Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11902/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 July 2019
On 08 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE PEART

Between

MD B M
(anonymity direction made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Franco, of Counsel
For the Respondent: Mr Tarlow, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Bangladesh. He was born on 19 January 1988. He appealed against the respondent's decision to refuse him asylum, humanitarian protection and on human rights grounds dated 19 October 2018.
2. In a decision promulgated on 25 April 2019, Judge Hanley (the judge) dismissed the appeal. He did not find the appellant to be credible and that he would not be at risk on return. The appellant's removal to Bangladesh would not engage Article 8.
3. The grounds claim the judge failed to adequately take into account the appellant's poor mental health and vulnerability which was material as it had an adverse effect upon the appellant's overall credibility. Further, the judge at [77]-[82] failed to properly consider the appellant's documentation or provide adequate reasons why the documents were not accepted.
4. Judge S P J Buchanan refused permission to appeal in a decision dated 28 May 2019. He said inter alia as follows:
"3. The FTTJ addresses the psychiatrist's report at paragraphs 84 and 85 of the decision. He explains that the expert fails to comply with the Practice Direction in respect of expert evidence and 'has failed to provide a clear statement of his duty to the court'. The FTTJ gives adequate reasons for giving little weight to the evidence. I refer to AAW (Expert evidence - weight) [2015] UKUT 673 (IAC); and consider that the FTTJ's decision accords with that decision.
4. As regards documents, the most cogent of reasons are given at paragraph 82 for giving little weight to them [as noted at paragraph 78]. The FTTJ explains that the appellant was inconsistent in his evidence as regards 'key features of the documentation'. There are adequate reasons given."
5. The application was renewed to the Upper Tribunal. Upper Tribunal Judge Stephen Smith granted permission in his decision dated 25 June 2019. He said inter alia as follows:
"1. The judge found the appellant to be an 'evasive witness' and that he 'avoided answering the question put to him' on occasions. That being so, it is arguable that the judge failed to have proper regard to the medical evidence - which was dismissed in brisk terms at [84], towards the end of the judge's operative credibility analysis - which said that the appellant found it difficult to understand and answer questions, and that he struggled to provide meaningful and coherent answers. See Dr Pennybacker's report at [5]. Although the judge rightly observed that that report did not comply with the letter of the Practice Direction concerning expert reports, the report concluded with a statement which made clear that the report's conclusions were the author's own professional opinions. The remaining medical evidence outlined the appellant's admission to a psychiatric hospital in Bangladesh, and his referral for NHS treatment for his mental health conditions in this country. Given the significance the judge ascribed to the appellant's 'evasiveness', arguably it was a material error of law not to consider the impact of the appellant's mental health on his ability to give a coherent and clear account.
2. The criticisms concerning the judge's analysis of the documents provided by the appellant have less merit. However, I grant permission on all grounds."

Submissions on Error of Law
6. The representatives drew my attention to a psychiatric report before the judge dated 5 February 2019. It is at pages 45-46 of the appellant's bundle with additional medical evidence at pages 47-50 of the bundle. At page 46, Dr Pennybacker consultant psychiatrist said at [5] "?? in my opinion he is not fit to provide oral evidence in an asylum interview or a court of law".
7. The asylum interview had already taken place prior to Dr Pennybacker's report.
8. Mr Tarlow conceded an error on the part of the judge notwithstanding that neither the appellant's Counsel Mr Mold or the Presenting Officer drew the report to the attention of the judge. See [85] of the decision.
Conclusion on Error of Law
9. Notwithstanding that the report regarding the appellant's fitness to give evidence was not drawn to his attention, the judge was obliged to take account of the same. Notwithstanding that the appellant was tendered by Counsel, the judge was obliged to raise with the parties the appellant's fitness to give oral evidence given what Dr Pennybacker had to say. In such circumstances, it was irrelevant that the consultant psychiatrist had not complied with the Practice Direction.
Decision
10. The judge materially erred. His decision is set aside and will be remade in the First-tier following a de novo hearing. Mr Franco requested and I agreed that the re-hearing would take place at Taylor House as owing to the appellant's psychiatric condition, he finds travelling to Hatton Cross from Central London onerous.

Anonymity Direction continued.

Signed Date 26 July 2019

Deputy Upper Tribunal Judge Peart