Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04965/2017

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 April 2018

On 30 April 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

O O A
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Akinbolu, Counsel
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

DECISION AND REASONS ON ERROR OF LAW
1. The appellant has a chequered immigration history. She last entered the UK at some point after 12 November 2011. Her leave to enter as a visitor expired in May 2012 and she overstayed. She then submitted a series of applications for an EEA residence card on the basis she was in a durable relationship with [PS], Hungarian national. At her appeal, heard on 24 February 2015, she told the judge that she was a widow when she came to the UK and she claimed to have married [PS] by means of a proxy marriage. The judge found the marriage had not been validly entered into and the relationship was not genuine. It was a marriage of convenience.
2. The appellant became appeal rights exhausted on 8 June 2015. Soon afterwards she was detained and her removal was arranged. On 22 June 2016 she applied for asylum. The basis of her account was that her late husband's family believed she had murdered him. When he died, his family wanted her to perform rituals on his dead body, including sleeping with him for seven nights, which she refused to do. In September 2011, four weeks after her claimed marriage to [PS], the appellant said she was kidnapped by her former brother-in-law and held for three days. She was kidnapped, ill-treated and raped. She was rescued by her parents. In 2012 her mother telephoned her to tell her that her shop had been burnt down by her late brother's husband. Additionally, the appellant said she was a lesbian or bisexual. She claimed to have been in a relationship in the UK with a woman called Mimi. Her claim was rejected by the respondent and the appellant appealed.
3. The appeal was heard by Judge of the First-tier Tribunal M B Hussain on 4 October 2017 at the Hatton Cross hearing centre. In setting out his reasons for dismissing the appeal, the judge directed himself as to the burden and standard of proof and then turned to the credibility challenges made in the reasons for refusal letter. He reasoned that the Secretary of State was right to have relied on section 8 of the Asylum and Immigration (Treatment of Claimants, et cetera) Act 2004. He said at paragraph 33, "It seems to me to be inescapable that the appellant only claimed asylum as a means of preventing her removal from the United Kingdom. That finding undermines the credibility of the appellant generally. However, like the Secretary of State, I am aware that an adverse credibility finding relying on Section 8 of the 2004 Act is not determinative of the appellant's overall credibility. Her claim must be assessed in the light of the totality of the evidence before the Tribunal."
4. Next, the judge noted that the respondent had found the appellant's account of her realisation that she was bisexual to be inconsistent and the judge found there was "much force in the Secretary of State's observations ". He also agreed with the respondent that the appellant's account was inconsistent regarding the duration of her relationship with Mimi.
5. The judge did not hold it against the appellant that she failed to mention her sexuality in her previous appeal, which was against an EEA decision. However, he reasoned that the appellant's delay in claiming asylum undermined her credibility nonetheless. He said as follows in paragraph 41, "It seems to me reasonable to expect a person to make the choice of making an asylum claim based on genuine grounds and an EEA application based on a marriage of convenience, that they would opt for the former. In making her EEA applications, the appellant would have had the benefit of legal assistance. She would have been advised that if she were either a lesbian or bisexual person, then those were good grounds for making an asylum claim. She did not do so, which in my view seriously undermines her credibility."
6. In the same paragraph, the judge explained he did not agree with the respondent's consideration of the appellant's responses at interview regarding her reaction to the discovery she was bisexual.
7. The appellant called witnesses. The judge found that the first of them could only state what the appellant had told him. The second witness was Rev Lucy Winkett, who confirmed that the appellant was a regular attender at LGBT events at her church. The judge said there was no reason to doubt that the appellant attends the church LGBT group and was a well-liked member. He did not doubt the sincerity of the witness's evidence that she believed the appellant to be bisexual. However, he did not consider that he was obliged to find that the appellant's account was truthful. He noted, in paragraph 46, that the appellant had only associated herself with the LGBT group after she claimed asylum in June 2016.
8. Turning to the appellant's account of her fear of her in-laws, he considered the account given by the appellant of being required to sleep with her husband's corpse "wholly bizarre ? not least because by then the corpse would decompose" (paragraph 50).
9. The judge noted that a medico-legal report had been provided, prepared by Professor Cornelius Katona MD FRCPsych, a consultant psychiatrist, concluding that the appellant suffers from PTSD. The judge accepted he had no reason to doubt that the appellant does suffer from that condition. However, the judge declined to give this matter significant weight as corroboration of the claim because he considered it had not been explained why, if this condition had developed due to the appellant's experiences in Nigeria, she only sought assistance after she claimed asylum. He noted, "If the severity of her condition is as it is described, then she would have needed medical intervention earlier. Yet, she appears to have chosen only to turn to medical attention after she claimed asylum".
10. The appeal was dismissed on all grounds. In relation to human rights he found, in a short paragraph, that the severity of the appellant's condition did not reach the high threshold for a finding in her favour under article 3. In terms of her private life, her exclusion was proportionate, having regard to the considerations set out in section 117B of the 2002 Act.
11. The appellant sought permission to appeal on three main grounds. Firstly, she argued the judge had failed to apply the relevant guidelines, namely the UNHCR Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity and the guidance of the CJEU in A, B & C v Staatssecretaris van Veiligheid en Justitie Cases C-148/13 to C-150/13. In particular, the credibility of an asylum seeker's statements regarding their sexual orientation should not be based on stereotypical assumptions. Consideration should be given to any possible reasons for not disclosing this issue at the first available opportunity. The judge had fallen into error by not following these guidelines. Secondly, the judge failed to consider the witness evidence in the appropriate manner. This ground suggests the judge rejected the evidence of the appellant's witnesses on the basis that he had already made a credibility assessment with which their evidence conflicted. Furthermore, the decision was irrational given the witnesses' knowledge of the appellant. Thirdly, the judge failed to consider the expert evidence appropriately. Professor Katona had specifically addressed potential alternative causes of the appellant's PTSD and set out reasons why these were unlikely. He specifically attributed the appellant's mental health issues to her past experiences and her coming to terms with her sexuality. As an adjunct to this ground, it was pointed out that Professor Katona had found there was a real risk of deterioration in the appellant's mental health if she were returned to Nigeria which would in turn increase the risk of suicide. This had not been considered by the judge.
12. Permission to appeal was granted by the First Tier Tribunal. It was noted that the grounds had merit because it appeared the judge had determined the appellant's sexuality prior to considering all the evidence, he did not consider the guidelines for determining such appeals and he gave inadequate reasons for rejecting an expert's opinion.
13. The respondent has not filed a rule 24 response.
14. I heard submissions from the representatives on the issue of whether the judge's decision contained a material error of law.
15. Ms Akinbolu's submissions expanded on her written grounds. In essence, she argued that the judge had made a decision on credibility without taking into account parts of the evidence. He had placed emphasis on the late disclosure of the appellant's sexuality even though he had accepted that it was understandable the appellant had not raised it within her EEA appeals. Had the judge paid attention to the guidance and looked at the appellant's personal circumstances, such as her nationality, the fact she was married and she had not associated with anyone prior to 2016 who was familiar with the process and terminology, he might have come to a different conclusion. The fact the appellant had no knowledge in the environment she found herself in did not feature in the judge's decision.
16. Ms Akinbolu argued the judge's approach to the witness evidence was erroneous. He did not give weight to the length of time the appellant had known the people and the nature of their association. To find that the appellant had successfully deceived all of them over such a lengthy period with such frequent contact would have required a formidable exercise in deception. The judge had not paid sufficient attention to the detail of the evidence. He had not looked at the evidence in the round. In particular, he made no mention of the medical evidence in the context of his assessment of the appellant's claimed sexuality.
17. Turning to the medical evidence, Ms Akinbolu reminded me that the judge accepted the appellant had PTSD but had rejected the expert's view as to its causation. She described this as a fundamental error. It was insufficient to reject the report, which was supported by evidence from other medical sources, simply because the appellant had not sought treatment until after making her asylum claim. Again, Ms Akinbolu posed the question whether it was really possible for the appellant to have deceived everybody. She argued that the judge had failed to deal with the stand-alone medical claim. The article 3 claim had been dismissed in a single sentence notwithstanding the expert's opinion that the appellant was at high risk of self-harm.
18. In reply, Ms Everett said that the medical ground seemed to be the strongest point. She agreed the judge had not dealt with it fully. However, she argued that the medical evidence provided could not possibly lead to a finding that there had been a breach of article 3. As for the other arguments, the judge had been entitled to look at the delay in claiming asylum and the inconsistencies and discrepancies in the evidence. There was no error in his reasoning. The judge had looked at everything in the round as he should have. His reasons were adequate. On the issue of whether the judge should have considered the medical report in the context of his credibility findings, she pointed out that the medical report relied in large part on the narrative given to the expert by the appellant.
19. Ms Akinbolu added that a great deal of evidence had been submitted showing the inadequacy of medical facilities in Nigeria and the judge had not referred to this at all.
20. I reserved my decision as to whether the decision of Judge Hussain contains a material error of law.
21. Ms Akinbolu argued all the grounds with great diligence but it is clear to me that there is nothing at all in the first two grounds. The judge's reasoning followed a logical structure. In the first place, he assessed the credibility challenge mounted by the respondent. He looked at the question of the delay in claiming asylum and he made allowance for the fact the appellant might not have raised this within her EEA applications. He emphatically rejected the approach of the respondent to the evidence regarding the manner in which the appellant had come to terms with her sexuality, rightly noting that "there is no standard response to any of the questions posed, nor is there any standard way of expressing one's emotion to his/her sexuality." He clearly did not fall into the error of stereotyping. Moreover, in giving weight to the delay in claiming asylum, the judge was entitled to consider that the fact she opted to pursue bogus EEA applications rather than put forward her claim for international protection had not been adequately explained in the light of the fact she was legally represented.
22. Regarding the evidence of the witnesses, Ms Akinbolu's submissions came close to arguing that the evidence was so substantial and detailed that no rational judge could have rejected it. Indeed, that argument is raised in the written grounds although not expressly pursued at the hearing. In any event, it was for the judge to assess the witness evidence and to give it appropriate weight. That is what Judge Hussain did. Behind consideration of this evidence is the obvious fact that only the appellant can know for sure what her sexuality is and, as the judge recognised, all the witnesses could do was set out their beliefs about it based on their observations. As far as I can see, no evidence was called from any of the appellant's partners. It was open to the judge to find the appellant had not established this aspect of her claim notwithstanding the witness evidence.
23. The argument that the judge rejected their evidence because he had already made up his mind about the appellant's sexuality could perhaps be seen to gain some support from the sentence in the middle of paragraph 44 of the decision in which the judge noted that, "whilst they may honestly believe that the appellant is a bisexual/gay person, I am not prepared to find that this is so for all the other reasons set out above", although this extract was not specifically brought to my attention. In my judgement, any doubts about the matter are dispelled by the fact the judge expressly rounded up his consideration of the appellant's credibility in relation to her claimed sexuality in paragraph 47 of his decision. His decision cannot be read in any other way than that he looked at all the evidence he had assessed prior to paragraph 47 in reaching his overall conclusion as expressed there.
24. The position is that, whilst many other judges might have reached a different view on the evidence presented, the Upper Tribunal will not interfere with a decision unless a material error of law has been demonstrated. It was open to this experienced judge to make adverse credibility findings and his reasoning does not show any material error of law.
25. That leaves the question of the medical evidence. The judge looked at this within his consideration of the other limb of the appellant's claim, regarding her fear of her ex-husband's family. That is no doubt because the report of Professor Katona was important evidence when it came to assessing the credibility of the appellant's account of having been ill-treated and raped. Professor Katona is a well-respected expert who frequently provides medico-legal reports to the tribunal. He is eminently well qualified and his reports contain clear reasoning and follow a well-established methodology.
26. Judge Hussain accepted Professor Katona's finding that the appellant suffers from PTSD. He noted as well that this diagnosis was supported by other medical evidence. The judge was also conscious of the conclusion of the expert that this condition had been caused by the appellant's experiences in Nigeria.
27. It is relevant to note that Professor Katona did consider the possibility that other factors, such as the appellant's separation from her country and her mother, the breakdown of her relationship with her second husband, her multiple bereavements and her continuing immigration uncertainty, may have caused her PTSD. At paragraph 4.2 of his report, he states as follows, "In my clinical opinion this is unlikely. These other factors may well be aggravating her mental symptoms (particularly her depressive symptoms) but do not provide a clinically plausible explanation for her core PTSD symptoms such as her intrusive thoughts and her avoidant behaviours."
28. So far so good. However, I note at this point that Professor Katona does not appear to have been told that the appellant's marriage to [PS] was a sham, as determined by the tribunal in March 2015. In fact, Professor Katona sets out a great deal about the appellant's marriage in his recitation of her account and goes on to use her decision to stay with her second husband despite his abusive behaviour as evidence of her vulnerability (see paragraph 8.4). Therefore, where Professor Katona sets out his reasons for his opinion that the appellant was not feigning or exaggerating her symptoms (see paragraph 6.1), he did not take account of the fact the appellant had pursued dishonest applications to the Home Office, which she maintained at an appeal hearing.
29. At the hearing I indicated that I was attracted by Ms Akinbolu's submissions about the judge's approach to the medical evidence (ground 3). However, the fact Professor Katona was not aware that the appellant has a history of deceptive conduct must be a matter significantly reducing the weight which can be given to his report as potential corroboration. His clinical finding that the appellant suffers from PTSD is probably sound but his observations about causation must be open to question.
30. Although this was not a point taken by Judge Hussain in his decision, it must blunt the force of Ms Akinbolu's challenge to his use of the report. To the extent Ms Akinbolu argued the judge was obliged to give the report greater weight towards establishing the appellant's account, the strength of her arguments is diminished.
31. It is true that the judge's consideration of the freestanding article 3 ground was extremely cursory and made no reference to the materials showing the paucity of treatment for mental health conditions in Nigeria. However, Professor Katona's report is based in part on an acceptance of the appellant's sexuality which, as seen, the judge rejected. Likewise, he based his concerns on the appellant being returned to the setting in which she had described being raped and ill-treated. That account was also rejected by the judge. The freestanding article 3 case must be based on the appellant returning to Nigeria with PTSD, the root cause of which remains unknown.
32. Ms Akinbolu accepted the threshold for success on article 3 grounds in health cases is high. The Court of Appeal recently explained in AM (Zimbabwe) v SSHD [2018] EWCA Civ 64 that, until the Supreme Court rules on the effect of Paposhvili v Belgium (Application no. 41738/10), the law is as set out in N v SHHD [2005] UKHL 31, which remains binding precedent. Sales LJ, giving the judgment of the Court of Appeal, decided that removal would only violate article 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of treatment which would have been available in the UK ([38]).
33. The appellant has her mother in Nigeria. She would certainly lose the comfort of her friends at church. Beyond that, given the difficulties with the medical evidence which I have noted, it is not possible to form an accurate view of the appellant's likely degree of vulnerability on return and therefore her medical needs. Notwithstanding the absence of any reference to the background evidence on medical facilities in Nigeria, I am driven to conclude, in agreement with Ms Everett's submission, that it has not been shown the judge erred by failing to give more detailed consideration to the article 3 claim. Any error would be immaterial given the intrinsic weakness of the claim set against the high threshold set by the law. The appellant cannot show the deterioration in her health caused by her removal would cause intense suffering.
34. I also indicated at the hearing I was troubled by the judge's failure to address the issue of the risk of suicide. Having read the papers again post-hearing, I note that Ms Akinbolu did not refer to suicide risk in her skeleton argument in the First-tier Tribunal and the judge's record of her submissions to him does not include any reference to it either. It was not raised in the grounds of appeal. In my survey of the voluminous papers in this case I have not come across any reference to suicide risk in the medical letters or statements and letters prepared by the appellant's church friends. It does not appear to have been a point which was at the forefront of the appellant's case.
35. However, it was certainly raised in Professor Katona's report. He said in paragraph 9.2 of his report that the appellant "is not actively suicidal at present but it is of some concern that she still experiences derogatory hallucinations that sometimes urge her to kill herself and that on one occasion she has acted on these. Her sense of hopelessness is a further indicator of increased risk of suicide. There is in my clinical opinion a significant risk that if [the appellant] lost all hope of being allowed to remain in the UK her suicidal thoughts and urges would increase to the extent of tipping over to actual (and potentially lethal) self-harm".
36. The correct approach in such cases is set out in J v SSHD [2005] EWCA Civ 629 and Y (Sri Lanka) & Z (Sri Lanka) [2009] EWCA Civ 362. There needs to be an analysis of the mechanism of return as well as what awaits the appellant in the receiving state. None of this was done. However, in the light of my concerns about Professor Katona's state of knowledge of the appellant and the fact the objective basis for the appellant's claimed fears can be removed from the assessment, I am not satisfied it has been shown the judge materially erred by leaving suicide risk out of his assessment. There is no realistic prospect that the appellant could have succeeded on this ground once an adverse credibility assessment had been made.
37. There is no error of law in the First-tier Tribunal's decision to dismiss the appeal and the decision shall stand.
38. The appellant's appeal is dismissed.
Notice of Decision

The Judge of the First-tier Tribunal did not make a material error of law and his decision dismissing the appeal is upheld.

No anonymity direction is made.

Signed Date 25 April 2018

Deputy Upper Tribunal Judge Froom