Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03085/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 January 2017
On 2 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

L m
(anonymity direction made)
Appellant
and

Secretary of state for the home department
Respondent

Representation:
For the Appellant: Ms E Sanders, Counsel instructed by JD Spicer Zeb Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals from the decision of the First-tier Tribunal (Judge Amin sitting at Hatton Cross on 6 September 2016) dismissing her appeal against the decision of the Secretary of State to refuse to recognise her as a refugee on account of her being a claimed victim of trafficking or a potential target for an "honour killing" for having a child outside marriage and not obeying her father with regard to his choice of whom she should marry. The First-tier Tribunal made an anonymity direction in the appellant's favour, and I consider that it is appropriate that the appellant should continue to be accorded anonymity for these proceedings in the Upper Tribunal.
The Grounds of Appeal to the Upper Tribunal
2. The appellant's grounds of appeal were settled by Ben Bundock, Counsel, who had represented her at the hearing before Judge Amin. Ground 1 was that the Judge had failed to take into account material evidence when coming to adverse conclusions on the appellant's credibility. In particular, the Judge had failed to have regard to the fact that the appellant had been diagnosed with PTSD. The diagnosis was highly material (a) in appraising the appellant's evidence in terms of demeanour and consistency (e.g. in considering the significance to be attached to the fact that the appellant had not given much "sensory detail" about her experiences in coerced prostitution); and (b) in being suggestive in itself of the appellant having genuinely experienced the trauma which she described.
The Reasons for the Initial Refusal of Permission
3. On 31 October 2016 Judge Davidge gave detailed reasons for refusing the appellant permission to appeal.
4. The difficulty about Ground 1 was that it was quite clear that the Judge was fully aware of the diagnosis, making adjustments to the hearing so that it took place in camera, taking great care to explain in detail the procedure to be adopted, offering adequate breaks and ensuring that control was exercised so that the questions asked were put in a sensitive manner and confined to the issues in the appeal.
5. The difficulties surrounding the appellant's account did not arise from confusion or late additions to her evidence which were explained by a diagnosis of PTSD.
6. Further evidence of the Judge's awareness of the appellant's position was to be found at paragraph [70] where the Judge referred to the medical facilities available in Albania, and her acknowledgement at paragraph [71] that the appellant was suffering from depression and waiting for counselling.
7. While the grounds asserted that the absence of sensory detail in her account of being trafficked might be explained by the diagnosis of PTSD, this point did not bear scrutiny, given that the Victims of Trafficking Guidance for Competent Authorities stated that sensory - rather than specific - detail should be expected to be offered. In the event, the Judge was merely noting the absence of such evidence. The Judge did not hang any adverse credibility findings upon this observation.
The Reasons for the Eventual Grant of Permission to Appeal
8. On a renewed application for permission to the Upper Tribunal, Upper Tribunal Judge Allen granted permission on 16 December 2016 for the following reasons:
It is arguable that the Judge erred in failing to take account of the appellant's diagnosis of post-traumatic stress disorder in evaluating her credibility. The other matters raised in the grounds may also be argued.
Discussion
9. There is some force in the observations made by Judge Davidge when refusing permission to appeal on, inter alia, Ground 1. The Judge was confronted with only a bare diagnosis of PTSD made by Barnet, Enfield & Haringay Mental Health NHS Trust. There was no psychiatric report before the Judge explaining how this diagnosis had been arrived at, nor what the implications were in terms of its impact upon the appellant's ability to recall details, such as the names of any of the hotels to which she said she had been taken by the trafficking gang after being kidnapped in Tirana.
10. However, in his skeleton argument which he presented at the hearing before Judge Amin, Mr Bundock cited at paragraph 27 the following extract from page 48 of the Respondent's "Victims of Modern Slavery - Competent Authority Guidance":
Victims' early accounts may also be affected by the impact of trauma. In particular victims may experience post-traumatic stress disorder, which can result in symptoms of:
- difficulties in recalling details or entire episodes
- difficulty concentrating.
11. The Judge plunged into her adverse credibility findings without first assessing the probative value of the PTSD diagnosis or its relevance to the assessment of the appellant's general credibility. She did not ask herself whether the appellant's symptoms of PTSD were corroborative of her account of the traumatic events which she recounted; or whether any asserted discrepancies, omissions or inconsistencies in her account were reasonably attributable to the effects of PTSD.
12. The Judge quoted a different extract from the same guidance. The guidance stated that the level of detail with which a potential victim presented his/her claim was a factor when the Competent Authority assessed credibility:
It is reasonable to assume that a victim giving an account of their human trafficking or modern slavery experience would be more expressive and more likely to include sensory details "e.g. what they saw, heard, felt or thought about an event".
13. It was open to the Judge to find that the names of the hotels constituted "sensory" details - as the appellant would in her view have seen the names - and that therefore her ignorance on this topic supported a finding that the appellant had only provided the bare minimum of detail on the "sensory aspects" of her claim. While this was prima facie damaging to her credibility, the Judge did not engage with the extract from the guidance relied on by appellant's Counsel. She did not explain how the extract quoted by her could be reconciled with the parallel proposition that PTSD victims might have difficulty in recalling details or entire episodes. On the face of it, a difficulty in recalling details would include a difficulty in recalling sensory details. Alternatively, if this is not the case, the Judge needed to explain why.
14. For the above reasons, the adverse credibility findings made by the First-tier Tribunal are not safe and the decision is vitiated by a material error of law, such that it must be set aside and remade. As was agreed by the legal representatives at the hearing before me, this is an appropriate case for remittal to the First-tier Tribunal for a de novo hearing.

Conclusion

The decision of the First-tier Tribunal contained an error of law, such that it must be set aside and remade.

Directions

(1) This appeal is remitted to the First-tier Tribunal at Hatton Cross for a de novo hearing before any Judge apart from Judge Amin.

(2) None of the findings of fact made by the previous Tribunal shall be preserved.

(3) The time estimate is three hours.

Direction Regarding Anonymity - rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Judge Monson
Deputy Upper Tribunal Judge