Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000487
First-tier Tribunal No: PA/01665/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 April 2025

Before

Deputy upper tribunal JUDGE Kelly

Between

ST
(ANONYMITY ORDERED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Paramjorthy, Counsel.
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer.

Heard at Field House on the 2nd April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Proceudre (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 member of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Appellant is a citizen of India. The Respondent refused her protection claim on the .27th October 2023 and her appeal against that refusal was dismissed by First-tier Tribunal Judge Lewis on the 23rd September 2024. The Appellant was granted permission to appeal against Judge Lewis’s decision and thus the matter came before me.
The appellant’s case
2. The essence of the appellant’s claim before the First-tier Tribunal was that she feared persecution by the Indian authorities due to her husband’s association with the LTTE (‘Tamil Tigers’) of Sri Lanka. She had consequently been subjected to serious physical violence, including burning and sexual assault, whilst being held in police custody in India. She was only released from that custody (albeit on conditional bail) because her mother paid a bribe. She therefore fears that these experiences will be repeated on return to India. She also fears that she will be harmed by ‘loan sharks’ from whom her estranged husband borrowed money to help Tamil refugees from Sri Lanka.
Findings of the First-tier Tribunal
3. Judge Lewis found that the weight attaching to the appellant’s evidence was substantially reduced by (a) her substantial delay in seeking asylum following her arrival in the UK, and (b) various inconsistencies and anomalies that arose during the respondent’s investigation into her account of the events that she claimed had led her to flee India. Moreover, whilst a medical report was, “broadly consistent with the appellant having suffered some form of trauma in her past”, its value was diminished by (i) the fact that the medical practitioner had not physically examined the appellant’s scars (said to be the result of burning) and (ii) their failure sufficiently to explain their findings by reference to the 2004 Istanbul Protocol.
The grounds of appeal.
4. The grounds of appeal, which mistakenly uses the male pronoun throughout when referring to the appellant, make the following complaints about the judge’s decision -
(1) There is “an obvious material error of law” in “the FTTJ’s demonstrable failure to engage with the Appellant’s witness statement and her detailed testimony responding to the Respondent’s refusal letter”;
(2) “The FFTJ has merely drawn from the inconsistencies mentioned in the refusal letter” without explaining why the appellant’s “clarification” of those matters, set out, “at paragraphs 11-38 of her witness statement”, has been “rejected”;
(3) “It is simply irrational and a clear material error of law for the FTTJ to find that the weight to be given to a ‘medical opinion’, ie a psychiatric report in this case, ought to be examined in the context of whether there was a physical examination of the scars”;
(4) “The FTTJ’s adverse findings as to credibility are therefore unsustainable”.
Analysis
5. Before considering the individual complaints made in the grounds, it is appropriate to make two general observations. Firstly, the appellant chose, on medical advice, not to give oral evidence at the hearing in the First-tier Tribunal. It follows from this that the second limb of the following complaint made against the judge, namely, that they, “failed to engage with her witness statement and her detailed testimony responding to the Respondent’s refusal letter”, is wholly unsustainable. It also follows from the absence of oral testimony that the judge was bound to make findings that were based upon the appellant’s untested evidence alone. That evidence was contained within, (a) a Preliminary Information Questionnaire (PIQ), (b) replies given in an Asylum Interview (AIR), and (c) a signed witness statement dated the 18th September 2024. It is in respect of the last of these documents - the appellant’s signed witness statement – that complaint is made of the judge failing to pay sufficient heed. Secondly, the written grounds do not particularise the very general complaint that the judge failed to explain why they had “rejected” the “clarification” in the appellant’s witness statement. I therefore invited Mr Paramjorthy to address me upon each of individual anomalies in the appellant’s account that had led to the judge making adverse credibility findings, and to cross-refer me to the specific parts of the appellant’s witness statement at which he suggested such anomaly was addressed.
6. The anomalies that led to the making of an adverse credibility finding, and which the grounds say the appellant addressed in her witness statement, are listed at paragraph 3 of the grounds:
Paragraphs 30-37 – the FTTJ finds that there [are?] significant inconsistencies in the Appellant’s account, and he particularises inconsistent accounts as to whether the Appellant had viewed the CD or not, as to the Appellant’s date of release from jail, and the account surrounding the Appellant’s need for a government minister to assist her in leaving India, together with inconsistencies as to whether the Appellant was an employer or employee.
I take each of these in turn.
7. For context, the CD to which the judge referred was one that the appellant claimed had been left with her by members of the Sri Lankan Tamil community who had sought refuge on the family farm. This CD was said to contain ‘LTTE propaganda’. However, the only reference to this item in the appellant’s witness statement is as follows:
I also explained in the AIR, I was given a CID by some of the people who stayed on the farm and said it would be interesting and that I should watch it but i never got the chance to watch it and this was later seized by the police.
It will be noted that whilst the appellant does here refer to her account in the asylum interview of how she came by the CD, she does not address the suggestion, made in the Refusal Letter, that that account was, “lacking in specificity and sufficient detail”. Instead, she simply repeats her claim that she had not watched it. Tellingly, Mr Paramjorthy did not refer to this section of the appellant’s witness statement during his submissions. This was notwithstanding the claim, made in his written grounds, that the judge failed to consider the ‘clarifications’ that it provided. He instead sought to reconcile those replies in the asylum interview the judge found to be either obscure or conflicting. Thus, in the the final sentences of the replies to questions 56 and 57, respectively, the appellant had said this:
[Q. 56] The police came to my house and they searched the house and they found a CD watched to find out what was in the CD.
[Q. 57] The police would show me what is in the CD.
These replies arguably contradicted her claim, made in her lengthy reply to question 54, that she had “never” watched it. Mr Paramjorthy however submitted that the proper interpretation of these replies, when read in context, was that she was saying she had never viewed the CD whilst it was in her possession, but that the police had shown its contents to her after they had seized it. Had the appellant provided such ‘clarification’ in her witness statement, it may well be that the judge would have been prepared to accept it. As it was, the witness statement simply added an additional layer of confusion to an already-obscure account of the matter by appearing to suggest (at paragraph 24 of the witness statement) that the police had in fact told her what was on the CD rather than shown its contents to her. It is of course possible that the appellant would have clarified all this had she given oral evidence at the hearing. As it was, the judge was entitled to have regard to the obscurity arising from the account she had given of the matter in her asylum interview, especially as the respondent had placed her on notice of these difficulties when explaining the reasons for refusing her protection claim.
8. The Judge also found that the appellant, “provided inconsistent accounts about the date of her release from jail (2011 and 2013)” [33]. This appears to be a cryptic reference to the following passage in the Refusal Letter:
You were inconsistent about your release date from jail. You told us your arrest was in May 2011 during the chariot festival (AIR 82). Once your mother learned that you were in jail, she arranged your release with the help of a minister (AIR 84-85). Alternatively, the minister helped you leave India after he arranged for your release from jails in 2013 (AIR 85-95).
Mr Paranjothy did not refer me to any answer to this alleged inconsistency that the appellant may have provided in her witness statement. He simply argued that the evidence admitted to the possibility that the appellant was here referring to two discrete occasions, and that they were not therefore mutually exclusive. Again, had the appellant sought to provide that explanation, whether in her witness statement or in oral testimony, it may well have been accepted by the judge. As it was, the judge was entitled to treat the alleged inconsistency as unanswered.
9. Another of the points made against the appellant in the Refusal Letter was that, given available background country information, it was “implausible” that the appellant would have been able to avoid identity checks at the airport in the manner she described, especially if, as she claimed, she was ‘wanted’ by the Indian authorities. The judge effectively adopted this reasoning and expanded it to include the appellant’s failure to describe the role of “the minister” in securing her passage from India. This point is to some extent addressed at paragraph 32 of the witness statement, in which the appellant says that her ‘agent’ had contacts in place at the airport, and that she was able to pass through “initial security checks” by dressing as an airport cleaner. It is right to say that the judge did not take this into account. This nevertheless does not explain how she was able to board the aircraft (at which point she would have been required to show both her passport and boarding pass) beyond saying that, “the agent had his contact in place at the immigration and me and my husband were able to leave India in May 2013”. Moreover, as the judge rightly pointed out, this did not explain what the role of “the minister” was in all of this. Thus, whilst this is perhaps the least satisfactory aspect of the judge’s reasoning, it does not in my judgement suffice to call into question its safety.
10. Finally, the judge again adopted a point that had been made in the Refusal Letter, to the effect that the appellant had given inconsistent accounts as to (i) whether her husband was the employer or an employee at the farm at which she claimed they had sheltered Tamil refugees, and (ii) the amount of money he had borrowed to give to those refugees [35]. Whilst the appellant does refer (at paragraph 11 of her witness statement) to her husband running a cattle farm “with his father”, she does not provide any explanation for her apparently inconsistent replies about the matter in her asylum interview. Insofar as the grounds appear to suggest otherwise, this has not been substantiated by reference to any relevant part of the witness statement that the judge supposedly failed to consider.
11. The final ground concerns the weight that was attached by the judge to the psychiatric report of Dr Dhumad. The judge accepted that this report was, “broadly consistent with the appellant having suffered some form of trauma in her past” [50]. However, the judge went on to state that, “it does not follow from that that the trauma is that which she now claims to support her claim for protection” [51[. The specific complaint made in the grounds is however concerned with an earlier observation by the judge, at paragraph 49:
In assessing the weight to be given to the medical opinion it is relevant that:
(i) That there was no physical examination to assess whether the appellant has scaring (sic) consistent with the treatement she alleges occurred in police custody.
(ii) The reference and link to the Istanbul Protocol refers to the 2004 version of the document. Although paragrpah 105(f) of that version is addressed, the report does not give adequate consideration to (a) to (e).
12. No point is taken in the grounds about the second of the above reasons for attaching reduced weight to the medical evidence. It is however right, as the grounds point out, that a psychiatrist cannot reasonably be expected to conduct a physical examination of a patient with a view to supporting the correctness of their psychiatric diagnosis. To this limited extent, I agree that the judge was in error. I do not however consider that this suffices to disturb the judge’s overall conclusion concerning the state of the medical evidence, given that (i) the judge could equally have observed that the overall strength of the appellant’s claim (as opposed to the weight attaching to the medical evidence) was diminished by the absence of evidence from an appropriately qualified expert concerning physical signs of torture of the kind described by the appellant, (ii) the judge in any event accepted Dr Durham’s diagnosis of the appellant’s condition, and (iii) Dr Durham did not seek to attribute the cause of the appellant’s condition to any particular traumatic event.
13. Standing back and looking at matters overall, I agree with Ms Isherwood’s submission that the grounds in this appeal are largely an attempt to re-litigate matters upon which, as the grounds themselves acknowledge, the appellant had been placed on notice prior to the hearing in the First-tier Tribunal. As to the ground concerning the judge’s assessment of the medical evidence, I am satisfied that the single legitimate criticism that is made of that assessment is not such as materially to affect either the substance or the safety of the First-tier Tribunal’s decision. I am fortified in these conclusions by the fact that the judge gave additional reasons for their decision, such as the lengthy delay of the appellant making her protection claim following her arrival in the UK, that have not been subjected to criticism.
Notice of Decision
14. The appeal is dismissed, and the decision of the First-tier Tribunal therefore stands.

David Kelly Date: 6th April 2025

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber