Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001428

First-tier Tribunal No: PA/52609/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 7th of March 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

W Y (Pakistan)
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Winter instructed by McGlashan MacKay Solicitors.
For the Respondent: Ms S McKenzie, Senior Presenting Officer

Heard at Field House on 24 February 2025

DECISION AND REASONS

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

1. The appellant appeals against the decision of First-tier Tribunal Judge Buchanan, (“the Judge”) promulgated on 2 February 2024. The Judge dismissed his appeal against the respondent's refusal of his Article 3 human rights claim. Permission to appeal was granted by Upper Tribunal Judge O'Callaghan on 29 April 2024.
2. At the hearing before us, we heard submissions from Mr Winter and Ms McKenzie. We reserved our decision, which we now give.
Anonymity Order
3. The Judge issued an anonymity order. No party requested that the order be set aside. We observe that the appellant previously sought international protection.
4. We consider that at the present time the appellant's private life rights protected by article 8 ECHR outweigh the public interest in knowing his identity in these proceedings, as protected by article 10 ECHR. In the circumstances the anonymity order is properly to continue.
5. The order is detailed above.
Background
3. The appellant is a national of Pakistan whose international protection claim was refused by the respondent, and his appeal was dismissed by Judge Sorrell on 10 September 2018. He made further submissions relying on his human rights under Article 3. The submissions were refused by the respondent resulting in his appeal before Judge Buchanan on 18 January 2024.
The decision of the First-tier Tribunal
4. The Appellant was not present to give evidence at the hearing. In this regard, the Judge notes that the appellant’s Community Psychiatric Nurse (“CPN”) felt that he would be unable to attend but Professor MacPherson considered that he would be able to give a coherent account of his circumstances. The Judge noted that the appellant conceded in his skeleton argument that the consultant’s view must be preferred and that the appellant had been advised that the hearing should be on the papers.
5. The Judge was directed to the appropriate case law and sets this out at paragraph 8 and refers to it from [26] onwards. In the Evidence section, he expressly refers to the evidence of Dr June McIntyre dated 21 February 2018, a psychiatric report from Dr Ramsey dated 1 June 2021 and a report from Professor Gary MacPherson dated 8 June 2023. He notes the latter is a Consultant Forensic Clinical Psychologist and a Professor of Forensic and Legal Psychology. He sets out the conclusions of all three experts at paragraphs 14, 16, 18 and 19. He takes into account the report from Dr McIntyre, but notes that it was framed six years ago when she concluded the appellant’s PTSD stemmed from kidnapping and torture, which has not been shown to be true. The expert acknowledged that his symptoms could also be affected by substance abuse.
6. He refers to the appellant frequently vocalising his suicidal ideations to his lawyers and acknowledges the overwhelming evidence about a potential suicide attempt in his lawyers' offices in July 2022.
7. He concludes by attaching greater weight to Professor MacPherson's report because it is most up to date and he is a specialist in his field [25]. He states that he takes “full cognition” of the expert’s findings which are “a significant distance from evidence of any real risk of a substantial reduction in life expectancy from a completed act of suicide” [33]. Professor MacPherson does not attribute the July 2022 events or other conduct to be uncontrolled acts brought on by mental illness such that the first stage of the Article 3 claim has been established pursuant to MY (Suicide risk after Paposhvili) 2021 UKUT 00232 [35,36]. He notes that the Professor has had access to notes in clinical reports. He states that he considers the appellant’s mental health correlated with his asylum claim.
Grounds of appeal
8. The grounds of appeal are contained in an undated document comprising 6 paragraphs. In summary the written grounds advance that the appellant had attempted suicide by jumping from the solicitor’s offices following a negative immigration decision. Although the judge accepted this incident took place it was unclear how the judge could have arrived at his conclusions. The judge erred by placing too much weight on the report of Professor Macpherson to the exclusion of other medical evidence. The primary purpose of this report was to establish the appellant’s fitness to give evidence. The Judge displayed a lack of engagement with the other medical reports. The Judge’s conclusion that the appellant did not have a mental illness meaning suicide was brought about by uncontrollable impulses/mental illness did not take account of the situation.
9. Mr Winter submits that the Judge erred in law by placing too much weight on the report of Professor MacPherson to the exclusion of other factual elements and other medical evidence. He acknowledges that the Judge refers to the other medical experts but submits that there is no analysis and no evidence of anxious scrutiny being applied. He highlights the fact that Professor MacPherson was not involved in the treatment of the appellant and doesn't make reference to other reports such as the CPN treatment. Whilst it is not set out in the written grounds, Mr. Winter submits that there is an error in Professor Macpherson's evidence because he says the appellant had not had contact with medical services. He submits that it is unclear what reports the expert had.
10. He submits that although he accepts the judge refers to the medical diagnosis which is repeated across the medical evidence, what is missing is an analysis. He relies on the fact that the diagnosis of complex PTSD is referred to in the medico-legal reports of Dr McIntyre [287], an occupational therapist report dated March 2021 [341], in a social worker report [349] and in that of Dr Ramsey [335]. He acknowledged that Dr McIntyre examined the appellant in 2017 and both the social worker and occupational therapist are simply quoting a previous expert's diagnosis. He submitted that in terms of the weight placed on the expert evidence, a material error would vitiate the weight placed upon it.
11. He took us to the two letters from the treating CPN in 2022 and 2023 and submitted that it was not clear if Professor MacPherson had seen these letters. He concluded that the judge had fallen into error by failing to look at the evidence in the round.
12. In relation to other grounds, he submitted that paragraphs 2 and 3 amount to the same grounds and he had nothing to add to them. They state that the Judge erred in law by failing to attach relevant weight to an episode whereby the appellant appeared to intend to commit suicide at his solicitor's office. It is submitted that as the Judge accepts this took place, it is not clear how the Judge concluded there was no real risk of a completed act of suicide from impulses which he was not able to control.
13. Ms McKenzie submits that the weight to be applied is a matter for the Judge and he had done so properly. There is no lack of engagement or lack of anxious scrutiny based on reading of the decision.
Conclusions
14. We first consider whether the Judge placed too much weight on the MacPherson report and failed to take into account other evidence.
15. As expressed in cases such as Volpi & Anor v Volpi [2022] EWCA Civ 464; “An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration” [2]. In the present case the Judge is careful to expressly refer to the other expert evidence and to provide what we consider to be adequate analysis of it. He does not overtly refer to the CPN but he is not mandated to set out all evidence he has read and expressly states that his Evidence section is not exhaustive.
16. In respect of the factual evidence, we assume this is a reference to the appellant’s suicide attempt at his solicitor’s offices. We note that the Judge expressly refers to this episode and we deal below with the conclusion reached on risk of suicide.
17. We turn to whether the Judge was entitled to place more weight on one expert than another based on his explanation. We are of the view that he provided clear and adequate reasons why he attaches greater weight to Professor MacPherson’s evidence; because it is the most up-to-date of all the medical material available and he is a specialist in his field [25]. This case involves mental health diagnoses and the possibility of suicide which make the dependence on the most up-to-date expert evidence particularly pertinent. Dr Ramsey’s evidence dates from two years prior to Professor McPherson and Dr McIntyre’s evidence is based on consultations in 2017 nearly six years earlier.
18. Mr Winter goes on to submit that reference to complex PTSD is made by other experts but appears to suggest that this was not analysed and would affect the weight placed on the Professor’s opinions. We do not agree; the Judge expressly sets out the diagnoses at [14] and [16] and in fact notes that Dr Ramsay’s conclusion is based on the appellant’s emergency admission. He goes on to quote Professor McPherson at length in respect of his alternative view of diagnosis, namely that he is of the “view that the criteria for the diagnosis are not met”[18].
19. In our view he appears to have considered the evidence carefully and preferred one expert over another which he is entitled to do.
20. Mr Winter also submits that it is not clear whether Professor MacPherson had seen the CPN letters However the Judge clearly states that the expert had access to notes and clinical reports and reviewed the appellant’s mental health with him. This leads us to conclude that the judge did consider that the expert had the appellant’s notes and if the appellant or his advisers had failed to give the CPN letters to Professor McPherson that should have been something that was specifically raised with either the expert or the Judge; it cannot be a criticism directed at the Judge.
21. The final ground is essentially a submission on perversity because Mr Winter suggests that the Judge was not entitled to reach the conclusion in respect to the Article 3 assessment because he had not attached relevant weight to the appellant’s alleged suicidal tendencies. Although it was dealing with a 276ADE assessment, we are mindful of the guidance in Herrera v SSHD [2018] EWCA Civ 412 which is apposite. Lord Underhill stated; “It is trite law that in performing an assessment of that kind different judges may reasonably reach different conclusions. Appellate tribunals must always guard against the temptation to characterise as errors of law what are in truth no more than disagreements about the weight to be given to different factors” [18].
22. Bearing in mind the very high threshold of perversity, we do not accept this ground is made out. Not only do we consider that the weight applied is a matter for the Judge as emphasised in Herrera but we find his reasoning to be careful, logical and based on the appropriate test in MY (Suicide risk after Paposhvili).
23. Finally, we note that Mr Winter suggested there was an error in Professor MacPherson’s report because he says the appellant had not had contact with medical services. This is the first time this point has been raised and should have been raised before the fact-finding tribunal. As noted above there is every indication that the Judge considered all of the evidence fully and we note that the expert states that he had 155 pages of notes and clinical reports and that the appellant is on a waiting list to access services [220]. Whether or not the expert has made an error does not undermine the weight the Judge placed upon it based on his reasons at [25].
24. From [5] of the decision it is evident the judge was well aware of the purpose of the Macpherson report and that the appellant not only relied on evidence dated from 2022, as to his active/current engagement with the medical profession (to contradict that recorded by Professor Machpherson that he was not so doing) but was not at the hearing to explain his current, if any, engagement. On this basis we fail to understand how the Judge could be criticised for his approach. The hearing took place in January 2024 and as the Judge finally concludes at [37] the ‘up-to-date medical evidence’ did not support the appellant’s claims.
25. As counselled in HA (Iraq) [2022] UKSC 22, we exercise “ judicial caution and restraint” in considering whether to set aside a decision of a specialist fact finding tribunal even if we may have reached a different conclusion [72]. We do not accept the submissions made and find that the Judge appropriately weighed up all of the evidence, gave reasons why he preferred one expert over another and set out clearly why he reached the conclusion on the Article 3 assessment in the way that he did.
Notice of Decision
26. The decision of the FtT contains no material error of law and the decision will stand. The appellant’s appeal remains dismissed.

V Rae-Reeves

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
27 February 2025