Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13197/2016

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision and Reasons Promulgated
On 13th March 2017
On 14th March 2017

Before

UPPER TRIBUNAL JUDGE COKER

Between

M S R
(Anonymity direction made)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms U Dirie, instructed by Lawrence Lupin Solicitors (Olympic way)
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant in this determination identified as MSR. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings
1. Permission to appeal the decision of First-tier Tribunal Judge R Sullivan was granted on the ground that an adjournment should have been granted to enable the appellant to obtain and rely upon an ‘Istanbul compliant’ medical report. Such a request had been made at the hearing before the First-tier Tribunal Judge and refused.
2. The First-tier Tribunal judge considered the Rule 35 report which had been obtained dated 7th December 2017. It was said to me that the applicant had applied for a medical examination as soon as he was detained (18th October 2016) and the date on which he was examined for the report was the first date he was given. There was no evidence to that effect, other than counsel’s submissions to me, and no evidence that was said to the First-tier Tribunal. The submission was that a report by a consultant psycho0logist would “provide independent corroboration of the Appellant’s account and help the Tribunal to understand if the Appellant has any difficulty giving evidence”. Although the appellant has some scars, a report by a consultant psychologist cannot give independent corroboration – s/he was not present at the time of the alleged incident. Ms Dirie amended her submission to the effect that a consultant psychologist would be able to consider the appellant’s demeanour, whether the appellant was exaggerating and whether the scarring was consistent with the claimed causation.
3. It was not explained to me, or to the First-tier Tribunal so far as I could see, how a consultant psychologist would be able to consider and determine whether scarring was consistent with claimed causation. The information before the First-tier Tribunal was only that a psychologist was sought to be instructed. It was not evidenced that the appellant, who had been in the UK since January 2011 and claimed asylum on 18th October 2016 after being detained on 13th October 2016, had ever sought medical advice or treatment either for any physical ailment or for any mental health issues.
4. Ms Dirie submitted the judge had failed to explain in the judgement what weight would be attached to the Rule 35 report and the existence of scars, or how the judge could consider an assessment of the appellant’s mental health and ability to give evidence and/or provide an explanation for discrepant evidence, without the benefit of a consultant psychologist whose report would address such matters from a professional perspective.
5. In paragraph 14 the judge set out her consideration of the application:
“I considered the application for an adjournment under rule 4 of the Tribunal Procedure (First tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, in light of the objective, powers and duties at rules 2 and 4 of those rules and in light of the guidance to which I had been referred. I was mindful in particular of the need to deal with this appeal fairly and justly. Notice of the hearing had been issued on 30 November 2016. The Appellant has been assisted by solicitors experienced in this jurisdiction since 9 November at the latest. They had been able to take detailed instructions from him and to prepare a detailed witness statement. There had been no suggestion that they had been unable to do so by reason of the Appellant’s ill health. At the screening interview on 28 October 2016 and again at the substantive interview on 9 November 2016 the only health conditions he had disclosed were asthma and difficulty sleeping for two weeks. There is no indication that 2005 clinic records in Pakistan would still be available; the Applicant believes they would not. The Applicant has scars which are noted in the Rule 35 report; I will take these into account. He reported for the preparation of the Rule 35 report that he was suffering from anxiety, insomnia and flashbacks and I can take his report of those symptoms into account. He will be able to describe his present condition more fully in evidence if he wishes. There is no suggestion that any further medical examination would reveal further physical symptoms, such as physical signs of sexual abuse in 2005. It appeared to me that any doctor would be largely reliant on the Appellant’s description of current symptoms particularly as regards mental ill health, albeit that a doctor would assess those symptoms from a professional point of view. Having considered the issues to be determined in this appeal, the evidence which has been filed and the nature of the report which it had been proposed to seek I was not satisfied that such a report would have a material bearing on the outcome of the appeal and I refused the application.”
6. The relevant Tribunal Procedure (First tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (“Procedure Rules”) are as follows:
Overriding objective and parties’ obligation to co-operate with the Tribunal
2. - (1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it -
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must -
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally.
…
Case management powers
4. - (1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.
(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may -
…
(h) adjourn or postpone a hearing;
…
7. The challenge to the refusal to adjourn the hearing is a challenge to the assessment the judge made, weighing the potential assistance a consultant psychologist report may provide the appellant in the assessment of evidence before the judge and the overriding objective of the Tribunal as set out in the Procedure Rules. There is nothing in the Rule 35 report that indicates the appellant might have difficulties in recall or that it would affect his ability to give evidence. The appellant confirms that the medical record referred to in the Rule 35 report that the doctor considers might be of assistance, would not be available. There has been no prior indication that the appellant has mental health issues that may be of concern. On 9th November 2016, the appellant stated for the first time that he would be seeking medical assistance because he hadn’t slept for the previous two weeks “inside”, referring to the period since his detention. In that interview he said he had told the interviewer everything, that he had nothing to add, that he had fully understood the interpreter. he had said he was fit enough to be interviewed. He was represented by his legal representatives during that interview and his solicitors had provided an interpreter. Neither the legal representative nor the interpreter had any comment to add.
8. Although the Rule 35 refers to the appellant complaining of anxiety symptoms, insomnia and flashbacks it does not appear, contrary to the submissions made, that the appellant had sought an appointment to see the doctor for the purposes of a Rule 35 report as soon as he was detained. He refers in his interview to a four day wait for an appointment which would indicate that he did not seek the appointment until after he received the refusal of asylum.
9. The judge very carefully considered the evidence before him. There is no indication in the grounds seeking permission to appeal that a psychologist report would have or indeed could have made any significant difference to the assessment of the appellant’s evidence given the extensive discrepancies in the appellant’s evidence. The appellant was provided with ample opportunity to explain the significant discrepancies in his evidence. Although Ms Dirie submitted the judge failed to state the weight attached to the Rule 35 report, the judge, in a careful, detailed and fully reasoned decision plainly took account of that report. The scale of the discrepancies, the extent of the variation in the appellant’s evidence, the appellant’s own evidence that his insomnia has occurred only since he was detained, that there was no stated intention to obtain a report from a specialist as to the scarring, together cannot lead to any other rational conclusion but that the decision to refuse an adjournment to instruct a consultant psychologist was anything other than correct.

Conclusions:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside the decision
The decision of the First-tier Tribunal stands.

Anonymity
The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Date 13th March 2017

Upper Tribunal Judge Coker