Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02769/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 October 2016
On 16 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE LATTER

Between

RR
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Walker, Counsel, instructed by Krisinth Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the appellant against a decision of the First-tier Tribunal dismissing his appeal against the respondent's decision made on 6 March 2016 refusing his application for asylum.

Background
2. The appellant is a citizen of Sri Lanka born on 9 June 1992. He claims to have entered the UK on 20 October 2015 and he claimed asylum on 17 November 2015. His application was refused for the reasons set out in the detailed reasons for refusal annexed to the decision letter of 6 March 2016. It was the appellant's claim that his father had been a member of the LTTE and at school he had become involved in publicly speaking out against the army and was praised by LTTE members. In 2006 he agreed to collect information for the LTTE and he was detained in army camps in 2007, 2008 and 2010 and during his detention he was beaten and tortured. He was able to escape from the camp in 2010 after his uncle paid a guard to let him out and following his escape, he fled to Senegal where he stayed for four years.
3. He was returned to Sri Lanka in 2014 after being deported from an unknown country. He was arrested and detained on arrival at the airport. He was able to obtain his release with the assistance of an agent who also helped him leave Sri Lanka in March 2015, returning to Senegal for five months before coming to the UK in October 2015. However, whilst the respondent accepted that the appellant was a citizen of Sri Lanka, she did not accept that he someone of any interest to the authorities due to his involvement with the LTTE. It was her view that he would not be regarded as having any significant current role in relation to Tamil separatism within the diaspora or the renewal of hostilities in Sri Lanka. He did not fit into any of the risk categories identified by the Upper Tribunal in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 319 (IAC).
The Hearing before the First-tier Tribunal
4. At the hearing before the First-tier Tribunal an application was made for an adjournment to enable the appellant to obtain a full psychiatric assessment. The application as put to the judge was based substantially on the fact that his counsel, Ms Walker, had met the appellant approximately two weeks previously at chambers and believed that he had mental health issues. She accepted that no formal application had been made for an adjournment at that stage nor had any efforts been made to seek a psychological assessment [23]. The application was opposed by the presenting officer on the basis that more than sufficient time had been available for the production of a psychiatric report.
5. The judge said that he was not prepared to adjourn the proceedings having regard to the overriding obligation to ensure a timely and fair disposal of the appeal. He said that he had regard to the principles set out in the Tribunal Procedure (First-tier Tribunal) (immigration and Asylum Chamber) Rules 2014 and the Upper Tribunal decision in Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC). He indicated that he believed he was able to consider the appeal and the appellant's oral evidence on a fair and balanced basis. The appellant could give oral evidence and would be assisted by counsel and there had been a more than adequate opportunity to seek a psychiatric assessment, particularly as the conference with counsel had been two weeks before the hearing and no issue had been raised until the date of the hearing.
6. The hearing therefore proceeded and the judge heard oral evidence from the appellant. He also had a medical report from Dr Andres Martin dated 17 July 2016. This report identified scarring on the appellant which Dr Martin described as consistent with a deliberate injury as described by the appellant. He discounted alternative causes and excluded self-inflicted injury which he believed to be very unlikely.
7. The judge accepted that there was credible evidence that the appellant had been detained by the Sri Lankan authorities in the past and had been ill-treated as identified in the unchallenged medical evidence from Dr Martin. However, whilst accepting that evidence, the judge said that he could not be satisfied that the appellant had given reliable and accurate evidence as to precisely when those detentions occurred. He had been inconsistent and unsure as to the occasions on which he was detained and ill-treated and in cross-examination had accepted that he was confused and unsure about the details of when they occurred. By way of example, the judge referred to the report of Dr Martin setting out the appellant's history at 3.34, that he was burnt with iron rods in 2010 but the appellant claimed that these injuries occurred in 2014. There were other contradictions between the appellant's evidence and the account set out in the medical report and the judge found that this conflicting evidence suggested that the appellant could not say with confidence or consistency when and for how long he had been detained and ill-treated.
8. The judge did not accept the appellant's claim that he was deported from an unknown country after his arrival in Senegal, that the Sri Lankan authorities had visited his family home looking for him after his escape from detention or that they had detained his uncle. He also noted that the appellant accepted that he had never attended any demonstrations in the UK and there was no evidence that he had taken any action to work on behalf of the Sri Lankan diaspora seeking to pursue Tamil separatism or to undermine the unitary state of Sri Lanka. He did not accept that the appellant was likely to appear on any stop list or watch list nor was he likely to be perceived as a threat to the integrity of Sri Lanka. For these reasons the appeal was dismissed.
The Grounds and Submissions
9. In the grounds it is argued that the decision to refuse the application for an adjournment was unfair in the light of the concerns raised about the appellant's mental health, particularly as the judge subsequently rejected the appellant's evidence in the light of discrepancies and inconsistencies when there had been no opportunity to provide psychiatric evidence which would assist in assessing whether they arose from a lack of credibility, mental illness or the appellant's status as a vulnerable witness. The grounds then challenge the judge's findings rejecting the appellant's account of events when he was detained in 2014, his conclusions drawn from the fact that the appellant's evidence was inconsistent at points and his rejection of the appellant's account that the authorities had visited his family home.
10. Ms Walker adopted these grounds in her submissions. Whilst accepting that no application had been made for an adjournment until the date of hearing, she submitted that the judge had failed to take into account the fact that there was evidence in the appellant's bundle that his GP had referred him to the West London Mental Health Trust, which had agreed to offer him an assessment for cognitive behaviour therapy. The judge had also failed, so she argued, to deal with the issue of whether the appellant was a vulnerable person, an issue raised in her skeleton argument before the First-tier Tribunal at paras 3 - 6. She submitted that the judge had relied heavily on discrepancies in the appellant's evidence when reaching his findings and conclusions but had failed to consider the reasons for them.
11. Mr Walker accepted that there was evidence before the judge, which would have justified an adjournment being granted although it was perhaps surprising that a psychological assessment had not been applied for or produced earlier. A report from a psychiatrist might in the circumstances of this case have cast some light on how the discrepancies in the evidence should be assessed. He did not seek to make any further submissions to resist the appeal.
Assessment of whether the First-tier Tribunal erred in Law
12. In Nwaigwe, the President adopted and affirmed the test set out by the Court of Appeal in SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 that when considering whether an immigration judge ought to have granted an adjournment, the test was not irrationality or whether the decision was properly open to him but the test and sole test was whether it was unfair. The President said that he was conscious that in the typical case the judge would have invested much time and effort in preparation and was understandably anxious to complete the day's list of cases for hearing and may well feel frustrated by the (usually) unexpected advent of an adjournment request. Moreover, Tribunals must consistently give effect to the overriding objective but, notwithstanding, sensations of frustration and inconvenience, no matter how legitimate, must always yield to the parties' right to a fair hearing.
13. I was referred to the letter from the West London Mental Health Trust at page 44 of the appellant's bundle. This letter is dated 11 February 2016. I also note that the grounds of appeal to the First-tier Tribunal were accompanied by a letter from the appellant referring not only to his intention to produce a report from Dr Martin but also stating that he had psychiatric issues and would endeavour to obtain a psychiatric report in due course. There was a pre-hearing review on 10 August 2016. The notice was sent to the appellant, as it appears that he was not represented at that stage and it is not clear whether in fact he returned the reply notice. In any event, nothing further appears to have been done to indicate to the Tribunal that the appellant wished to rely on psychiatric evidence. The need or possible need for such evidence, however, became apparent to counsel when she had a conference with the appellant about two weeks before the date of hearing and in her skeleton argument before the First-tier Tribunal she set out her submissions that the appellant should be treated as a vulnerable witness who suffered from insomnia and anxiety and that it would be unreasonable to attach significant weight to any potential inconsistencies in his evidence.
14. I must take into account the fact that the judge accepted that the appellant had scarring as set out in Dr Martin's report and that there was credible evidence that he had been detained and ill-treated in the past resulting in physical injuries. Dr Martin noted the appellant's account that he was burnt during his detentions in 2010 and 2014 on his upper arms with hot metal rods and it was his opinion that the scars were typical of unwillingly and deliberately caused injuries. He ruled out an accidental injury caused by pressing against heated metal rails such as a radiator or during professional, sporting or military training as impossible as the duration of exposure with the source of injury necessary to produce the type of deep burn was significantly longer than the reflex withdrawal time needed to remove the affected part of the body.
15. The judge rejected the account given by the appellant on the basis that his evidence was vague and unconvincing and that he was confused and unsure about the details of when the events he sought to describe occurred. There is nothing to indicate in the judge's decision that he took into account the submissions that the appellant was vulnerable and that an allowance should be made for inconsistencies. There is force in Ms Walker's submission that psychiatric evidence might have provided an explanation for contradictions and discrepancies in the appellant's evidence arising from his mental and psychiatric health rather than simply indicating a lack of credibility.
16. I accept that the judge was fully entitled to comment that there had been ample opportunity to obtain a psychiatric report not least in the light of the letter dated 11 February 2016 from the West London Mental Health Trust but, nonetheless, in the light of the other factors I have identified, I am satisfied that the effect of refusing the adjournment has been to deprive the appellant of an opportunity of producing psychiatric evidence which could have a material bearing on the assessment of his evidence and, in his particular circumstances, this has caused unfairness. I am satisfied that the First-tier Tribunal erred in law by failing to grant the adjournment sought.
17. Both representatives accepted that in these circumstances the proper course would be for the appeal to be remitted to the First-tier Tribunal for a full rehearing.

Decision
18. The First-tier Tribunal erred in law and the decision is set aside. The appeal is remitted to the First-tier Tribunal for reconsideration by way of a full rehearing before a different judge.
19. The First-tier Tribunal decision states that no anonymity order was made but an anonymity direction was made at the pre-hearing review on 10 August 2016. There is nothing to indicate that the direction has been varied and I remind the parties that an order has been made under Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and, assuming that the direction has not been varied or discharged, of the possible consequences of failing to comply with it.

Signed H J E Latter Date: 7 November 2016

Deputy Upper Tribunal Judge Latter