Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000977

First-tier Tribunal No: PA/54109/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

SM
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M West (instructed by Liberty Legal Solicitors LLP)
For the Respondent: Ms S McKenzie (Senior Home Office Presenting Officer)

Heard at Field House on 11 June 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and 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. This is an appeal brought with permission, by the appellant against the decision of the First-tier Tribunal dated 13 December 2024 in which the appellant’s protection and human rights appeal was dismissed.

2. In summary the appellant’s case is that he suffered problems in Bangladesh on account of his political opinions and activities. He entered the United Kingdom as a student on 15 December 2020, his visa was valid until 6 October 2021. The appellant suffered a road traffic accident whilst he was riding a bicycle on 24 February 2024 and suffered some injuries consisting of a number of abrasions and an undisplaced fracture of the left distal radius. As a result of a CT scan it was discovered that the appellant had an unrelated cyst near the brain, which was not found to be malignant and is now subject to monitoring. No specific treatment was required for the injuries or the cyst. As a result of the accident the appellant developed PTSD and phobic anxiety, which were diagnosed by Consultant Psychiatrist Dr Turner in a report dated 3 October 2022, which was prepared for the purposes of a damages claim.

3. The appellant claimed asylum on 18 October 2022, his screening interview took place on 27 October 2022 and his substantive interview took place on 30 January 2024. The appellant’s claim was refused on 7 February 2024. None of the material facts of his claim were accepted on the basis of a number of credibility issues. The appellant’s human rights claim was also rejected.

4. On appeal, although First-tier Tribunal Judge Byne (“the Judge”) accepted that the appellant’s claim was broadly consistent with the country information [16] the Judge did not accept that the appellant had given a credible account of the core of his claim for some, but not all of the reasons given in the reasons for refusal decision and due to issues arising at the hearing. The humanitarian protection, article 2 and 3 ECHR claims all stood or fell with the protection claim. As for article 8, the Judge rejected the contention that there would be very significant obstacles to the appellant’s reintegration in Bangladesh and that there would be a breach of article 8 ECHR if the appellant were removed from the United Kingdom.

Summary of grounds and submissions

5. Mr West for the appellant initially relied upon the three grounds of appeal (Mr West was not the author of the grounds) upon which permission had been granted. Upper Tribunal Judge Perkins who granted permission was doubtful as to merits of grounds 2 and 3 but did not restrict the grant of permission. Upon reflection, Mr West did not pursue grounds 2 and 3 in relation to challenges to the article 8 findings. He was right to do so and I appreciate counsel’s focus on ground 1.

6. Helpfully the respondent had produced a rule 24 response and it was confirmed by Ms McKenzie that the respondent continued to resist the appeal. I heard submissions on behalf of both parties summarised below.

7. The appellant contends that the Judge erred in his approach to the assessment of his credibility. Essentially, the appellant contends that defaults in his memory and recall as a result of his mental health issues and therefore as a vulnerable adult have not been adequately taken into consideration, as per the Joint Presidential Guidance Note No.2 of 2010, Child vulnerable adult and sensitive appellant guidance (“Joint Presidential Guidance on Vulnerable Witnesses”), when assessing the credibility of his account. As a result, the Judge has given inadequate reasons for rejecting the appellant’s account at paragraphs [17] - [19] which I set out in full:

“17. In arriving at the credibility findings in this decision, I have also taken account of the fact that there is medical evidence in the form of a psychiatric report prepared by Dr T Turner on 3 October 2022 for the purposes of a civil action taken by the appellant arising out of a bicycle accident. The report shows that, due to a bicycle accident in the United Kingdom on 24 February 2021 (the appellant having arrived in the United Kingdom on a student visa on 15 December 2020), the appellant has been diagnosed with mental health issues, including PTSD and phobic anxiety (the latter phobia being particularly linked to bicycle use). I also take account that some aspects of that report show that the appellants self-reported issues with memory and recall (‘He experiences some episodes of forgetting things and getting angry with himself, with a lack of focus.’ (paragraph 11); ‘At times he forgets people’s names, and felt that he needed help to relax.’ (paragraph 15)). I also take account of more recent medical evidence that, as of September 2024, the appellant has been prescribed sertraline for depression and anxiety. I further take account of the fact that there was no objections to the appellant’s legal representative’s application for adjustments at the appeal hearing, including extra breaks and a straight-forward approach to questioning, in order to take account of the appellant’s mental health vulnerabilities.

18. In the RFRL, the respondent makes a number of adverse credibility findings against the appellant concerning his account of being a member of BNP and being threatened in relation to same, as follows:
‘1. In your account of when you joined the BNP you state you joined in 2017 (SCR 4.1) alternatively in 2016 (AIR 36, 37) this is internally inconsistent.
2. Your account describing the process to become a BNP member is lacking in detail and specificity and is externally inconsistent with country information. You stated that you did not have to pay a fee to become a member of the BNP however country information states that there is a membership fee of 10 Taka per year 1(AIR 38 – 43).
3. You description of the BNP logo is externally inconsistent with the BNPs own literature (AIR 46).
4. Your account of who assaulted you and how you knew they were members of the
Bangladesh Awami league is lacking in detail and specificity (AIR 31, 32).
5. Your description of the BNP policies and the parties 19-point plan is lacking in detail and specificity (AIR 47, 48, 51).
6. Your account of demonstrations you have attended as part of your BNP membership is lacking in details and specificity (AIR 53).’

19. While taking due account of the matters outlined at paragraphs 16 and 17 above, I do not find that the appellant has offered satisfactory responses to the points outlined in the RFRL to the extent that those matters can be resolved in the appellant’s favour. In his evidence on appeal the appellant has stated that he joined the BNP as an organising secretary in 2016 and that he was attacked by members of the BAL on 25 May 2017, which resulted in him being knocked unconscious and being hospitalised for twenty days. However, he has not engaged directly with the points raised in the RFRL. I find that there is substance to the points made in the RFRL and I find that it is undermining of the appellant’s credibility that he has not provided satisfactory explanations that address the issues identified in relation to inconsistency and lack of specificity. I find that the issues identified are fundamental in nature and I do not find that the medical evidence concerning the appellant’s mental health is sufficient to address these points.”

8. In amplification of the written ground, Mr West referred me to paragraph 30 of AM (Zimbabwe) v Secretary of State for the Home Department [2017] EWCA Civ 1123 where Sir Ernest Ryder, said that failure to follow the Practice Direction and the Joint Presidential Guidance on Vulnerable Witnesses will most likely be a material error of law. I was also taken to paragraphs 14 and 15 of the Joint Presidential Guidance on Vulnerable Witnesses as relevant to a judge making a determination:

“14. Consider the evidence, allowing for possible different degrees of understanding by witnesses and appellant compared to those are not vulnerable, in the context of evidence from others associated with the appellant and the background evidence before you. Where there were clear discrepancies in the oral evidence, consider the extent to which the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity.

15. 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.”

9. Mr West submitted that two of the credibility issues listed at [18] at subparagraph (5) and (6) were said to be a lack of clarity but when the answers in the asylum interview were considered (Q51 and Q53) the appellant said he couldn’t remember or give exact dates due to his memory issue. Mr West contends that the Judge was required to grapple with these issues about memory and recall and consider whether the lack of clarity can be attributed to mental health issues.

10. In response to questions from the Bench, Mr West pointed out that although the Judge [53] had referred to there being a dearth of evidence as to whether the appellant went for counselling or other therapy, the report of Dr Turner records that access to psychological therapy had been an issue and that the Judge should have dealt with that. Mr West accepted that Dr Turner does not address the issue of memory or recall in the diagnosis or clinical examination parts of the report but says that it was not disavowed by the Judge at [19], the Judge said he had taken the self-report part of the report into account [17]. In summary, Mr West submits that it was not sufficient for the Judge to say that the appellant’s mental health does not deal with the credibility issues when he had not grappled with the issue of memory and recall raised by the appellant. The mental health issues were sufficiently serious to require the Judge to give greater heed to the guidance and give reasons why the appellant’s reference to his memory and recall issues were rejected. The Judge’s comment at [61] that the appellant’s mental health conditions are not “especially serious” are indicative that the Judge undermined the seriousness of the appellant’s mental health conditions.

11. Mr West submitted that any errors of law contained within [17] and [19] would be material to the outcome of the appeal, notwithstanding there were other credibility findings that remained unchallenged. However, he fairly accepted that it might be appropriate for those unchallenged findings to be preserved.

12. One final point in relation to [25] was that the Judge had given insufficient reasons for rejecting the appellant’s explanation for being unable to provide medical evidence from Bangladesh regarding a hospital stay following an alleged attack on him in 2017.

13. In response to ground 1 Ms McKenzie relied upon the rule 24 response. She emphasised that the Judge is not required to record every minute detail in the determination. She submitted that the Judge did take account of the appellant’s memory and recall but that the Judge found the medical evidence to be insufficient. Ms McKenzie submitted that the Judge was correct to note the insufficiencies in the medical evidence because any reference in the report of Dr Turner to memory problems were a record of the appellant’s self-report but there was no cognitive assessment or diagnosis in Dr Turner’s report or any other medical evidence to support that. There was no mention of memory problems in the GP records.

14. Ms McKenzie referred me to SB (Vulnerable Adult: credibility) Ghana [2019] UKUT 00398 (IAC) paragraphs 59-62. Two points arise, firstly that just because a judicial fact-finder has treated an appellant as a vulnerable witness does not mean that any adverse credibility finding is inherently problematic or open to challenge. Secondly, as per the Guidance, it is for the judicial fact-finder to determine the relationship between vulnerability and the assessment of the evidence, which is a matter of degree. The respondent contended that the Judge had taken the evidence as a whole, considered the degree of vulnerability of the appellant, initiated the vulnerable witness guidance and considered the appellant’s vulnerability when assessing the evidence and credibility.

15. In respect to the lack of medical evidence from Bangladesh point, Ms McKenzie submitted that the Judge had given sufficient reasons.

16. In reply, Mr West noted that the Judge in SB had given the appellant a liberal application of the benefit of the doubt but that had not happened in this case. He also pointed out that treating an appellant as vulnerable during the course of the hearing is slightly different to taking that vulnerability into account when assessing their credibility. The Judge has failed to take then appellant’s answers in the substantive interview, namely that he couldn’t remember, into account when reaching conclusions [19]. Mr West contends that the Judge needed to state that the appellant has said he has memory issues and to give reasons if he did not accept that. Mr West did not accept that the Judge was saying that the medical evidence itself was insufficient but that the evidence was insufficient to address the points raised in the refusal decision.

17. I reserved my decision.

Conclusions

18. In reaching my conclusions I 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. I find that there is no material errors of law identified in the ground of appeal for the following reasons.

20. In my assessment, the appellant seeks to elevate the record of what the appellant reported to Dr Turner about problems with his memory and/or recall in his report from what it is and how the Judge dealt with it [17], namely the appellant’s self-report of these problems, to medical evidence of the same. I agree with the respondent that there was no medical evidence in the form of an assessment or diagnosis to support the appellant’s claims. On the contrary, Dr Turner’s report records under the heading “current mental state examination” that the appellant was “fully orientated to time, place and person, with an appropriate recall of recent events and satisfactory ability to do the months backwards test in terms of brief attention and concentration span.” The sum of the evidence regarding the appellant’s alleged memory or recall issues came from the appellant himself.

21. The Judge treated the appellant as a vulnerable witness in accordance with the Joint Presidential Guidance on Vulnerable Witnesses in light of his diagnosis of PTSD and phobia anxiety [17]. However, the Judge is correct to note at [19] that the appellant had failed to engage directly with the points in the refusal decision. In the absence of any explanation from the appellant in response, the Judge was entitled to find that the criticism of the appellant’s evidence was well-founded and damaging to his credibility. Three of the six of those points were based on inconsistencies in the appellant’s account either internally or with the objective material. As Mr West accepted, those points could not be explained by reference to memory or recall problems. That left three adverse credibility points based on a lack of detail or specificity. It was open to the Judge in my view to conclude that the medical evidence was insufficient to address those points. In the absence of any medical evidence to support the appellant’s claim that his memory is impacted by his mental health conditions the Judge was entitled to find that failure to engage with the points of refusal undermine the appellant’s credibility and that the medical evidence regarding his mental health is insufficient to fill that void. Those are the reasons given by the Judge for concluding that the appellant’s credibility was damaged for the reasons set out at [18] and those reasons are sufficient.

22. I do not accept that the Judge’s reference [61] to the appellant’s mental health conditions not being “especially serious” is anything other than an accurate assessment of all the evidence before the judge, including the fact that the appellant had not pursued the treatment recommendations of Dr Turner in the two years between his report and the hearing before the Judge. This was, as required by the Joint Presidential Guidance on Vulnerable Witnesses, an assessment of the extent of the appellant’s vulnerability and how that might impact on the assessment of the evidence.

23. I also do not accept that the Judge did not give adequate reasons for rejecting the appellant’s explanation for not providing medical evidence from Bangladesh [25]. This point does not stand alone and must be viewed in the context of the determination as a whole. The Judge specifically states when dealing with this point “Looking at the case in the round, I find this state of affairs to be undermining to the appellant’s credibility”. This was one of a number of instances where the Judge identified that the appellant had failed to provide more specific information and mention something of importance in his witness statement and it is against the whole background, including other unchallenged negative credibility findings that this finding must be viewed.

Error of law conclusions

24. There is no material error of law.

Notice of Decision

25. The appeal is dismissed.

E Daykin

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11 June 2025