Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER
Case No: UI-2024-001696

First-tier Tribunal No: PA/50882/2023
IA/00847/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 May 2025

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

RT
(ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr D Katani, Katani & Co
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Hearing Centre on 28 January 2025
Decision and Reasons
Introduction
1. The appellant is a national of Namibia. Her appeal against the respondent’s decision of 19 January 2023 to refuse her claim for international protection and on human rights grounds was dismissed by First-tier Tribunal Judge Cowx (“the judge”) for reasons set out in a decision promulgated on 7 February 2024.
2. The appellant claims the judge erred in law on two grounds. First, the judge failed to take account of the fact that Dr Ross concluded that the appellant is at risk of re-traumatisation, not solely on account of ‘isolation’, but also for a number of other reasons including reminders of the sexual abuse experienced by the appellant, and other life events she experienced in Namibia. Second, the appellant claims it was ‘procedurally unfair’ for the judge to proceed on the basis that Dr George Karewaivanane is not an expert witness when no concerns had been raised regarding his expertise by the respondent or during the hearing.
3. Permission to appeal was granted by Upper Tribunal Judge Chamberlain on 14 May 2025. She said:
“2. In relation to Ground 1, it is arguable that the Judge has erred in his assessment of Dr. Ross’ report. While he based his opinion in part on the fact that the appellant would not return to her grandmother, he had also stated that other factors would increase the risk of re-traumatisation. It is arguable that the Judge has not assessed this part of Dr. Ross’ evidence or given adequate reasons for rejecting it.
3. I consider Ground 2 to have less merit. The Judge gave reasons for not accepting the expertise of Dr. Karekwaiavanane. He considered his qualifications and experience, and also considered the contents of the report and the material cited by Dr. Karekwaiavanane….”
The Hearing of the Appeal Before Me
4. Mr Katani adopted the grounds of appeal. He submits the judge referred at paragraph [5.22] of the decision to the opinion of Dr Ross that there is a significant risk of re traumatisation if the appellant is returned to Namibia. At paragraph [6.2] of the decision the judge referred to the appellant’s ‘paternal grandmother’ as being supportive of her.
5. Mr Katani submits that the social support referred to by the judge is a relevant factor but should have been weighed by the judge alongside all the other relevant factors referred to by Dr Ross. The appellant accepts she speaks to her grandmother on a daily basis. In her witness statement, the appellant confirms her grandmother is now old and cannot leave the house much, and if the appellant returned to live with her, she would “have to stay in hiding at her house”. Mr Katani submits the appellant’s case is that although some emotional support may be available to the appellant from her grandmother, that is not a complete protective factor and the judge should have addressed the other points made by Dr Ross in the report.
6. As far as the second ground of appeal is concerned, Mr Katani submits the expertise of Dr George Karewaivanane to express the opinions set out in the report was not challenged by the respondent. He accepts the respondent is entitled to make submissions as to the weight to be attached to the expert evidence, but submits no issue was taken at the hearing. The respondent accepted, implicitly or otherwise, that Dr Karewaivanane was an expert. If the judge had reservations or concerns, Mr Katani submits they should have been raised as a preliminary matter to enable the appellant to consider adducing further evidence.
7. Mr Katani submits that although the judge referred to the opinions expressed by Dr Karewaivanane and considered the background material set out in the CPIN, the judge considered Dr Karewaivanane’s input as simply ‘commentary’. In any event, he submits the judge did not adequately address the opinions expressed regarding ‘internal relocation’.
8. In reply, Mr Mullen adopted the Rule 24 reply dated 23 May 2024 that has been filed by the respondent. He submits that it is clear from paragraph [5.17] of the decision that the judge concluded that he could only ‘give little weight’ to the opinions of Dr Karewaivanane, having considered the material relied upon by him alongside the CPIN. The evidence of Dr Karewaivanane was not therefore altogether disregarded and the judge reached a conclusion open to him on the evidence before the Tribunal. Mr Mullen submits the judge was entitled to say that Dr Ross proceeds upon the premise that there would be a lack of support available to the appellant on return to Namibia, and to reject that claim. The weight to be attached to the overall opinions expressed by Dr Ross was a matter for the judge and there is no requirement for a judge to address every nuance in the evidence. Mr Mullen submits the judge gave adequate reasons for dismissing the appeal.
Decision
9. I take each of the grounds of appeal in turn. It is now well established that the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed or another judge can produce a better one. Baroness Hale put it in this way in AH (Sudan) v SSHD [2007] UKHL 49 [2008] 1 AC 678), at [30]:
"Appellate courts should not rush to find such misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently."
10. In Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 W.L.R. 48, in dismissing an appeal against findings of fact, the Court of Appeal emphasised that it was not for an appeal court to come to an independent conclusion as a result of its own consideration of the evidence; the question is whether the trial judge's conclusion was rationally insupportable.
11. The judge summarised the appellant’s claim at paragraph [2.2] of his decision. The appellant attended the hearing and her evidence is set out in paragraphs [5.1] to [5.10] of the decision. The judge referred to the evidence of Dr Ross at paragraph [5.22] of the decision noting in particular, the opinion of Dr Ross that the appellant presents with symptoms of anxiety and depression, but these do not meet the threshold for clinical anxiety or clinical depression. The judge noted that examination also indicated the presence of a mild mood disturbance, that exists in the context of an adjustment disorder with both anxiety and depression. The judge said:
“6.3 Dr Ross's report suggests that [the appellant] would no longer be supported by her grandmother, but I have not seen or heard convincing evidence on this point. On the contrary, the grandmother has been caring for [the appellant’s] child since [the appellant] left and she maintains daily contact with her. They remain very close. I am satisfied the grandmother would welcome [the appellant] back into her home again if necessary. She will be safe there in my view and the grandmother would offer her any emotional support Dr Ross felt might be absent if returned to Namibia.
…
6.7 Turning to the Article 8 family life claim, it is said [the appellant] would face significant, obstacles to integration, namely she will not be able to access mental health care. However, [the appellant] does not currently suffer from what might be described in lay terms as serious mental health problems. I have seen no evidence of serious long-term impairment. She has been diagnosed with a mild mood disturbance which is not serious enough to require medication or counselling. Dr Ross is naturally concerned [the appellant’s] condition may deteriorate, but suggests this risk is heightened by the absence of family support and I am satisfied she will have the continuing support of her grandmother, who brought her up and with whom she is still very close.”
12. In order to put the judge’s findings and conclusions in context, it is necessary to look at the report of Dr Ross as a whole. Dr Ross records the appellant was assessed on 2 October 2023 and that the results of the psychological assessment and the psychological tests administered, indicate that the appellant’s presentation fulfils the DSM-5 diagnostic criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood 309.28. Dr Ross refers to the ‘Diagnostic codes’ and lists by bullet points, a number of diagnostic factors that are relevant. Dr Ross states:
“DSM-5 notes on page 278 that re-traumatisation occurs with subsequent exposure to repeated upsetting reminders and subsequent adverse life events and financial or other trauma-related losses.
The ongoing legal proceedings are causing subsequent exposure to repeated and upsetting reminders of the sexual abuse experienced in Namibia and this is causing re-traumatisation.
Further, any return to Namibia would be associated with subsequent exposure to repeated upsetting reminders, subsequent adverse life events and financial or other trauma-related losses and therefore there is a significant risk of re-traumatisation with a return to Namibia.
DSM-5 notes on page 278 that social support is a protective factor that moderates outcome after trauma.
If [the appellant] relocates to Namibia she would not be able to access support from her paternal grandmother or her father and this isolation would also increase the re-traumatisation.
…”
13. It is not necessary for a judge to deal expressly with every point raised in the evidence, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Whilst it is incumbent on a FtT to deal with the main arguments advanced it is not required to deal with every argument made to it. In Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 ("Fage") at [115] Lewison, LJ. said:
“…There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. …. “
14. Which points need to be dealt with and which can be omitted requires an exercise of judgment. On a careful reading of the report of Dr Ross, although it is correct to say that Dr Ross notes that upsetting reminders of the appellant’s past experiences, adverse life events and other losses point to a significant risk of re-traumatisation on return to Namibia, that must be read alongside “the notes on page 278 that social support is a protective factor that moderates outcome after trauma. To that end, Dr Ross proceeds upon the premise that the appellant would not be able to access support from her paternal grandmother or her father. However, the judge found, at [6.3] and [6.7] that the appellant’s grandmother would welcome the appellant back into her home again. As the judge said, “She will be safe there” and “the grandmother would offer her any emotional support Dr Ross felt might be absent” if the appellant returns to Namibia. The judge quite properly noted that Dr Ross is naturally concerned that the appellant's condition may deteriorate and that the risk is heightened by the absence of family support. However, the social support that would be available to the appellant is a protective factor that would moderate the outcome.
15. Reading the decision as a whole, it is in my judgment clear why, having considered the report of Dr Ross, the judge concluded as he did. The judge did not misunderstand the evidence and he did not disregard some important factor in the evidence. The decision is directed to the parties who are well aware of the issues involved and the arguments advanced. There is in my judgement no merit therefore to the first ground of appeal.
16. There is equally no merit in my judgment to the second ground of appeal. It is now well established that fairness generally requires that if the evidence of a witness is to be rejected, whether that is a witness of fact or an expert witness, the evidence should be challenged at the hearing. Here, Dr Karewaivanane provided a report setting out his opinions as to the availability of sufficient protection for the appellant in Namibia, the availability of mental health care and the possibility of internal relocation. The report of Dr Karewaivanane post-dates the decision of the respondent refusing her claim for international protection and therefore, for obvious reasons, it is not addressed in the respondent’s decision.
17. The burden rests on the appellant to establish her claim for international protection. The difficulty for the appellant here is that contrary to what is suggested in the grounds of appeal, in her review the respondent challenged the weight to be attached to the opinions of Dr Karewaivanane because he did not engage with the reasons set out in the respondent’s decision. The judge was entitled to have regard to the qualifications and experience of Dr Karewaivanane when reaching a view as to the weight that can be attached to the opinions expressed. The judge said at paragraph [5.17] of the decision that he attached little weight to the opinions of Dr Karewaivanane regarding ‘sufficiency of protection’ for two reasons. First, he is not an expert on such matters for reasons the judge set out in paragraph [5.15]. Second and in any event, the judge considered the background material relied upon by Dr Karewaivanane, alongside the background material set out in the CPIN. The judge gives perfectly adequate reasons for attaching little weight to the opinions expressed by Dr Karewaivanane and for preferring the background material set out in the CPIN. The judge addressed the evidence of Dr Karewaivanane regarding internal relocation at paragraph [5.21] noting the focus of the evidence was upon the availability of employment.
18. The weight to be attached to the various strands of evidence was a matter for the judge based upon his evaluation of the evidence as a whole. A fact-sensitive analysis of the evidence was required. I am satisfied that standing back, reading the decision as a whole, the judge's decision was based upon the evidence before the Tribunal. The findings and conclusions reached by the judge are neither irrational nor unreasonable, or findings that are wholly unsupported by the evidence. The judge reached a decision that was open to the Tribunal on the evidence.
19. It follows that I am satisfied that there is no material error of law in the decision of the FtT and I dismiss the appeal.
Notice of Decision
20. The appellant’s appeal to the Upper Tribunal is dismissed.
21. The decision of First-tier Tribunal Judge Cowx promulgated on 7 February 2024 stands.

V. Mandalia
Upper Tribunal Judge Mandalia

Judge of the Upper Tribunal
Immigration and Asylum Chamber

2 May 2025