Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002061

First-tier Tribunal No: HU/60325/2023
LP/11614/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 2025

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

MT
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Turner, of Counsel
For the Respondent: Ms N Kerr, Senior Home Office Presenting Officer

Heard at Field House on 30 July 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
Introduction
1. The appellant, who is a national of Turkey, appeals with permission against the decision of First-tier Tribunal Judge Manyarara (“the judge”) promulgated on 28 February 2025 dismissing his appeal against the respondent’s decision dated 11 August 2023 refusing his asylum claim.
2. For the reasons set out below, I have found that the judge did not make a material error of law in reaching her decision.
Anonymity
3. The First-tier Tribunal granted the appellant anonymity and no application has been made to set that order aside. While I attach weight to the significant public interest in open justice, in the present case I am satisfied that the balance weighs in favour of protecting the appellant’s identity on the basis that he claims to fear persecution by the Turkish state.
Background
4. The appellant was born in 1980. He entered the UK in 2007 and claimed asylum a week later on the basis that he feared persecution on account of his Kurdish ethnicity and imputed political opinion. His claim was refused on 10 June 2014 with a right of appeal. However, his appeal was dismissed by First-tier Tribunal Judge O’Garro on 29 August 2014. On 7 August 2017, the appellant made further representations to the respondent, but these were refused on 12 June 2019.
5. The appellant again sent further representations to the respondent on 16 September 2022. These representations maintained the appellant’s claim that he could not return to Turkey because he faced a real risk of persecution by the authorities there. It was also argued that his removal would breach his rights under Articles 3 and 8 ECHR. The representations were accompanied by a large number of documents that are listed at paragraph 6 of the refusal decision dated 11 August 2023.
6. In refusing the further representations, the respondent took as her starting point the decision made by Judge O’Garro in 2014 and found that the latest evidence, including a court summons for the appellant’s brother, was not sufficient to depart from the findings made by the First-tier Tribunal that the appellant did not face a real risk of harm on return to Turkey. The respondent also did not accept that the appellant’s removal would breach his right to a family or private life under Article 8 ECHR. Finally, while the respondent acknowledged that the appellant claimed to suffer from mental health issues, including depression and PTSD, and that he had been taking antidepressants, she did not accept that the evidence, including an expert report written by a counselling psychologist, Mr Michael Smyth, showed that the high threshold required in Article 3 ECHR medical cases had been met.
The proceedings before the First-tier Tribunal
7. The appellant’s appeal against the decision of 11 August 2023 was heard by the First-tier Tribunal on 17 February 2025. In a lengthy decision promulgated on 28 February 2025, the judge dismissed the appeal. In accordance with the case of Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1, at [70] the judge took as her starting point the findings made by Judge O’Garro. She accepted that, in the past, the appellant may have undergone routine arrests and investigations by the Turkish authorities as a person of Kurdish ethnicity. However, she did not accept that this proved that he would be of interest to the authorities on return. In reaching that finding, the judge took into account that despite the appellant relying on documents that showed that his brother, RT, was wanted by the Turkish authorities, RT had failed to attend the hearing to give evidence: see [76]. Furthermore, she placed no weight on a letter purportedly from the appellant’s and RT’s Turkish lawyer on the basis that no identification documents had been produced to substantiate the standing of the lawyer: see [78]. The judge did not accept that the appellant’s pro-Kurdish activities in the UK were sufficient to have brought him to the adverse attention of the Turkish authorities: see [79] to [80]. Concluding her consideration of the appellant’s asylum claim, the judge found that the country guidance case showed that the Turkish authorities did not keep electronic records of people who were detained, mistreated and released without charge and, consequently, the appellant’s previous encounters with the Turkish authorities were unlikely to put him at real risk on return to the country, especially after so many years away.
8. The judge also considered the appellant’s medical claim. She found that Mr Smyth’s assessment that the appellant suffered from major depression with psychotic features, PTSD, severe and significant anxious distress and impaired episodic memory was based on an “insufficient” examination of the appellant, which was based on a single 80-minute video session: see [120]. At [121], the judge said:

“Whilst I accept that the appellant’s mood may have been affected by the departure of his wife and children to Uzbekistan, as well as his ongoing immigration issues, I find that the nature and extent of the mental health problems claimed is not substantiated by any medical evidence. It is unclear how Mr Smyth has diagnosed the appellant with an impaired memory. There is no reference to any referral to a memory clinic, or neurologist. Indeed, no recommendation for a neurological assessment is made by Mr Symth. Furthermore, the only recommendations made are of Cognitive Behavioural Therapy (‘CBT’) and Eye Movement Desensitisation and Reprocessing (‘EMDR’).”
9. At [122] and [123], the judge found that Mr Smyth was not an expert on the availability of mental health services in Turkey and that the appellant had not claimed that antidepressant medication was unavailable there or that he lacked the capacity to live an independent life. She therefore concluded at [124] that “the evidence before me falls well below the threshold for establishing that the appellant would be unable to access any medical treatment he made [sic] require on any return to Turkey.”
The appeal to the Upper Tribunal
10. On 8 May 2025, the appellant was granted permission to appeal by First-tier Tribunal Judge Boyes on the following two grounds:
(1) The judge failed to give weight to the appellant’s medical evidence, in particular the medico-legal report of Mr Smyth.
(2) The judge fell into error by completely rejecting the letter written by the Turkish lawyer solely due to the absence of the lawyer’s identity documents.
11. At an error of law hearing on 30 July 2025, I heard submissions from both parties, following which I reserved my decision.
Discussion – Error of Law
Ground 1: Consideration of the medical evidence
12. Mr Turner argued that it was unclear what the judge meant at [121] when she found that “the nature and extent of the mental health problems claimed is not substantiated by any medical evidence.” He submitted that there was such evidence before the judge, in particular Mr Smyth’s report, but also medical records from the appellant’s GP surgery and evidence of the appellant’s mirtazapine prescription. Furthermore, he submitted that in circumstances where Mr Smyth’s expertise had not been challenged, it was not rationally open to the judge to dismiss his report on the basis given at [120], i.e. that the single 80-minute video assessment was “insufficient”. Mr Turner also submitted that the judge’s reasoning was too brief, especially in the context of what is a long decision made up of copious references to caselaw and the legal framework. Finally, he argued that the judge’s decision to discount Mr Smyth’s evidence was undermined by her reliance on it when agreeing to treat the appellant as a vulnerable witness.
13. Having carefully considered [119] to [124] of the decision, I am satisfied that the judge did give sustainable reasons for reaching her findings that the appellant’s mental health issues did not meet the high threshold required in Article 3 ECHR medical cases.
14. First, the medical records that Mr Turner argued were before the First-tier Tribunal consist of just two pages that refer to nothing more than blood tests that were requested for the appellant in January 2022 [Consolidated bundle (“CB”)/538]. I am satisfied that these records added no weight to the appellant’s mental health claim. The evidence of the mirtazapine prescription consists of a photocopy of a box of medication prescribed to the appellant and dispensed on 25 January 2022 [CB/540]. However, at [123] the judge refers to the appellant having “referred to taking Mirtazapine at a moderate dose”. While she does not make any findings on whether she accepts he takes mirtazapine as claimed, I am satisfied that is immaterial given that she goes on to find that “it is not suggested that this medication is not available in Turkey.”
15. Second, while the judge did not expressly state that how much or little weight she was attaching to Mr Smyth’s report, it is clear that the weight she attached to it was lessened by the factors including the following:

a. Mr Smyth failed to set out what documents were before him when he made his report [119].
b. There was no suggestion that Mr Smyth had access to the appellant’s GP records [119].
c. There was “considerable force” in the respondent’s submission that the mental health examination was insufficient because it consisted of a single 80-minute assessment by video [120].
d. It was unclear how Mr Smyth had diagnosed the appellant as suffering with an impaired memory and the appellant had not been referred to a memory clinic or neurologist [121].
16. The judge was clearly wrong at [119] to say that Mr Smyth had not set out what documents were before him. Page 4 of Mr Smyth’s report says that when reaching his opinions, he had the following documents available to him: the appellant’s witness statement; his GP record (which, presumably, is the short document referred to above); and the letter of instruction [CB/601]. However, for the reasons I have already given above, the medical records are brief and make no mention of the appellant’s mental health. I am therefore satisfied that even if the judge had realised that Mr Smyth had the medical records before him, it would have made no difference to her assessment of his report.
17. Mr Turner submitted that there were unlikely to be any more GP records at the time of Mr Smyth’s assessment because the appellant had only recently sought help in relation to his mental health issues. However, the photocopy of the mirtazapine box suggests that the appellant had been prescribed that medication from at least January 2022 and, therefore, it seems reasonable that there would have been at least six or seven months’ worth of medical notes to present to Mr Smyth by the time he prepared his report in late July 2022, including from when he initially went to his GP about his mental health issues. In any event, this is not a case where the expert witness is the treating physician or otherwise has a broad knowledge of the subject’s medical history, and I am therefore satisfied that the judge was entitled to take into account that Mr Smyth did not have access to the appellant’s medical records as a factor that detracted from the weight to be attached to his conclusions.
18. I am also satisfied that it was reasonably open to the judge to take into account that Mr Smyth had only met with the appellant on one occasion by video. Furthermore, in my view, the judge was also reasonably entitled to find that Mr Smyth had failed to explain his diagnosis of the appellant’s memory problems. While Mr Turner referred to Mr Smyth carrying out psychometric testing, these related only to anxiety, depression and PTSD [CB/606 – 608]. Reading Mr Smyth’s report, it appears that he simply accepted at face value the appellant’s claim that he suffered from memory problems, which he attributed to “his anxious state and depressed state” [CB/624]. There is no indication from reading the report that Mr Smyth carried out any specific tests to ascertain the appellant’s memory recall and the judge was entitled to take that into account. Ultimately, I am satisfied that the appellant’s arguments amount to little more than a disagreement with the weight that the judge decided to attach to Mr Smyth’s report.
19. In any event, as Mr Turner acknowledged, the issue to do with the appellant’s memory was something of a red herring (albeit one that has arisen from paragraph 13 of the appellant's written grounds of appeal). The important point is the judge’s consideration of the appellant’s depression, anxiety and PTSD. On this point, I find that the judge does fail to make any express findings on whether the appellant suffers from any or all of those conditions. However, I am satisfied that this is immaterial for two reasons. First, the judge went on to make uncontested findings at [122] and [123] that there was insufficient evidence before her to show that the appellant would be unable to obtain treatment for his conditions in Turkey; that he would be unable to access antidepressant medication there; or that he lacked the capacity to lead an independent life. And second, to the extent that the medical diagnoses might be said to have supported the appellant’s claim to have been mistreated by the Turkish authorities in the past, this would not have affected the outcome of the appeal given that the judge accepted that element of the appellant’s protection claim: see [43.7] and [82].
20. I am therefore satisfied from reading [117] to [124] together that what the judge likely meant at [121] when she said that “the nature and extent” of the appellant’s mental health conditions “is not substantiated by any medical evidence” was not that there was a complete absence of evidence before her. What she meant was that she was not satisfied from the evidence that was before her that his conditions were serious enough to engage Article 3 ECHR. That finding was reasonably open to her and I am satisfied that she gave adequate reasons.
21. Finally, I reject Mr Turner’s argument that the judge’s treatment of Mr Smyth’s report at [119] to [122] is undermined by her decision, as recorded at [9], to grant the application to treat the appellant as a vulnerable witness based on Mr Smyth’s diagnoses. First, as Ms Kerr submitted, the threshold for treating a witness as vulnerable is a low one. Second, Mr Turner’s submission is predicated on an erroneous assumption that the judge should have made up her mind about the weight to be attached to Mr Smyth’s report at the outset of the hearing. There is clearly no merit to such an assertion. The fact that the judge was willing to treat the appellant as a vulnerable witness at the start of the hearing on account of what was said in Mr Smyth’s report did not then preclude her from making findings about the weight to be attached to that report following the hearing, having by then heard the submissions of both parties.
Ground 2: Consideration of the letter from the Turkish lawyer
22. At [78] of her decision, the judge found that she could not place any reliance on the letter purportedly written by the appellant’s Turkish lawyer because there were no documents to substantiate that it had been written by a qualified practitioner. Mr Turner argued that this was not a case where the appellant had told “a pack of lies from the outset” and much of his claim had been accepted by Judge O’Garro. The lawyer’s letter should, he asserted, have been considered in the round with the rest of evidence, including the report of Mr Smyth, and not simply dismissed because of a lack of identification, which was the sole reason given for not attaching any weight to it.
23. Ms Kerr submitted that the judge correctly directed herself at [78] that there was no requirement for the appellant to produce corroborative evidence but, even so, the lawyer’s identification was something that was within the sphere of evidence that was readily available to the appellant. While it was not a legal requirement for the appellant to produce the lawyer’s identification, she argued, it would have been helpful and, ultimately, it was a matter for the judge to decide how much weight to attach to the evidence before her.
24. On consideration, I am satisfied that this ground does not raise a material error of law in the judge’s decision. In essence, this comes down to the question of how much weight the judge was entitled to attach to the evidence before her. That was a matter for her. The judge was reasonably entitled to attach little or no weight to the letter given that she was not satisfied that it had been written by a qualified lawyer. While it featured a stamp, the letter itself was not written on headed paper and, in the circumstances, one can understand why the judge may have been cautious about attaching weight to it [CB/588]. It cannot be said that the judge failed to give reasons for why she decided not to attach weight to the document and she was not obliged to give any more reasons than she did.
25. In oral submissions, Mr Turner did not seek to pursue with any vigour the point raised in the written grounds of appeal that it was also unfair for the judge to rely on the lack of identification without the appellant having been given the opportunity to explain why this had not been provided. In fact, he only made submissions on this point after I raised it and, even then, Mr Turner was only able to say that there was “no indication” from the judge’s decision that this matter had been put to the appellant during the hearing. He did not assert that it definitely had not been put to him. As Ms Kerr submitted, there is no evidence before the Upper Tribunal, such as a witness statement from the appellant’s previous advocate or the record of proceedings, to prove that the appellant was not given the opportunity to address this matter during the hearing. I therefore find that this element of Ground 2 is also not made out.

Notice of Decision
There is no material error of law in the decision of the First-tier Tribunal
The appeal is dismissed

M R Hoffman

Judge of the Upper Tribunal
7Immigration and Asylum Chamber

31st July 2025