Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal number: PA/02929/2018

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
On 31 January 2019
On 13 February 2019

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

A C A
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr N Robb, of Gray & Co, Solicitors
For the Respondent: Mr A Govan, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Nigeria, born in 1977. She has been in the UK since arriving as a visitor in 2009. She was detained for removal on 14 and sought asylum on 26 July 2014, on the grounds that she would be at risk of persecution in Nigeria as a lesbian.
2. The respondent refused that claim by a decision dated 24 November 2014. FtT Judge Lea dismissed her appeal by a decision promulgated on 23 January 2015, giving various reasons for finding her an unreliable and inconsistent witness, and declining to accept that she is a gay woman.
3. The appellant made a further claim, which the respondent refused by a letter dated 15 February 2018, along these lines:
[10 - 15], Devaseelan applied;
[18 - 31], evidence from a female partner, other supporting witnesses, and LGBT groups considered, but found to disclose inconsistencies, and not to show that the appellant is "a genuine homosexual woman";
claim rejected also in terms of articles 2 and 3 ECHR, family and private life, and exceptional circumstances - evidence of mental health issues short of qualifying for protection.
4. The appellant appealed again to the FtT. Her grounds were brief and generic, referring only to risk on return due to her sexuality.
5. FtT Judge Agnew dismissed the appellant's appeal by a decision promulgated on 11 April 2018. The decision sums up at [91] on page 22:
"The appellant is an intelligent, educated, resourceful woman. I find that she travelled to the UK with the intention of remaining despite obtaining a visa only to visit. She made plans as to how to remain some years after her arrival based on a sham marriage to an EEA national. When that failed, she did nothing else until detained and when about to be removed made a false claim that she was a lesbian."
6. The appellant had been legally represented in the FtT. She applied to the FtT for permission to appeal to the UT on grounds apparently prepared by herself. The FtT refused permission on 27 April 2018, because the grounds were only re-argument and an unfounded attempt to introduce new evidence.
7. On 23 May 2018, the appellant applied through her current representatives to the UT for permission, on grounds which in summary are as follows:
(1). Failure properly to consider evidence from an art psychotherapist, being a medical professional, on the appellant's mental health condition, and to give adequate reasons for not accepting that assessment.
(2). Failure to consider evidence which supported the conclusions of a psychologist; statements about the appellant's reticence and non-disclosure are quoted.
(3). Failure to consider and give adequate reasons about a volume of email evidence showing the claimed relationship between the appellant and her partner to be genuine.
(4). Above grounds show failure to "give proper reasons".
8. Mr Robb's submitted further to the grounds, thus:
(1). The letter from the art psychotherapist, of Glasgow Psychological Trauma Service, dated 30 October 2017, was in the respondent's bundle at item F. This confirmed the appellant's diagnosis of complex PTSD, which had not been challenged by the respondent. The judge went wrong in her understanding of that evidence at paragraphs 19, 87, and 88, by referring to a "claimed diagnosis" and finding that the appellant failed to establish that it could be relied upon. It was a material error to give no adequate reasons for not accepting a professional diagnosis.
(2). The judge at paragraphs 23 - 33 selected negative elements from statements supplied for the appellant and overlooked positive elements which corroborated her as to her mental health and her sexuality. Taken along with ground (1), this showed that the judge had substituted her own views and effectively "trumped" professional opinion, for no good reason.
(3). The judge misinterpreted the email exchanges between the appellant and her partner. The examples cited in the ground showed that the relationship went two ways, and was not all from the appellant's side.
(4). The case should be remitted to the FtT for a fresh hearing.
9. Mr Govan submitted as follows. The appellant had been found following hearings in two appeals to be an unreliable witness. The medical evidence did not include the primary diagnosis, but only a second-hand record of a diagnosis. The judge was not bound by anything in the medical evidence. It was for her to consider all the evidence in the round, which she did. There were multiple reasons to find the appellant unreliable. The letter from the art psychotherapist was written on the assumption of allegations by the appellant which were not, for good reasons, similarly accepted by the FtT. There was strong support for the view that the appellant presented very differently to medical professionals than when giving evidence. The judge did not have to mention every item in evidence. All the main aspects were plainly considered. The judge was entitled to find that the email evidence was at best ambiguous about any meaningful relationship, particularly in the context that the alleged partner had not attended to give oral evidence.
10. Having considered the decision, grounds, submissions, and the evidence to which reference was made, I find that the appellant has not shown that the decision of the FtT should be set aside for having involved the making of any error on a point of law.
11. The appellant's grounds take her best points from the FtT, but that is insistence and selective disagreement, rather than a demonstration of error in the FtT's resolution of the case.
12. The submissions for the respondent, as summarised above, are well founded.
13. Although the appellant did not produce her primary diagnosis, the letter founded upon was, on its face, adequate confirmation of it. The credibility of the underlying assertions, however, was for the judge to decide, taking professional opinion into account with the rest of the evidence.
14. Even if the diagnosis was to be supported, that was not a matter which, without more, gave the appellant a right to remain in the UK.
15. The FtT's finding at 88 is carefully worded, "? the appellant has failed to establish that the diagnosis of complex PTSD for the reasons she claims can be relied upon or that she is a vulnerable witness". That does not seek to usurp the functions of any medical expert.
16. The email exchanges are not shown to contain any obviously convincing evidence of the appellant's sexual orientation which the FtT overlooked; and the witness was notably absent.
17. The essential finding is that what the appellant says is not reliable. That is reached for a host of unchallenged (and apparently unimpeachable) reasons set out in a detailed and plainly careful decision. The appellant advances no analysis by which that decision, read fairly and as a whole, might be held to be less than legally adequate.
18. The decision of the First-tier Tribunal shall stand.
19. The anonymity order made by the UT on 13 December 2018 is maintained.

Dated 1 February 2019
UT Judge Macleman