Tribunal decisions

The decision

IAC-AH-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05578/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 9 March 2017
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

AV
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr S Jaisri, counsel instructed by Kanaga Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Amin, promulgated on 4 January 2017. Permission to appeal was granted by First-tier Tribunal Judge Saffer on 25 January 2017.

Anonymity
2. Such a direction was made previously and is reiterated below.
Background
3. On 14 November 2015, the applicant entered the United Kingdom using a false passport and applied for asylum. The basis of that claim was that while staying with an uncle in Paranthan, she was forced to join the LTTE in 2008 and underwent training for a few months. She escaped from the medical treatment camp in May 2009 and surrendered to the Sri Lankan army. The appellant was taken to a Criminal Investigation Department camp during February 2010 owing to having disclosed her LTTE training. She was ill-treated; signed a confession that she was an LTTE member and unconditionally released over 4 months later. Thereafter the appellant married but one day her husband did not return from work. On 22 December 2014, the Sri Lankan authorities came to the appellant’s house to enquire as to his whereabouts. This happened often, however the appellant’s neighbours and others told her that her husband was arrested by the CID. During February 2015, the appellant was told to attend the Kodikamam CID camp for questioning. She was again subject to ill-treatment and to sign a confession to being a member of the LTTE. She was told that the authorities would keep an eye on her. The appellant stayed with her uncle after her release and left Sri Lanka having learned that the authorities continued to ask for her at her home.
4. In refusing the appellant’s protection claim, the Secretary of State rejected her claim to have faced problems from the Sri Lankan authorities for being a LTTE member, principally owing to inconsistencies between her accounts as well as a lack of knowledge regarding her husband’s involvement with the intelligence wing of the LTTE. Furthermore, it was not considered sufficient for the Sri Lankan government to perceive her as a threat based on her completion of compulsory LTTE-related activities. No weight was placed on documents provided by the appellant in support of her claim, which included a medical report. It was further said that the appellant’s credibility was damaged as she entered the United Kingdom using a false passport.
5. The appellant’s human rights claim was rejected owing to her own lack of leave to remain; the fact that her children had not resided in the United Kingdom for 7 years or more and there were said to be no exceptional circumstances. Consideration was given to the appellant’s account of her mental state, however there was said to be no evidence provided in support of a medical condition indicating that it would be inhumane to remove her.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the appellant and her brother MA gave evidence. She did not pursue her Article 8 claim. The judge concluded that the appellant was not a credible witness and that she had been inconsistent in core aspects of her claim. The medical report was roundly criticised and little weight placed on it.
7. The judge considered the appellant had been opportunistic in relation to her post-flight political activities and had failed to produce any evidence that the authorities would be aware of them or concerned about them.

The grounds of appeal
8. The grounds of appeal argued, firstly, that the judge’s approach to the medical reports as well as to the assessment of credibility was flawed. Reference was made to over a dozen different aspects of the decision. Secondly, it was argued that the judge’s assessment of risk was untenable, being contingent on the view taken on the appellant’s credibility.
9. Permission to appeal was granted on the basis that it was arguable “that the judge may have made significant factual errors arising from the medical report as claimed such as to amount to a material error of law. All grounds may be argued.”
10. The respondent’s Rule 24 response, received on 10 February 2017 indicated that the appeal was opposed. It was said that the judge’s credibility findings were unchallenged; that she was entitled to place adverse weight on the medical report of Mr Izquierdo Martin and to place weight on the inconsistent dates in Dr Dhumad’s report.
The hearing
11. Mr Jaisri relied on all grounds but focused his submissions on the judge’s findings in relation to the medical evidence. Essentially, the judge was wrong to find that the appellant had never mentioned cigarette burns previously; was wrong to criticise the medical evidence because of discrepancies regarding whether blunt instruments were used and her mistakes as to the medical report of Mr Martin were not borne out by an examination of the report. Otherwise, Mr Jaisri referred to the lack of any substantial discrepancies between the appellant’s accounts notwithstanding the judge’s description of the evidence as being “riddled with inconsistencies.”
12. For his part, Mr Armstrong endorsed all the judge’s reasoning and categorised the criticisms in the grounds as mere disagreement. He further argued that even if there was merit in the grounds, this would not change the judge’s finding that the appellant would not be at risk because she did not fall under the risk categories identified in GJ.
13. In reply, Mr Jaisri argued that it had never been suggested in other cases before the Upper Tribunal that Mr Martin had no expertise regarding scarring. As far as the claimed inconsistencies went, the judge mostly relied on the absence of evidence and tried to show distinctions between the appellant’s evidence and the medical report. While Dr Dhumad’s report set out the appellant’s account in some detail, this did not render the appellant’s account inconsistent to the extent that her evidence or that of Dr Dhumad ought to be rejected. Mr Jaisri relied on his skeleton argument in relation to the GJ point. Essentially, he argued that GJ was not the be all or end all, relying on In MP (Sri Lanka) and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829, which said that the Upper Tribunal in GJ had not stated that diaspora activism is the only basis on which a returning Tamil might be regarded as posing a future threat and thus of being at risk on return.
14. At the end of the hearing, I indicated that the judge made material errors of law and that the decision was set aside in its entirety. I remitted the appeal to the First-tier Tribunal, de novo, as the appellant has not had a fair hearing of her appeal. Furthermore, she was not present and in any event, no interpreter had been booked.
15. I now give my reasons.

Decision on error of law
16. The judge made several mistakes of fact when considering the medical report of Mr Martin. At [49] she found that the appellant had never mentioned injuries caused by cigarette burns previously and categorised this as an inconsistency which rendered her evidence unreliable. The judge was mistaken on this. The appellant had mentioned been burned with cigarettes during her asylum interview in her response to question 142. Furthermore, the photographs and map of the appellant’s body provided evidence of scarring from cigarette burns. On the last point, the judge wrongly found that no body map had been provided, whereas it is present in the appellant’s bundle at page 107.
17. At [48], the judge noted Mr Martin’s reference to the appellant being hit with blunt instruments and found that the appellant had never claimed to have been hit with blunt instruments. To use the appellant’s apparent failure to use this term appears unfair. In any event, in her response to question 143 of the asylum interview, the appellant states that she was beaten with sticks and pipes. Neither of these could be described as sharp instruments, particularly given the manner in which they were used, and Mr Martin was entitled to use the term. There is no inconsistency in the evidence here.
18. The judge was under the mistaken impression that Mr Martin found that the scarring on the appellant’s person was simply “consistent with” her account of how the injuries were sustained. In fact, all the scars attributed to torture he found to be “typical.”
19. The judge misdirected herself as to Mr Martin’s conclusions on self-infliction by proxy. At [49] she summarised these as that “it was impossible to fully discard” SIBP, whereas Mr Martin, in fact, described it as a “remote possibility.“ The judge further misdirected herself as to the content of the Istanbul Protocol by implying at [51] that there was “a need for corroborative evidence of the scar injuries.”
20. Lastly, the judge erred by calling into question Mr Martin’s expertise in giving opinions on scarring, despite his work as a consultant in emergency medicine, plastic surgery and burns.
21. At [43], the judge erroneously purported to provide medical evidence, as to the likelihood of scarring following the appellant’s beating in detention in 2010. The absence of such scarring was a further reason provided to disbelieve the appellant’s account.
22. The respondent argues that there were sufficient concerns with the appellant’s credibility that the same conclusion would have been reached even without the above-mentioned errors. The difficulty with that submission was that the remaining findings were weak, in that they were based on matters which the judge found to be merely implausible and an insignificant discrepancy regarding the length of time the appellant was in training with the LTTE.
23. On the GJ point, I am satisfied that that the errors were material, in that a successful argument could be made on the appellant’s behalf in the absence of negative credibility findings.

Decision

The making of the decision of the First-tier Tribunal did involve the making of an error of on a point of law.

The decision of the First-tier Tribunal is set aside.

The appeal is remitted, de novo, to the First-tier Tribunal to be reheard at Hatton Cross, with a time estimate of 3 hours by any judge except First-tier Tribunal Judge Amin.

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 her 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 21 February 2022

Upper Tribunal Judge Kamara