Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-000961
PA/07237/2019

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On the 15 March 2022
On the 14 June 2022

Before

UPPER TRIBUNAL JUDGE BRUCE
DEPUTY UPPER TRIBUNAL JUDGE COTTON

Between

BT
(anonymity direction made)
Appellant
and

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr Z Raza of Counsel instructed by David Wylde & Co Solicitors
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is an ethnic Kurd and a national of Turkey, born in 1989. He appeals with permission of the First-tier Tribunal (FtT) to dismiss his asylum appeal.

Background

2. The appellant arrived in the UK in October 2015 and claimed asylum in November 2015.

3. His claim was that, were he to be returned to Turkey, he would face a real risk of torture due to his political views. The appellant is an ethnic Kurd and stated that he supported the HDP (the Peoples’ Democratic Party) since 2007 and was a member since 2013. He states that he has been arrested on four occasions for reasons of his political beliefs and mistreated by those who arrested him.

4. He further claimed that being returned to Turkey would be a breach of his Art 8 rights. By the date of the FtT hearing he had been in a relationship in the UK with his fiancé for over three years and had been engaged for two, their marriage being delayed by the effects of COVID. He claimed that there would be insurmountable obstacles to family life continuing in Turkey and that their separation would be disproportionate.

The Decision of the First-tier Tribunal

5. The FtT (Judge Wilding) found that the appellant was not a credible witness. There were, found the judge, large discrepancies in the appellant's evidence on the number of detentions, as well as where and when they took place.

6. The FtT considered the statements and live evidence of the appellant and statements of his family members, as well as the appellant's asylum interviews. The FtT had available to it evidence of the appellant’s mental health (a Rule 35 assessment of PTSD and a report by a cognitive psychotherapist).

7. The judge found discrepancies in relation to the number of detentions he was subject to, where and when they took place. In the screening interview he said he was detained on one occasion and that this was for 10 days. In interview the appellant said the longest he was detained was 3 days. In live evidence he said he was detained for no more than one day. In his asylum interview he said he was detained on four separate occasions.

8. He variously said that he was arrested, or not, and taken to a forest, or not. The judge discounted confusion or an interpretation error as the reason for this difference. The FtT noted that the appellant gave a further (different) account in the psychological report.

9. The FtT considered the psychological report in assessing the appellant’s credibility and concluded that it did not assist.

10. The FtT found further inconsistencies in the evidence regarding the appellant’s family circumstances in Turkey, including the evidence on when the appellant’s father died. There were inconsistencies in evidence on whether the Turkish authorities had a continued interest in the appellant.

11. The FtT accepted that he had been tortured in the past but found that, at the time of the FtT decision, he was not of interest to the authorities in Turkey.

12. In regard to the Art 8 claim, the FtT found that there were not insurmountable obstacles to the appellant’s fiancé returning to Turkey with him. The FtT accorded little weight to the private life established in the UK by the appellant and found it proportionate for him to be removed to Turkey.

13. The appeal was dismissed.

14. Permission to appeal was granted on 2 grounds. There was an arguable material error of law by the FtT in:

a. Failing to treat the appellant as a vulnerable witness in light of the medical evidence available to the FtT.

b. Failing to give adequate consideration to the country expert report when considering the credibility of the appellant’s account.

15. There was no challenge to the FtT’s findings on Art 8 and those findings are therefore preserved.

Error of Law

16. In the context of this case, there are three main sources of direction and guidance when the Tribunal deals with a witness who may be considered vulnerable.

a. The Practice Direction for the First Tier and Upper Tribunal on Child, vulnerable adult and sensitive witnesses (the practice direction);

b. Joint Presidential Guidance Note No2 of 2010 (the guidance note); and

c. AM (Afghanistan) v SoS for the Home Department [2017] EWCA Civ 1123 (AM Afghanistan).

17. The practice direction concerns “vulnerable adults”, which are defined by reference to the Safeguarding Vulnerable Groups Act 2006. The appellant does not appear to fall within this definition of a vulnerable adult. The practice direction also concerns “sensitive witnesses” which means an adult witness where the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with giving evidence in the case. The Tribunal is required to consider how to facilitate the giving of evidence by a sensitive witness, and the procedure rules provide flexibility to the Tribunal in how evidence may be received.

18. The guidance note concerns the same groups of Tribunal users, but guides judges that whilst some individuals are by definition vulnerable, others are less easily identifiable and that the Tribunal should take into account factors like mental health problems. The judge is guided to make an assessment in each case on the extent of any vulnerability, the effect on the quality of the evidence and the weight to be placed on the vulnerability in assessing the evidence as a whole.

19. AM Afghanistan considered the way in which the Tribunal should facilitate the participation of children and vulnerable people. Of particular relevance to this case, the court concluded that failure to follow the practice direction would most likely be a material error of law [30]. The court also noted that the evidence of medical experts can be critical in providing explanation for difficulties in giving a coherent and consistent account of past events and for identifying any relevant safeguards required to meet vulnerabilities [21].

20. It is regrettable that the appellant’s representatives do not appear to have drawn the FtT’s attention to the practice direction, guidance note, or to AM (Afghanistan), instead turning to them on appeal. It may be that, had they done so, the FtT would have dealt with the issue that is now the first ground of appeal.

21. Notwithstanding this, it falls to the Tribunal to ensure that the hearing matches the high standards of procedural fairness required in asylum hearings.

22. The FtT noted that there were no submissions to the effect that the appellant's cognitive condition would mean he was not capable of giving evidence.

23. The effect the appellant’s mental health has on the quality of the evidence is assessed by the judge, who concludes that the medical evidence does not assist in assessing credibility [23] and that it was not suggested that the appellant’s mental health condition meant he was not capable of giving evidence [30]. The judge did, in this, consider the weight to be placed on the vulnerability in relation to this area of the evidence.

24. The judge does not however appear to have made an assessment on the extent of the appellant’s vulnerability (understood in the sense used in the guidance note), whether the tribunal’s procedure should be altered to accommodate it, or the weight to be placed on the vulnerability in assessing the evidence as a whole.

25. It may be that, even approaching the evidence fully in line with the relevant direction and guidance, the inconsistencies in the evidence will, in the final analysis, be fatal to the appellant’s case. However, without the evidence on the appellant’s mental health being given the full consideration that it requires, we conclude that the FtT did not achieve the level of fairness required.

26. Given our conclusion on the first ground of appeal, we do not consider it necessary to address the second ground.

Anonymity Order

27. Paragraph 28 of the Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private reads:

“In deciding whether to make an anonymity order where there has been an asylum claim, a judge should bear in mind that the information and documents in such a claim were supplied to the Home Office on a confidential basis. Whether or not information should be disclosed, requires a balancing exercise in which the confidential nature of the material submitted in support of an asylum claim, and the public interest in maintaining public confidence in the asylum system by ensuring vulnerable people are willing to provide candid and complete information in support of their applications, will attract significant weight. Feared harm to an applicant or third parties and "harm to the public interest in the operational integrity of the asylum system more widely as the result of the disclosure of material that is confidential to that system, such confidentiality being the very foundation of the system's efficacy" are factors which militate against disclosure. See R v G [2019] EWHC Fam 3147 as approved by the Court of Appeal in SSHD & G v R & Anor [2020] EWCA Civ 1001”.

28. Having had regard to that guidance we are satisfied that it would be appropriate to make an order for anonymity pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 as follows:

“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, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Decisions and Directions

29. The decision of the First-tier Tribunal to dismiss the appellant’s Article 8 claim is unchallenged and therefore stands.

30. The decision of the First-tier Tribunal, insofar as it related to his protection claim, is set aside for material error of law.

31. The case is remitted to the First-tier Tribunal for re-hearing on the protection issues only.

32. There is an order for anonymity.

D Cotton
Upper Tribunal Judge Cotton
7 April 2022