Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005970

First-tier Tribunal No: PA/63918/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th April 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE GRAVES

Between

KK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Martin, Counsel, instructed by Ammal Solicitors
For the Respondent: Ms Mackenzie, Senior Home Office Presenting Officer

Heard at Field House on Wednesday 2 April 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
BACKGROUND
1. The Appellant appeals against the decision of First-tier Tribunal Judge Mill (“the Judge”) promulgated on 3 October 2024 (“the Decision”) dismissing the Appellant’s appeal against the Respondent’s decision, dated 24 November 2023, refusing the Appellant’s protection claim.
2. The Appellant is a national of Sri Lanka of Tamil ethnicity, who came to the UK in 2018 with leave to enter under Tier 5, valid to 27 February 2020, and worked here as a Hindu priest. The Appellant returned to Sri Lanka for a visit on 14 August 2019, coming back to the UK on 15 September 2019. On 18 February 2020 the Appellant claimed asylum, claiming that on 2 September 2019, whilst in Sri Lanka, he had been abducted from his home by unknown people, tortured and accused of association with the LTTE, and then released on payment of a bribe, on 11 September 2019. He then returned to the UK. His wife also came to the UK to join him on a visit visa and then overstayed her visa. The Appellant said their son had told them that unknown people then continued to visit the family home looking for him. He was therefore at risk on return.
3. The Respondent found the Appellant’s account was not credible. On appeal, the Judge also found the Appellant’s claim of arrest and detention not to be credible. He accepted that the Appellant was a Hindu priest and was Tamil, but did not accept that he had been arrested and detained or that he would be at risk on return for that or any other reason. The Judge relied on inconsistencies in the Appellant’s account, a lack of detail, issues with letters of support from the Appellant’s son, and a person described as a Justice of the Peace (“JP”) in Sri Lanka. The Judge also attached little weight to the medical evidence, which included letters from the Appellant’s GP, medical notes and a report from Dr B, a Consultant Psychiatrist with specialism in forensic psychiatric and scarring reports. For those reasons, the Judge dismissed the appeal.
4. The Appellant appeals the Decision on four grounds, summarised as follows:
Ground 1: the Judge has not considered core features of A’s claim and has not given due reasons for the consideration of the core features: in essence that the Judge failed to consider the Appellant’s detailed account of torture, and also failed to consider what would happen to the Appellant if he returned as a failed asylum seeker, in light of the Respondent’s CPIN.
Ground 2: the Judge has made has made irrational findings: this relates to the Judge’s reliance on an absence of a scarring report, which was not evidence that was ‘readily available’ and sets a dangerous precedent that scars from torture require a report. There may be a number of reasons why a privately paid expert could not be asked to do a further report. There was also reliance on the Appellant’s account at hearing of having to pay two bribes at the airport, and about his release, which was a plausible account. The Judge also relied on a purported inconsistency about the reason for the Appellant’s trip to Sri Lanka, but the Appellant explained in his witness statement that the interpreter made a mistake at the interview and the Judge had failed to have regard to this. Further, the Judge, in error, found the GP letters conflict with the GP medical notes, which was not a rational finding.
Ground 3: the Judge has erred in the assessment of A’s evidence in light of MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 : this related to the Judge relying on a lack of corroborative evidence, such as the absence of evidence from the Appellant’s wife, the lack of ID documents for the JP letter, a lack of documentary evidence about the purpose of the visit to Sri Lanka, the lack of transit documents and the absence of a scarring report.
Ground 4: the Judge has materially erred by not giving consideration to the approach set out in R v Lucas [1981] QB 720 with respect to the adverse credibility findings: this relates to the Judge making adverse credibility findings about other matters, but failing to consider the credibility of the torture account, which was a core component of the claim.
5. Permission to appeal was refused by First-tier Tribunal Judge Adio on 18 December 2024 in the following terms:
“2. The judge made a very clear finding that the Applicant’s claimed detention was not accepted and by inference that means that the judge did not accept that the Applicant was tortured. The judge noted that evidence from the justice of peace confirming the Applicant’s background and being an eyewitness to the Applicant being kidnapped and beaten, dragged and pushed into a white van. The judge noted that the first letter by the justice of peace dated 7th September 2023 refers to the Applicant’s incorrect name without explanation. The judge noted the Applicant was vague in his oral evidence about the justice of peace. The judge noted that although the expertise of [Dr B] has not been challenged, the judge notes the discrepancy between some of the observations of [Dr B] and the Applicant’s GP, particularly with regards to treating the Applicant with medications. The letter referred to by Counsel in the grounds is a later letter dated 8th August 2024 but does not give details of when the Applicant started medication.
3. The judge also noted that [Dr B’s] report refers to the Applicant suffering trauma in India, which is factually incorrect as the country is wrong. The judge was of the opinion that there has been some copy and pasting with regards to this report and that the terms of the report are vague and generic. The judge therefore attached little weight to the report. The judge also noted, for good reasons that there is an absence of a scarring report. The judge had therefore made a clear finding with regards to the claimed detention of the Applicant and torture in the manner that he had made it. This feeds into ground 2.
4. I find that the judge’s findings are entirely adequate and rational. That applies to ground 3 and 4 also. The judge gave comprehensive reasons as to why it was not accepted. The explanation given with regards to the marriage which was supposed to have taken place in Sri Lanka when the Applicant went back. With regards to the issue of corroboration the judge made it quite clear and directed himself correctly that whilst there is no requirement for corroboration, the position in the Applicant’s appeal is that there is a failure to provide relevant evidence where it would be readily available. This is why the judge noted that if the Applicant did have scars from torture he claims took place he would very likely have obtained a relevant report. The judge made comprehensive findings on the Applicant’s credibility. The judge noted that the Applicant failed to evidence the core of his asylum claim even to the lower standard and that he is not a reliable witness. The judge noted his wife, who is in the UK, who apparently witnessed the kidnap has not provided a witness statement nor given evidence and no explanation has been given for it. Again this is evidence which could reasonably have been given. The judge noted the Applicant failed to credibly evidence his account of being kidnapped and released. The judge found that the Applicant travelled peaceably to Sri Lanka in 2019 and returned to the UK with a common plan with his wife to seek to regularise their stay on a permanent basis in the UK. The judge noted the delay in the Applicant’s asylum claim. On the whole I find that the grounds do not raise an arguable error of law and that the grounds of challenge are without merit. Permission to appeal is therefore refused.”
6. On renewal of the application to this Tribunal, permission was granted by Upper Tribunal Judge Kamara on 23 January 2025 in the following terms:
“It is arguable that inadequate reasons were given by the First-tier Tribunal for rejecting the appellant’s detailed account of being subject to torture. It is further arguable that the judge required the appellant to corroborate many aspects of his claim and, in addition, arguably imposed too high a standard.”
7. The appeal comes before us to decide whether there is an error of law. If we determine that the Decision does contain an error of law, we then need to decide whether to set aside the Decision in consequence. If we set the Decision aside, we must then either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
8. We had before us a bundle numbered 1-132, containing the documents relevant to the appeal before us, and the Appellant’s and Respondent’s bundles before the First-tier Tribunal. We refer to documents in that bundle below as [B/xx].
9. Following submissions from Mr Martin and Ms Mackenzie, we reserved our decision, which we now give, with reasons. Mr Martin submitted that if we were persuaded that there was an error of law in the Judge’s decision, it should be set aside with no findings preserved, and the appeal should then be remitted to the First-tier Tribunal, because there will need to be a full de novo hearing of the appeal including findings of fact on all issues.
FINDINGS AND REASONS
Ground 1
10. The grounds assert that even were the Judge’s adverse credibility findings upheld, the Judge was in error because he failed to have any regard to the CPIN, and what that says about risk on return for the Appellant, if he were returned as a failed asylum seeker. We find that is not a fair representation of the Judge’s findings. In fact, the Judge directed himself [40] to the Respondent’s CPIN on medical care in Sri Lanka of July 2020, and to the CPIN on Tamil separatism of 2023, and to a report on a fact finding mission on treatment of Tamils and those with a perceived association with the LTTE of July 2016. It is therefore not accurate to say that the Judge did not have make any reference to the Respondent’s CPINs.
11. The Judge then set out in some detail, both the guidance in GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) and KK and RS (sur place normal activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) [at 41-43) and went on to apply the guidance contained in those decisions, as well as the country information contained in the CPINs, as well as considering the relevant risk factors when assessing potential risk on return [at 44 to 47]. The Judge found that the majority of the risk factors did not apply, since the claim was not credible, and so the Appellant, returning with his own passport, with no history of adverse interest, ‘will not come to harm’. That finding would be consistent with paragraph 16 of the headnote of KK and RS, which does not support there being a risk on return for returnees on the sole basis of being a failed asylum seeker. Mr Martin did not direct us to anything in the CPIN that the Judge failed to have regard to, that would support a finding that the Appellant would be at risk solely on the basis of being a failed asylum seeker. We therefore find this paragraph of the grounds was misconceived.
12. Ground 1 also relies on the Judge’s failure to have any regard to the detailed account of the Appellant’s torture in detention, contained in his witness statement, which was a core component of his claim. We note that the Judge makes explicit reference to having considered both witness statements, as well as to the interviews and oral evidence, as well as other evidence [at 20]. Importantly, the account of torture features in the main interview, the witness statements and also in the medical evidence, all of which the Judge said he had considered.
13. The Judge went on to make adverse credibility findings about the account of what happened to the Appellant in Sri Lanka, to the extent that the Appellant ‘fails to evidence the core of his asylum claim even to the lower standard of proof’ because ‘he is not a reliable witness’. Further the Judge found that he ‘has failed to credibly evidence his account of being kidnapped and released’ and that he travelled to Sri Lanka with the intention of returning with his wife, to then seek to regularise their stay here on a permanent basis [at 39]. Again [at 46] the Judge found the Appellant had never been accused of any links with the LTTE or faced unwanted attention from state or non-state actors. We find that having made findings that the Appellant’s account of what happened to him in Sri Lanka was not reliable or credible and his claim was fabricated for the purposes of securing leave, that it reasonably follows from that finding, that the account of torture was also rejected on the same basis. It is therefore not a fair representation of the Judge’s decision, to say that he failed to make any findings on a core element of the claim.
14. We also give consideration to the submission that the Judge’s credibility assessment was defective because the paragraph of the statement that sets out an account of torture is not specifically referred to in the Decision. As to the credibility assessment, we note the Judge gives numerous reasons for finding that the Appellant’s claim was not credible. He appropriately directed himself to consider all of the evidence in the round [at 18], and to assess documentary evidence together and in light of findings about other evidence [at 19], which included both witness statements and the interviews, in which the Appellant gave an account of his kidnap, torture and release [at 20]. He also appropriately directed himself not to require corroborative evidence of the Appellant’s account [at 36] and to guidance relevant to an assessment of credibility in the Immigration Rules, legislation and court authority [at 16 to 19].
15. We found the Judge’s assessment did not rely solely on, for example, peripheral matters, or plausibility, but instead detailed reasons were given for findings on the majority of the evidence before him. The Judge is required to give adequate reasons to support his conclusions, but there is no requirement for him to specifically reference every issue or piece of evidence provided he has considered all of that evidence.
16. Examples of reasons for adverse credibility findings included internal inconsistencies in the Appellant’s accounts, between the interviews, and oral evidence at hearing. Also external inconsistencies between the Appellant’s own evidence and the documents he relied on. The Appellant said at interview that he travelled to Sri Lanka to attend his daughter’s wedding, but produced a letter from a JP to say he had gone to attend his son’s wedding. This was an important inconsistency because the Appellant claimed at hearing that the JP lived next to him for many years, knew the family well and had been at that wedding. It is said by the Appellant that the Judge failed to have any regard to the Appellant’s explanation in his appeal witness statement that the Home Office interpreter would have been responsible for this inconsistency. The witness statement only addressed one inconsistent answer at interview, but in the Decision [at 24] the Judge had regard to the fact that the Appellant was asked about the daughter’s wedding at interview at question 8, again at question 21 and again at question 26, and so the discrepancy features not once, but three times in the interview, both in questions asked, but also in the Appellant’s answers to those questions. The Judge found the Appellant did not ‘correct the interviewer or interpreter’ over these three questions, and so had been ‘unable to provide a credible explanation’ for the inconsistency [at 24].
17. The Judge’s finding about that inconsistency was also not that there was no explanation, rather that there was no credible explanation. We consider it was open to him to place weight on a repeated inconsistency, which was not corrected at the interview, or for some months, until after the decision raised it, when the witness statement was prepared for hearing. Nor was the Appellant’s assertion the inconsistency was the responsibility of the Respondent’s interpreter supported by, for example, any evidence to suggest the words in Tamil for daughter and son would be easily confused in interview, or by any transcript of the audio recording of the interview to suggest the interpreter did make an error, which, as set out in the interview record, could be obtained from the Respondent on request. In the absence of evidence that might be readily available to support an assertion, it was open to the Judge not to accept that assertion amounted to a credible explanation.
18. Even if a failure to mention the explanation in the statement did amount to an error, we also find it is not material, because this formed only one component of the credibility assessment. The Judge also relied on inconsistent evidence about the kidnapping, in that the Appellant told the Respondent in both interviews that he was kidnapped by ‘unknown people’, who tortured him and demanded money, but who might be connected to the authorities. In the letter from the son, the kidnapping is described: ‘he was kidnapped by some unidentified people on 02.09.2019 and he was furious’ and calls them ‘unidentified barbarians’, but makes no mention of detention and torture by the authorities. The JP letters also describe them as unknown people who kidnapped the Appellant and demanded money for his release and makes no reference of a possible connection with the authorities or detention and torture. The Appellant’s GP in March 2024, in a letter presumably written in response to a consultation and account of events from the Appellant, describes ‘assault and torture by the Sri Lankan army’.
19. The Judge also raised concerns about the lack of evidence about provenance and the chain of evidence with regard to the letters from Sri Lanka, which is a matter we find he is entitled to take account of, when assessing the weight to be attached to them. He found the JP letter called the Appellant by the wrong name, and there were common elements in terms of type face and structure between the son’s letter and the JP letters, which were of concern. Despite there being no reference in the Appellant’s account at any time, to the JP being physically present when the Appellant was kidnapped from his home, the JP claims in his letter to have been there, and to be an eye witness. The Judge found the Appellant’s oral evidence about this person to be vague, lacking in fundamental detail and inconsistent with the claimed close relationship.
20. The Judge also relied on issues arising from the account of the bribes paid. The Appellant had said his son paid the bribe, but the son’s letter said the Appellant paid, and in oral evidence, the Appellant ‘could not offer any coherent or consistent explanation’ [at 27]. There were additional inconsistencies and plausibility issues arising from the account of release and the bribes paid, and how they were paid and to whom. Also why the kidnappers would be going to his home looking for him, if they knew he was planning to leave the country, and why the Appellant would have told them that. We consider that an assessment of credibility, arising from oral evidence heard over the course of a full hearing, is an intrinsic part of a Judge’s role and findings arising from an assessment of oral evidence by a Judge of first instance, are not to be interfered with where adequate reasons for those findings are given.
21. Finally, the Judge had regard, as he is required to do, to the impact of delay in the Appellant’s claim for asylum, and the reasons and explanations for that delay, in accordance with s.8 of the Asylum and Immigration (Treatment of Claimants) Act 2004. He also had regard to the immigration history of the Appellant’s wife and the timing of her visa application, as being relevant to the intentions of the Appellant and his wife.
22. In relation to Ground 1, we find the criticisms in the Grounds, of the Judge’s failure to consider the CPINs or the risk to a returning failed asylum seeker, are not made out.
23. We further find that the account of torture features in the interview, witness statement and the psychiatric report, all of which documents the Judge had regard to. The credibility assessment encompassed various issues, with consideration of of plausibility, lack of detail and inconsistencies, both internal, and external when considered against the documents the Appellant relied on. Therefore, even if there was a failure to directly refer to a specific section of one of the witness statements, we find it does not undermine the credibility assessment as a whole, nor is it material, even if it were an error, because the Judge provided other, sufficiently reasoned adverse credibility findings.
Grounds 2 and 3
24. We have considered these grounds together as there is some overlap, as they relate to the treatment of the lack of a scarring report, and what is said to amount to a requirement to provide corroborative evidence. The reliance on the inconsistency about the wedding has been addressed above, in relation to Ground 1, and we find it is not an example of irrationality in the Judge’s findings.
25. We note there was some criticism in the grounds and submissions of the Judge’s decision not to attach significant weight to the report of Dr B. It is worth noting that it is a matter for a Judge to determine what weight to place upon evidence, including expert evidence, and the Judge had plainly read the report with care, noted the qualifications and expertise of Dr B and the compliance with the Practice Direction on expert evidence. However, the Judge considered other factors led to a finding that reduced weight should be placed on the report [at 32 to 36]. We find it was open to the Judge to consider those factors undermined the weight to be placed on Dr B’s conclusions. Those factors included errors in the report which might be suggestive of cut and pasting, reliance on a purported diagnosis by the GP of PTSD and history of prescribing medication for mental health problems to the Appellant, which was not supported by the GP records or letters, and a lack of detail about the length of the assessment, and the Appellant’s self-reported symptoms.
26. We note too, that in considering the possibility of feigning and exaggeration of symptoms, as he is required to do by the Practice Direction, Dr B relied in part (6.9(4)) on the Appellant having scars as a consequence of torture. This then leads into the issue of whether the Judge erred in placing reliance on the lack of a report by a scarring expert, and whether that amounts to a requirement of corroboration. We consider that while there is no requirement to produce documentary evidence to corroborate an account, an absence of evidence can go towards whether the burden of proof is discharged. In this case, arguably the existence of scarring was relied on by the psychiatric expert, as part of the evidence that reduces the likelihood of feigning or exaggeration and supports the expert’s conclusions and diagnosis. We therefore find the Judge was entitled to have regard to the lack of any evidence to establish as a fact that the Appellant has scarring on his body, in the same way that he relied on the lack of evidence to establish the Appellant was having counselling, as claimed. The Judge also had concerns that Dr B found the Appellant had been seeing his GP about mental health, when that does not feature in the medical records. Further, that the GP records and letters did not say he had ever been formally diagnosed by his GP with any mental health condition, or had been prescribed any medication for a mental health condition, yet Dr B found that he had. We find the Judge gave adequate reasons, which were not irrational, for placing reduced weight on Dr B’s report.
27. We also find it was open to the Judge to decide that the GP letters, which asserted mental health symptoms, only after the protection claim was made, were not supported by the medical notes showing a history of consultations with the GP about mental health.
28. As to whether the Judge’s concern about the lack of evidence of scarring, amounts to a requirement of corroboration, and whether such evidence is ‘readily available’, we note that the Judge also commented on the lack of any other evidence of scarring, such as photographs. It was submitted by Mr Martin that there could be any number of reasons why Dr B, who also had specialism in providing forensic scarring reports, had not been instructed to provide such a report. However, when asked if Mr Martin had any instructions from the Appellant or his instructing solicitors on what those reasons were, he did not and so could not assist us. We fully accept that those who are self funding asylum appeal representation may well not be able to pay additional fees for a report by an expert on scarring. It would have been open to the Appellant or his representatives, if this was the case, to provide a witness statement to that effect, and to address why, if cost was the issue, why there was nothing from the GP, or a map of scarring, or photographs, in the alternative. The Judge considered the lack of other forms of evidence, and found that in a case where the Appellant asserted he has visible scarring, while there was no requirement to produce corroborative evidence, evidence which should be readily available was not before him.
29. It was also the Appellant’s case before the Judge that his wife was a direct witness of his arrest and kidnapping, that he was missing for nine days, and of his release, injuries, and the subsequent steps that had to be taken to bribe officials. However, the Judge found the Appellant’s wife had not contacted the Respondent to record her claim as a dependant at a screening or other interview. Nor had she provided a witness statement, and was not called to give evidence. It was submitted by Mr Martin that there could be legitimate reasons why she was not called to give evidence, but again could not tell us what they were. His suggestion this might be a tactical decision by the representatives to avoid any adverse credibility findings did not find favour with us. We find the Judge was entitled to have regard to the absence of evidence from a direct witness, where that witness is living in the UK with the Appellant, and where there was no reasonable explanation offered why she was not giving evidence.
30. As to the other criticisms in the grounds, we find as part of assessing weight to be placed on documentation the Appellant relies on, it is open to a Judge to consider evidence about the provenance of such documents, and where there is an absence of documents showing the chain of evidence, this is a factor which can be taken into account when deciding the weight to be attached to those documents. In relation to the letters from the JP, the Judge found there were common elements between the son’s letter and that purporting to be from the JP, as well as errors in the JP letters. In that light, he noted the lack of evidence to show the documents did come from a JP in Sri Lanka, such as the lack of chain of evidence documentation, identity documentation to show such a JP existed and wrote the letters, and the Judge relied on issues arising from oral evidence about the JP, to lead him to attach limited weight to the letters. We find these findings did not amount to a requirement for corroborative evidence, but rather the consideration of issues about documentation that inform the assessment of what weight should be attached to it, which was open to the Judge on the evidence before him.
31. We find Ground 2 and 3 are not made out.
Ground 4
32. The criticism of the Judge’s reasoning under Ground 4 is not clearly explained in the grounds, but appears to be that having made adverse credibility findings about peripheral elements of the account, such as whether it was the son or daughter’s wedding, the Judge applied those findings to the entirety of the account, without properly weighing the account of torture in the witness statement. We find the assessment of credibility, as set out in relation to Ground 1, was not confined to peripheral credibility issues, or isolated areas of evidence, but encompassed all of the evidence in the round. The inconsistencies identified by the Judge were not isolated but numerous, and were considered in the round with issues of implausibility, lack of detail and external inconsistencies between the documents and the Appellant’s account. The Judge’s assessment of credibility was adequately reasoned and we find this ground, too, is not made out.
CONCLUSION
33. For the reasons set out above, we find the Decision does not contain an error of law. The appeal is therefore dismissed.
NOTICE OF DECISION
The Decision of First-tier Tribunal Judge Mill does not contain an error of law.

H Graves
Deputy Upper Tribunal Judge Graves
Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 April 2025