Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04540/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 March 2017
On 30 March 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

mrs SY
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss S Haji, Counsel
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND DIRECTIONS

1. The appellant, a national of Pakistan, challenges a decision of First-tier Tribunal (FtT) Judge Graham sent on 19 October 2016 dismissing her appeal against a decision made by the respondent on 21 April 2016 refusing to grant asylum. The basis of the appellant’s claim was that she had been disowned by her own family because she refused to enter into a forced marriage and had then suffered abuse at the hands of her in-laws, as well as from her husband when she came to the UK.

2. The main plank of the appellant’s challenge is to the judge’s adverse credibility findings. I consider the points made regarding the judge’s approach to the assessment of credibility telling. The great majority of the points made by the judge relied on a lack of plausibility in the appellant’s evidence. The judge’s reasoning when making these points essentially relies her account being considered to run counter to known facts. Yet on analysis those known facts were no more than assumptions based on western cultural norms. Certainly there is no indication that the judge considered the appellant’s and her families’ behaviour in the context of Pakistan cultural norms nor any indication that these assumptions were grounded in background country information (what is sometimes called ‘external consistency’). Of particular note in this regard are paragraphs 38, 39 and 40.

3. It is also unclear that the judge considered the evidence relating to the appellant’s injuries. Although stating that he did not accept that this evidence established that she had suffered physical abuse at the hands of her in-laws, the judge did state at paragraph 42 that they “could have been caused by the appellant’s husband [in the UK]”. Yet if they were caused by her husband, that lent support to at least one aspect of her account regarding her husband and his family’s ill treatment of her.

4. Another point to which the judge attached significant weight concerned whether the appellant would have failed to inform her husband, when he was in the UK, of the ill-treatment meted out to her by her in-laws. The judge stated at paragraph 41 that he was satisfied the couple’s relationship had always been conducted by mobile phone “and therefore it would have become obvious to [her husband] very quickly” that something was up. I cannot be satisfied that such a finding had regard to the appellant’s interview answers about this matter (Qs 104, 114) or her written statement which both spoke of her in-laws vetting her communication.

5. As regards the appellant’s husband, there is also a discernible mismatch between the fact that the respondent had accepted in her refusal letter that the relationship between the two of them was genuine (paragraph 19 of refusal letter of 21 April 2016) and the judge’s decision, without offering any explanation, to take a different view.

6. I also find problematic the judge’s treatment of the appellant’s claim to suffer from depression and suicidal ideation. At paragraph 50 the judge appears to have rejected this claim because there was no medical report from a medical expert and because she was not currently undertaking counselling or taking any medication for depression. Whilst these observations were capable of justifying a conclusion that she did not suffer from depression, they did not explain why the judge attached no weight to the January 2016 letters from Solihull Mental Health NHS or the September 2016 letter from the Bethel Doula Service or the appellant’s own evidence about depression and suicidal ideation.

7. The judge’s dismissive approach to the medical evidence had a further dimension. The medical evidence regarding her depression had a potential impact on the assessment of her credibility. Under the Joint Presidential Guidance Note 2010 on Children and Vulnerable and Sensitive Witnesses, the judge should have conducted the hearing on the assumption that the appellant was or might be a vulnerable witness and should have noted that allowances had or might have to be made when assessing what could be expected from her in giving evidence. Yet the judge made no reference to this matter.

8. The second main point raised in the grounds is that the judge failed to address the situation of the children or their best interests. I find that that point too is a valid one. Notwithstanding that Article 8 was raised in the original grounds of appeal, the judge did not deal with Article 8 or the circumstances of the children at all.

9. In short I am satisfied that the FtT erred in law and that his decision should be set aside. No findings of fact made by the judge can be preserved.

10. I remit the case to the FtT to be heard de novo by a judge other than Judge Keane.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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: 28 March 2017

Dr H H Storey
Judge of the Upper Tribunal