Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005042

First-tier Tribunal No: PA/55122/2024
LP/06149/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 10 March 2025

Before

UPPER TRIBUNAL JUDGE GLEESON
DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

MM
[ANONYMITY ORDER MADE]
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Clita Johnrose (instructed by Jackson Lees Group Ltd)
For the Respondent: Ms Susana Cunha (Senior Home Office Presenting Officer)

Heard at Field House on 10 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and her family members are 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 and her family members. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This is an appeal by the appellant against the decision of the First-tier Tribunal dated 4th September 2024, in which the appellant’s protection appeal was dismissed. There was no separate human rights appeal.

2. In summary the appellant’s case is that he is a Christian and a national of Egypt. He met a Muslim girl whilst studying at university, which developed into a sexual relationship. The appellant’s house was raided by the girl’s family, but the appellant managed to escape. The appellant heard that her family were looking for him and threatened to kill him. The appellant was supported by his church to move location. The appellant was arrested and detained and beaten by prisoners and guards. After two months he was released with the help of a solicitor arranged by the church.

3. He moved to another location and was detained and released again all with the assistance of the church. The church assisted him in applying for a student visa to enter the United Kingdom. He entered the United Kingdom on 24 March 2022 and claimed asylum on 4 April 2022. The appellant fears his ex-partner’s family and the police in Egypt because he refuses to change his religion and has come to their adverse attention.

4. The Judge did not find the appellant to be a credible witness, and it is the Judge’s approach to the assessment of the appellant’s evidence and the conclusions drawn that are challenged in this appeal before the Upper Tribunal.

Summary of grounds

5. Ms Johnrose for the appellant relied upon six grounds of appeal. Grounds 1, 2, 3 and 6 raise concerns about the Judge’s approach to the assessment of the appellant’s credibility in the context of it being accepted that he has a diagnosis of the PTSD and was treated as a vulnerable witness. In summary, the complaint is that the Judge formed a negative view of the appellant at the outset and demonstrated a propensity to disbelieve him, failed to apply the Joint Presidential Guidance Note No.2 of 2010, Child vulnerable adult and sensitive appellant guidance (“Joint Presidential Guidance on Vulnerable Witnesses”), and failed to take account of evidence that demonstrated the appellant’s difficulties and explanations. Ground 4 alleges that the Judge failed to take account of an answer at interview and post-interview corrections. Ground 5 is an allegation of procedural unfairness in raising new adverse issues in the determination that the appellant had no opportunity to address.

6. There was no rule 24 response, but it was confirmed by Ms Cunha that the respondent resisted the appeal. We heard submissions on behalf of both parties in respect of all grounds of appeal.

Submissions

Grounds 1, 2, 3 and 6

7. Ms Johnrose for the appellant took us to paragraph 12 of the determination where the Judge detailed the vulnerability of the appellant as a preliminary issue. In summary, the Judge had been informed that the appellant had developed a migraine on the morning of the hearing and had not slept the previous night and that he might need breaks. The Judge made enquiries with the appellant about the nature of his headache and any medicine that he took for it. Following a somewhat convoluted exchange the Judge established that the appellant was not prescribed any separate medication for headaches. The Judge concluded, on this preliminary issue that “the appellant was being deliberately obtuse” but notwithstanding that the appellant “may have been less than truthful on this point”, the Judge noted his PTSD diagnosis and continued to treat him as a vulnerable witness and made it clear he should ask for a break when needed.

8. Ms Johnrose contends that paragraph 12 demonstrates that the Judge had formed an adverse view of the appellant before he had begun to give evidence on the substantive claim and this infected the assessment of credibility throughout.

9. Whilst she accepted that the Joint presidential Guidance on Vulnerable Witnesses had been referred to in the determination, it is said that in practice the guidance was not applied. Ms Johnrose’s focus was on the appellant’s PTSD diagnosis and paragraphs 10.3 and 15 of the guidance about assessing evidence, rather than any complaint about the procedural aspects of the hearing. She submitted that there was only one aspect of the appellant’s evidence where the Judge identified that he had given varying accounts at paragraph 55.

10. Ms Johnrose contends that the Judge has not given proper consideration to the medical report of Dr Ghosh and has disregarded the symptoms the appellant was suffering from such as issues with memory and recall.

11. Ms Cunha for the respondent submitted that the Judge had not just made passing reference to the Joint Presidential Guidance on Vulnerable Witnesses but had applied it throughout the hearing. There is no suggestion that the Judge’s approach was insensitive during the hearing. Although the Judge was sceptical about the migraine, the appellant appears to have been given the benefit of the doubt (paragraph 41).

12. She pointed out that the post-interview representations did not raise any issue about the conduct of the asylum interview. The Judge attached weight to the interview but also took the appellant’s concerns with the interview into account.

13. Ms Cunha submitted that there was nothing in Dr Ghosh’s report that dealt with the concerns raised by the Judge about contradictory accounts being given. The Judge considered the report holistically together with the other evidence.

14. In relation to grounds 4 and 5, Ms Johnrose emphasised that there was a failure to take account of material evidence in the interview and a failure to put issues of concern identified at paragraphs 29 to 30 of the determination to the appellant for an explanation which amounted to unfairness.

15. Ms Cunha’s submissions in response to these grounds were that the Judge had not ignored relevant evidence but had rather found the appellant’s evidence not credible and plausible. The Respondent’s Review highlighted the inconsistency in the appellant’s evidence between his statement and asylum interview about whether he continued studies and exams online or whether someone attended his exams in his place (paragraph 17). Furthermore, the Review also raised the issue about the lack of explanation for absent evidence and the absence of evidence from the Church who were helping him (paragraph 19). Therefore, the appellant was on notice and ground 5 is unfounded. In any event, the Judge was entitled to expect the appellant to produce relevant documentary evidence that should be available to him.

16. In her final reply, Ms Johnrose contended that the Respondent’s Review did not raise all the new concerns relied upon by the Judge and not put to the appellant. She accepted that the appellant may have given some inconsistent evidence, and it was open to the Judge to consider this but that her overarching point was that the Judge had taken against the appellant from the outset.

17. We reserved our decision.

Conclusions

18. In reaching our conclusions we have taken account of the general principles regarding the restricted jurisdiction of the Upper Tribunal to errors of law set out in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at §26.

19. We do not accept that there is any material error of law identified in grounds of appeal for the following reasons.

Ground 1

20. We reject the contention that the Judge took an adverse view of the appellant in the preliminary issue regarding his headache that was carried through to the assessment of his credibility on the core issues of his claim. The Judge explicitly limited their conclusions to that particular point (paragraph 12) and in any event proceeded to treat him as a vulnerable witness. There is no evidence of pre-determination within the Judge’s conclusions on the substantive issues. The Judge even accepts that the appellant “may well suffer headaches” (paragraph 34) but reasonably concluded, due to a complete lack of any medical evidence on the point, that they were not at the level of seriousness that would prevent the appellant from remembering basic details.

Ground 2

21. We reject the contention that the Judge failed to apply the Joint Presidential Guidance on Vulnerable Witnesses. The Judge explicitly stated that the appellant was to be treated as a vulnerable witness in accordance with the guidance (paragraph 11). The Judge made appropriate enquiries about the nature of the appellant’s reported ill-health and any medication that may alleviate his symptoms on the morning of the hearing. The Judge accepted that the appellant had a PTSD diagnosis and should be treated as a vulnerable witness. The Judge also confirmed that the appellant could have breaks when needed, which was the only adjustment to the hearing requested by his representative.

22. Paragraph 10.3 of the guidance states:

“10.3 Assessing evidence
Take account of potentially corroborative evidence
Be aware:
i. Children often do not provide as much detail as adults in recalling experiences and may often manifest their fears differently from adults;
ii. Some forms of disability cause or result in impaired memory;
iii. The order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability;
iv. Comprehension of questioning may have been impaired.”

23. Paragraph 15 of the guidance states:

“The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered the identified vulnerability had in assessing the evidence before it and thus whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof. In asylum appeals, weight should be given to objective indications of risk rather than necessarily to a state of mind.”

24. We are satisfied that the Judge applied this guidance in practice and throughout their assessment of the evidence and in reaching their conclusions. The Judge’s overarching reasons for finding the appellant’s credibility damaged is due to varying accounts rather than an inability to remember details at all (paragraphs 21, 22, 24, 25, 26, 29, 55,56 and 57). The Judge specifically accepted that the appellant’s memory maybe be impaired but that did not account for differing accounts given (paragraph 25). The varying accounts all related to the core of the appellants claim.

25. The Judge gave careful consideration to the expert report of Dr Ghosh as follows (paragraph 55-56):

“PTSD is real and I recognise it as such. Dr Ghosh can only make findings based on her knowledge and experience. The primary source of information was the appellant. I have no difficulty accepting that the appellant may be displaying aspects of PTSD and that he may have some problems with his memory, however, that is not the same as saying that his mind would change narratives significantly, depending on when and by whom the appellant is required to provide information. Doctor Ghosh was not asked to comment on why the appellant has given significantly different information and it may well be that this is to be expected with someone with PTSD. However this is a significant failing in this report in terms of its ability to assist the appellant in these particular circumstances.

56. Having assessed the evidence of memory overall, I found that potentially this could account for some of the appellants noted comments, however it does not address different narratives for the same event and I find that if the appellant was so concerned about his memory then it is something I would have expected him to discuss with his GP and for a referral to a memory clinic to be arranged. I cannot avoid two things, firstly the fact that the appellants memory seems to have improved all be it with changed details, and secondly with such a claimed poor memory then it's difficult to see how he would have been able to provide the witness statement he did, and difficult to see how he would have been able to the provide representations on his interviews.”

26. In our view this demonstrates a balanced and sensitive consideration of the evidence in accordance with the Joint Presidential Guidance on Vulnerable Witnesses and Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367.

Grounds 3 and 6

27. Contrary to what is suggested in the grounds, the Judge was expressly aware of the apparent difficulties raised by the appellant in the interview (paragraphs 41-42). The Judge dealt with the conduct of the Home Office interview in light of the appellant’s repeated complaints of headache and dizziness. The Judge accepted that if the respondent had ignored these comments or the record showed the appellant had been pressurised or persuaded to continue, he would have accepted that the interview should have been discontinued. However, the Judge properly notes that the appellant was asked about his welfare and offered the opportunity to reschedule but he declined.

Grounds 4 and 5

28. We do not accept that there was any unfairness identified in the Judge’s decision for failure to take relevant evidence into account or to put matters to the appellant for an explanation. The appellant refers to question 189 of the asylum interview as relevant evidence that the Judge did not take into account. At its highest, the question and answer might shed some light on the issues of threats, but it is by no means conclusive:

“Did you ever receive any verbal threats from Mina’s family in relation to the relationship you were in?

In general or before the raid?

**In general**

Yes”

29. However, the answers to questions 190-194 that follow, all relate to threats received in detention. Therefore, there was barely any evidence at all that the appellant had received any threats prior to those received in detention. As such, the Judge was entitled to find that there were no threats made to the appellant prior to detention.

30. The appellant refers to the post-interview representations as evidence that would have affected the Judge’s credibility conclusions at paragraph 29. However, the appellant’s clarification in the post-interview representations do not resile from the suggestion that someone else attended exams on his behalf but rather he was not involved in arranging it:

“In relation to Q112 “client advises that he did not arrange for someone to attend on his behalf and was not involved with this”

In relation to Q113 “the client advises that there was a lot of students taking exams and the teachers would not be able to memorise all the student”

Note Q111-117 – A heard that someone else was attending exams instead of him.”

31. We do not accept that the Judge failed to take these representations into account just because there is no express mention to them on this issue. In any event, the point the Judge was making at paragraph 29 is that the appellant had given two different accounts, one that he had continued to study and sit exams online and the other that someone else had taken the exams for him and that both accounts could not be true. The post-interview representations would have no impact on this conclusion.

Ground 5

32. The appellant was on notice that his credibility was not accepted on any issue and that the burden was on him to prove his case. The Respondent’s Review specifically raised the issue of lack of evidence. The Judge was entitled to have regard to an absence of evidence that should be readily available (paragraph 36), see TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40 at §16. The Judge properly notes obvious key lines of inquiry that the appellant failed to make (paragraphs 36-40).

Error of law conclusions

33. We are satisfied that there are no material errors of law identified in the grounds of appeal.

Notice of Decision

34. The appeal is dismissed.

35. The decision of the First-tier Tribunal stands.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 February 2025