guidance has been given recently by the Court of Appeal.

4. Permission was granted to appeal to the Upper Tribunal against the decision on the basis that it was indeed arguable that the Judge failed to make any clear assessment of the claim that the appellant is a vulnerable witness.

5. Thus the matter comes before me to determine that issue.

6. The appellant attended, unrepresented, with the assistance of an interpreter. Given that the very basis of her appeal is that she is a vulnerable person I was concerned that she should be put in this difficult situation of representing herself when previously she felt unable even to give evidence on her own behalf.

7. It was apparent from my questions to her that she was unclear as to what was to happen. Indeed, even through the good offices of the interpreter, it was often difficult to communicate with her. She indicated that she had been in contact with the British Red Cross for assistance but they could not help her. The solicitors who had previously acted for her were not acting for her anymore. I temporarily adjourned the hearing in order to make enquiries as to whether there would be any representation for her at a later stage. My clerk contacted the British Red Cross caseworker who indicated that the extent of their assistance had been to request the Tribunal to provide an interpreter. The former representatives of the appellant, the Greater Manchester Immigration Aid Unit were contacted. They had come off the record in August 2017 and were no longer acting for her. A list of solicitors who may be willing to act pro bono was provided to the appellant.

8. I indicated to her that I was willing to adjourn the matter for her to seek further assistance. She indicated that she did not want to do that but wanted matters concluded.

9. In the light of the detailed grounds of challenge I invited Mr McVeety, on behalf of the respondent, to make his response. This was all translated to the appellant who indicated that she had nothing further to say. It is indeed unfortunate that a person considered to be vulnerable should be left without further support.

10. The background to her case is set out in detail in the determination and I do not repeat it here. It was her case that she was sexually abused by her aunt whilst living with her, leading to the accusation in 2002 that she was a lesbian. Her uncle discovered herself and her aunt in bed with one another, engaging in sexual activity in 2002. The appellant was banished from the family. She and her aunt remained together until 2009. In 2010 the appellant met [J] in Douala and commenced a sexual relationship with her.

11. In 2014 the appellant was taken with other girls, including [J], to the police station where she was raped as was [J]. She was further raped by boys around her home the same year. She came with [J] to the United Kingdom.

12. A matter of note is that the appellant attended the hearing with a small child but there is little reference in interview, or indeed at the hearing, to her having been pregnant or having given birth to a child.

13. The first difficulty which presented itself at the hearing in the First tier Tribunal was that the appellant's representatives indicated that she was not able to give any evidence on her own behalf and would be relying upon the asylum interview and any statements that had been prepared. Thus, it was unnecessary for the Judge to consider what safeguards should be put in place to enable the appellant to give evidence. It is noteworthy, however as indeed Mr McVeety indicates, that the Judge does not hold the absence of the appellant giving evidence against her and proceeds, in a very detailed and systematic way, to analyse the evidence that is presented and to draw conclusions from it.

14. It is contended that the Judge followed procedures that were unfair. The Judge found a number of inconsistencies and implausibilities in the evidence which were not raised by the respondent at the hearing. It was said that these purported inconsistencies were not put to the appellant's legal representatives. The difficulty with that nature of argument is the practicality of a Judge having to consider the evidence that has been presented and weighing it up. It is to be noted that the decision of the respondent dated 29 October 2015 is a detailed one and highlights a number of inconsistencies in the evidence as presented. Such are set out at paragraphs 39 to 55 of the decision. The Judge has conducted a careful analysis of what evidence was given at what time and has come to particular findings in relation to it. I see nothing unfair as to that approach. The correct burden and standard of proof is set out in the determination at paragraph 13. The Judge is comparing what was said by the appellant in interview with what is said in her statement and relating that to any of the documentation that has been presented.

15. In terms of credibility, it was noted that the appellant claimed to have undergone the second attack of rape in June 2014 but did not leave until May 2015. In terms of the applications which were made for a visa, it was noted that the appellant conceded that false information had been given to obtain them. In the application it was claimed that the appellant had married Mr [N] and that they lived in Waounde. The appellant now claims that the detail of evidence as lodged was false. The respondent did not believe the change of claim and considered that she was indeed married to Mr [N] but had sought to claim that she was a lesbian in order to formulate a claim for asylum. The Judge came to the conclusion that there were grave concerns as to the appellant's credibility. It was difficult to understand how any potential vulnerability of the appellant would undermine that particular conclusion.

16. It is said that the vulnerability of the appellant arises not only by her claimed experiences at the hands of the authorities, but also the medical evidence as to her mental and physical state which was provided through the report of Dr Bonnet dated 29 September 2016. The doctor noted scarring in the vaginal area and found it to be consistent with the appellant's account of ill-treatment. There were more marks on the appellant's body than would be normal for a woman of her apparent age and background history. Although the appellant claimed to have had a "torn vagina", that was not in the event examined. The Judge has devoted considerable time to the evidence of Dr Bonnet, as can be seen from paragraphs 15 to 21 of the determination, in particular.

17. The Judge did note, however, that certain accounts as given to Dr Bonnet differed from accounts made elsewhere. For example, it was reported by Dr Bonnet that the appellant, when speaking of her rape at the hands of the authorities, recounted that her clothes were ripped off her whereas in interview she indicated that they had removed their clothes in case matters became worse. The Judge was also concerned as to the way in which the ill-treatment had been described, as can be set out in paragraphs 22 to 24 of the determination. The Judge set out in paragraphs 25 onwards of the determination a number of concerns as to inconsistencies or implausibilities, discrepancies in evidence between the interview and the medical report or between the interview and the appellant's other statements.

18. There were a number of matters which the Judge indicated were raised by the respondent in the decision that had not been addressed satisfactorily by the appellant.

19. The suggestion, which seems to be made in the grounds, is that there should have been greater allowance made by the Judge for such discrepancies in the light of the mental state of the appellant. In that connection I note at paragraph 84 the Judge states in terms:

"I have carefully considered the comments and opinion of Dr Bonnet in her report. I have borne in mind the effect trauma can have on memory. However, on considering all the evidence in the round, for the reasons set out above and whilst bearing in mind the low standard of proof, the cumulative effect of the issues in the evidence which I have raised are such that in my view no credence can be given to the appellant's account. The appellant has failed to establish that firstly the events she purported to describe did, in fact, occur in Cameroon and secondly, that she is or was perceived to be a lesbian."

20. It seems to me that the Judge has properly borne in mind the potential vulnerability of the appellant and has discounted credibility for the very clear reasons set out in the determination. Just because someone may be vulnerable does not necessarily mean that evidence should be considered as credible. Allowance clearly must be made for issues such as memory, embarrassment, difficulty in expression but none of those matters would seem to rise in this case, given that the appellant gave no evidence other than in the statements and interview. It is clear from the reasoning of the Judge that poor memory and lack of past recall is not of itself an answer to the discrepancies as identified in this case.

21. The appellant clearly admitted deliberately using deception to come to the United Kingdom. The Judge simply did not believe the account which was given for the reasons as set out.

22. In the circumstances, although the appellant may be a person considered to be vulnerable within the guidelines, I find no procedural unfairness in the determination of her claim or any lack of recognition of that vulnerability in the assessment of the claim.

23. In all the circumstances the appeal before the Upper Tribunal is dismissed.

Notice of Decision

24. The decision of the First-tier Tribunal shall stand, namely that the appellant's appeal is dismissed on asylum grounds; humanitarian protection grounds; under the Immigration Rules and in respect of human rights.

No anonymity direction is made.

Signed Date 19 January 2018

Upper Tribunal Judge King TD