Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004422

First-tier Tribunal No: PA/50340/2023
IA/00919/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GILL

Between

M.R.
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Afzal, instructed by Ilas Solicitors
For the Respondent: Mr Thompson, Senior Home Office Presenting Officer

Heard at Field House by CVP on 12 March 2025

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.

DECISION AND REASONS

1. The appellant appeals, with permission, against the decision of First-tier Tribunal Judge Prudham (‘the judge’) dated 8 June 2024 and heard on 31 May 2024. The judge dismissed the appeal on all grounds relating to the asylum, humanitarian protection and human rights claim. Permission to appeal was granted by the Upper Tribunal on 2 October 2024 and was not restricted to any grounds.

Background

2. The appellant is a citizen of Pakistan and arrived in the UK on 24 January 2008. On 6 March 2015 he applied for leave to remain on the basis of family/private life. This appeal was refused on 14 October 2015. Thereafter, the appellant claimed asylum on 6 October 2015, which was refused on 11 March 2016. On 16 September 2016 the appellant’s appeal was dismissed by Judge Grimes sitting in the First-tier Tribunal (‘the 2016 determination’). On 9 March 2020 the appellant lodged further submissions which were refused as set out in the Reasons For Refusal Letter (‘RFRL’) dated 5 January 2023. The appellant appealed this decision to the FtT and the appeal was dismissed by the judge. On 10 September 2024 permission to appeal to the Upper Tribunal was refused by the First-tier Tribunal (‘FtT’). The appellant renewed his application and submitted further grounds to be read ‘in tandem’ with the original grounds of appeal. Permission to appeal was granted by the Upper Tribunal on 2 October 2024.
3. It is the appellant’s case that he is a gay man who until 2007 was living with his family in Pakistan and hiding his sexuality. In 2007 the appellant’s son discovered the appellant with another man, following which the appellant was abused by his family. As a result, the appellant travel to the UK. He claimed asylum in 2015 but states he was too embarrassed to tell his lawyer about his sexuality as the lawyer was a fellow Muslim. The appellant states that his family in Pakistan have disowned him and he cannot return to Pakistan due to his sexuality. It is the appellant’s case that he also suffers from health conditions, which include suffering from depression and anxiety as well as suicidal ideation. These issues were in dispute at the FtT, as the respondent did not accept that the appellant’s account that he is a gay man. Credibility was therefore a key issue in dispute.

Discussion

4. I was provided with a composite bundle filed by the appellant, the appellant’s skeleton argument dated 27 February 2025 (‘ASA’), and the 2016 determination was provided by the respondent. Having heard submissions from both parties I reserved my decision, which I now set out below. I have referred to the relevant evidence and submissions in my discussion below.
5. Mr Afzal confirmed that he was not pursuing any arguments in relation to the judge’s application of the case of Devaseelan and I am satisfied that this concession is properly made as the judge applied the principles in Devaseelan correctly to the earlier 2016 decision, using that as his starting point.
6. Mr Afzal relied on the ASA which sets out the issues in this appeal as follows:
“The Appellant identifies the following material errors of law in the FtT’s decision:
a) Failure to Properly Engage with and Assess Evidence:
The FtT failed to conduct a holistic evaluation of the evidence, particularly the expert psychological report by Dr. Mary Ross.
b) Incorrect Standard of Proof
The FtT appeared to apply a standard higher than the "reasonable degree of likelihood" test contrary to well-established asylum law principles.
c) Flawed Credibility Assessment:
The FtT's approach to credibility placed undue weight on minor inconsistencies, without properly considering cultural, psychological, and trauma-related factors.
d) Internal Relocation & Sufficiency of Protection Misapplied:
The FtT failed to conduct the proper analysis under Januzi v SSHD [2006] UKHL 5 and HJ (Iran) v SSHD [2010] UKSC 31, and incorrectly concluded that the Appellant could relocate or rely on state protection.
e) Article 3 and Article 8 ECHR
The FtT wrongly concluded that the Appellant's risk upon return (including mental health vulnerability) did not engage Article 3, and failed to properly apply AM (Zimbabwe) [2020] UKSC17.

The FtT's evaluation of paragraph 276ADE(1)(vi) and Article 8 was inadequately reasoned.”

a) Failure to Engage with Material Evidence - Expert’s Psychological Report and c) Flawed Credibility Assessment

7. I will address the issues raised at (a) and (c) in the ASA together, as they are closely linked.
8. It was submitted on behalf of the appellant that the judge gave only cursory consideration to the appellant’s mental health despite clear and compelling findings in the expert’s psychological report. The report identifies acute anxiety, depression, and suicidal ideation, noting that these conditions are significantly exacerbated by the appellant’s fear of return to his home country. The appellant relies upon the case of Mibanga v SSHD [2005] EWCA Civ 367, stating that the judge must not form adverse conclusions on credibility without first undertaking a holistic assessment of all the evidence, including the expert’s reports. It was submitted that in failing to afford substantive weight to the expert’s detailed assessment of the appellant the judge contravened the principle in Mibanga.
9. It was further submitted that the appellant’s delayed disclosure of his sexual orientation ought to have been evaluated in the context of shame, stigma, cultural barriers and religious considerations prevalent within his community and psychological factors; the judge having failed to consider this context.
10. In respect of the judge’s credibility findings, it was argued that the judge failed to take a holistic approach, placing too much weight on minor inconsistencies particularly in light of the appellant’s psychological distress and high levels of stress, as supported by the expert’s report, to which the judge had attached little weight (this is discussed in more detail below). Accordingly, it was argued the judge failed to first consider the appellant’s explanation for any inconsistencies and the broader evidence base before dismissing the claim.
11. Mr Thompson, on behalf of the respondent, submitted that the judge had engaged with and had regard to the conclusions of the expert’s report, as set out at paragraphs [27] – [28] of the decision. He argued that the judge provided well-reasoned arguments for discounting the expert’s report, namely the fact that the expert did not review the appellant’s GP records which the judge determined had contradicted the appellant’s account on key aspects of his account. It was submitted that this was not a minor inconsistency as paragraph [1] of the expert’s report indicates that the instructions to the expert stated the appellant had ‘…fled Pakistan as a result of his sexual orientation. [The appellant] left behind a wife and son and extended family; he has no contact with his family’; this information, it was submitted, both informed the expert’s assessment of the appellant and undermined the psychological assessment. Mr Thompson argued that the judge was entitled to reach the findings he did regarding the weight to be placed on the expert’s report.
12. Mr Thompson argued that this was not a case of a Mibanga error, given that the judge had carried out a sufficiently detailed assessment. Mr Thompson submitted that the appellant’s submissions amounted to no more than a disagreement with the judge’s findings regarding the weight the judge attached to the expert’s report, rather than an error of law.
13. I have considered the judge’s decision with care and remind myself that I must exercise appropriate judicial restraint before interfering with it, bearing in mind the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462. The judge must consider all the material evidence, although the judge need not discuss it all in his judgement. The weight to be attributed to evidence is generally one for the FtT. In respect of expert’s evidence, paragraph [61] of MS (Zimbabwe) [2021] EWCA Civ 941 states:
“It is trite that a tribunal of fact is not bound to accept expert evidence if it disagrees with that evidence. That is so even if the expert witness is not cross-examined. The tribunal of fact is entitled, and obliged, to examine the analysis and reasoning in the expert's report. It is obliged to reach its own conclusions on any questions of fact, or mixed questions of fact and law, which it must decide in order to determine a case. It may accept guidance from an expert on those questions, but is not obliged to accept it.”
14. The FtT in this case was not bound to accept Dr Ross’s evidence. A central aspect of the expert’s report related to the assessments and psychological tests carried out of the appellant. The report states:
“Individuals completing the psychological tests are observed to assess if there is any exaggeration of responses or minimisation of responses to items on the tests. Observations of any attempts to falsify results are also made. The tests are never used alone out with the context of the lengthy assessment consultation and the results of the psychological tests are always cross-checked with the results of the psychological assessment to ensure that the results are consistent with both the psychological presentation and the medical records.” (emphasis added)
15. The judge considers the expert’s report at [27] and [28], and concludes:
“I consider the failure by Dr Ross to consider these [GP] records a significant failing in her evidence…In general I would have expected Dr Ross to have considered the appellant’s medical records to establish the appellant’s medical history as well as his treatment and medication. This would assist in determining any diagnosis as well as address issues of causation. In this instance Dr Ross failed to consider the GP records. The inconsistencies between what is in the [GP] records and what the appellant told Dr Ross, significantly affected the weight that I could attach to the report of Dr Ross and I found that in the circumstances I attached little weight to her report.”
16. The inconsistencies between the appellant’s account and GP records, identified by the judge, can be summarised as follows:
a. The appellant informed the expert that he was unable to obtain appointments with his GP and had not been offered psychological support, the judge determined that this was contradicted by the GP records which showed he was a regular attender and was offered an appointment with a psychologist on 02/03/23 but failed to attend,
b. The absence of reference to suicidal ideations in the GP records,
c. The absence of reference in the GP records of fear of returning to Pakistan on the grounds of sexuality,
d. The GP entry on 14/02/23 indicates the appellant told his GP he was suffering from low mood as he was unable to see his family and hoped to have them with him in the UK, whereas the expert
17. I agree with the submissions made by Mr Thompson that the instruction to the expert included an assertion that the appellant had had no contact with his family, and this informed the assessment of the appellant. The GP entry of 14/02/23 does appear to have been put to the appellant during the hearing, see [15]. The respondent also made submissions regarding the expert’s report being prepared without sight of the medical records, submitting that it limited the value of the report [19]. I am therefore satisfied that these issues were ventilated at the hearing.
18. The expert does not consider the appellant’s medical records, yet the report itself places importance on the medical records being a tool used to ‘ensure the results are consistent’. The judge was entitled to factor this into his assessment of the weight to be attributed to the expert’s report. I am therefore satisfied that the judge was entitled to place ‘little weight’ on the report, and this finding was not ‘plainly wrong’ or ‘rationally insupportable’, see: Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022).
19. This is not a case of a Mibanga error and agree with Mr Thompson’s submissions that the judge carried out a sufficiently detailed, reasoned assessment of the expert’s report, concluding that he could place little weight upon it and then went on to consider credibility having regard to all of the evidence. At [26] there is consideration of the 2016 determination as the starting point, in which adverse credibility findings were made and in which the appellant makes no reference to his sexuality. At [29] the appellant’s witnesses’ evidence is considered and discrepancies noted. At [30] the judge sets out his reasons for concluding a ‘significant failing’ in the appellant’s explanation for failing to raise his sexuality at an earlier date, including considering the fact that it was only raised in 2020 after he was arrested and served with removal papers, which is treated with ‘great circumspection’ apply the principles in Devaseelan. The judge does consider cultural context and the appellant’s explanation for the delay at [30] but provides adequate reasons for rejecting this explanation. At [31] the judge addresses the inconsistencies in the appellant’s account that his family had disowned him. At [32] the judge finds, having considered the evidence ’in the round’, that the appellant’s account of his sexuality is manufactured for the sole purpose of claiming asylum. The judge was entitled to make this finding.
20. Accordingly, (a) and (c) of the ASA do not disclose any errors of law.

b) Incorrect Standard of Proof

21. Mr Afzal submitted that the judge had applied the incorrect standard of proof in deciding the appellant’s asylum claim. It was submitted that the judge’s reasoning and language strongly indicated that the judge may have applied a higher threshold akin to the balance of probabilities. However, when invited to identify which paragraphs of the judge’s decision which supported this submission, Mr Afzal was unable to do so.
22. The respondent argued that the judge had identified and applied the correct standard of proof at [6] and there was no evidence to suggest otherwise. I agree with this submission; I can see nothing in the decision that indicates that the judge applied the wrong standard of proof and Mr Afzal was unable to point to any paragraphs to support this argument. Accordingly, (b) in the ASA does not disclose any errors of law.

d) Internal relocation & sufficiency of protection misapplied and e) Article 3 and Article 8 ECHR
23. As stated above the judge’s approach to the expert’s report and credibility assessment in this case did not disclose any error of law. Nor did the finding the judge reached in respect of the appellant’s account that he is gay. The judge provided adequate reasons in making the findings. There was therefore no error in law in the judge’s approach to internal relocation, sufficiency of protection, Article 3 or Article 8 as the judge had found against the appellant on these key issues in dispute. Furthermore, it was not in dispute that if the judge found that the appellant was a gay man then relocation and sufficiency of protection were not available in Pakistan [18]. However, the judge did not find that the appellant was a gay man. Therefore, (d) and (e) of the ASA do not disclose any errors of law.

Notice of Decision

24. The decision of the First-tier Tribunal did not involve an error of law, and I dismiss this appeal.

A. GILL

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 May 2025