Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005958
First-tier Tribunal No: PA/50153/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 July 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Mr TK
(ANONYMITY ORDER MADE)
Appellant
v

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A. Radford, counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr E. Tufan, Senior Home Office Presenting Officer

Heard at Field House on 17 June 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The Appellant is a national of Sri Lanka, born in 1970. He is a Muslim of Tamil ethnicity who first came to the UK in March 2004, travelled to Italy on 24 October 2006 and was returned to the UK 2 days later. He claimed asylum on 1 November 2006, but this application was refused on 16 November 2006. The Appellant later made submissions in support of a fresh claim on 28 September 2010, which were refused; again on 9 May 2013 which were refused with the right of appeal, which was dismissed in a decision dated 7 April 2014; on 27 December 2020, which were refused with the right of appeal on 5 January 2022. His appeal was dismissed in a decision dated 27 September 2022 but permission to appeal was granted to the Upper Tribunal on 17 November 2022 and the appeal was remitted back to the First tier Tribunal.
2. A further hearing on 13 March 2025 resulted in the appeal being dismissed in a decision dated 28 June 2025. An application for permission to appeal to the Upper Tribunal was made on the basis of the following grounds:
(i) The failure to apply the Joint Presidential Guidance note No 2 of 2010 relating to vulnerable appellants and witnesses;
(ii) The failure to adequately consider the expert medical report of Professor Katona as it related to the Appellant’s credibility, his illness and the likely impact of removal on him;
(iii) The failure to consider the Appellant’s length of residence as a highly relevant factor in the balance of proportionality.
3. In a decision dated 18 August 2025 permission to appeal to the Upper Tribunal was granted with regard to grounds 1 and 2 only by FtTJ Boyes.
4. A rule 24 response dated 21 April 2026 provides:
“1. The FTTJ under the heading Preliminary issues at paragraphs [19] and [20] considered the Presidential Guidance and directed that “care should be exercised when asking the appellant questions about traumatic incidents and questions should be framed in a short and simple manner.” She also informed the appellant that “he would be afforded regular breaks when he requested them.”
2. Contrary to what has been asserted there is no evidence in the papers that the FTTJ has not applied the terms of the Guidance. It has not been suggested that the FTTJ entertained posing of questions where care was not applied, and any requested breaks were refused. There could have been no obligation for the FTTJ to repeat that she is applying the terms of the guidance on each finding she made.
3. The findings of the FTTJ concerning the unreliability of the documents at [39] and [40], the decision not to depart from FTTJ Harries’s adverse credibility findings through the application of section 8 at [42], the use of fraudulent documents at [43], and the consideration of the asylum interview were not in effect relevant to the issues addressed by Professor Katona, namely his assessment that the appellant is suffering from PTSD.
4. A further complaint is made in relation to the FTTJ’s description of Professor Katona’s report as inconclusive on the basis that the appellant’s symptoms were assessed as indicative of probable post‑traumatic stress disorder. A fair reading of the report demonstrates that Professor Katona in fact concluded that the appellant is suffering from PTSD. In any event, at [109] the FTTJ expressly accepted that the appellant suffers from severe depression and anxiety. It is submitted that any minor slip in the FTTJ’s characterisation of the degree of the appellant’s condition could have had no material bearing on the well‑reasoned findings reached by the FTTJ.”
5. At the hearing, I heard submissions from Ms Radford on behalf of the Appellant. She submitted, with regard to Ground 1, that whilst the judge decided the Appellant was a vulnerable witness and to take procedural steps such as breaks during the evidence and she took no issue with the procedural adaptations, but Joint Presidential Guidance note No 2 of 2010 relating to vulnerable appellants and witnesses [the guidance] is not just about making procedural changes but also how vulnerability affects the evidence. Ms Radford drew attention to 10.3 of the guidance which explains some ways in which vulnerability can affect evidence, including impaired memory, how evidence is given and questioning. More specific information is provided in the report of Professor Katona.
6. Ms Radford submitted that whilst the decision does record vulnerability at [19] and [20] the judge does not apply the guidance in relation to the assessment of evidence: see the discussion of credibility following [22] onwards which addresses discrepancies in the accounts of how the Appellant says he was tortured and his failure to produce documents which corroborated his claim at the earliest opportunity. The judge concludes that given all of those matters he saw no reason to depart from Judge Harries’ findings.
7. I asked whether the parties had seen or had access to the decision of Judge Harries but they were unable to assist.
8. I put to Ms Radford the fact that the credibility findings were quite damning and whether and if so, how they were undermined by the guidance. Ms Radford drew attention to the psychiatric report of Professor Katona regarding discrepancies in re-telling. Professor Katona identifies aspects of the evidence and the Appellant’s symptoms of PTSD at [7.2] to [7.6] at page 136 where he states that the Appellant experiences vivid intrusive thoughts and avoidance behaviour and disturbed sleep and difficulty concentrating and is easily startled. At [9.3] Professor Katona states that he would expect the Appellant to have considerable difficulty in an adversarial context such as interviews and hearings. At [9.4] Professor Katona states that memories of traumatic events are coded differently and that people with PTSD have difficulty in giving clear and consistent account and details and that major depression also impacts. At [10.4] Professor Katona finds that the Appellant’s symptoms are prominent and disabling.
9. Ms Radford submitted that one would expect those vulnerabilities to impact on the evidence. Consequently, the Judge did need to say that is what he had concluded and why and this is particularly relevant at [37] of the determination where there is a discrepancy between a detention of 10-15 minutes and 2 hours. This is directly contradicted by Professor Katona’s evidence. The Appellant said both in his asylum interview i.e. both that he was detained for 2 hours and for 5 or 10 minutes.
10. Ms Radford submitted that it is also relevant to findings at [36] that he was not able to explain why his persecutors suspected him. At [38] he had not mentioned relevant documents earlier. At [42] he had delayed claiming asylum due to avoidance. The judgment at [43] found that being afraid of removal is not a good explanation for coming forward but this is different for someone with PTSD. Between [45] and [59] the different ways the Appellant described injuries he had suffered are set out.
11. With regard to the fact the Appellant does not mention torture in his interview, Ms Radford submitted that this is due to avoidance. Professor Katona says his symptoms are worse in adversarial formal setting. When he sees psychiatrists he gives a full account albeit late details. Ms Radford clarified that she is not saying that proper application of the guidance would necessarily lead to a finding the discrepancies are not relevant but it would need to be considered. Ms Radford also drew attention to the fact that Dr Galapatthie also diagnosed PTSD, Dr Turvill found the Appellant was not suffering PTSD and it fluctuates over time, which is also what Professor Katona says, but the judge has not considered the possibility that the Appellant’s symptoms were caused by torture in Sri Lanka. Professor Katona considered whether it could have been caused by another possibility but found it was caused by events in Sri Lanka and had been exacerbated by other matters.
12. With regard to Ground 2, Ms Radford submitted that it was wrong to consider credibility and then ask if other evidence displaces this but he needed to consider this in the round cf Mibanga [2005] EWCA Civ 367 and Professor Katona’s report is clearly relevant to credibility. The judge found that Professor Katona was inconclusive about suffering from PTSD due to probable diagnosis but Professor Katona applied the screening tool which points to a probable diagnosis but later in the report he applies the DSM and makes clear findings and his diagnosis based on clinical features and treatment needs and impact of removal, where he repeatedly refers to PTSD and also refers to previous earlier psychiatric reports. By describing Professor Katona’s report as inconclusive it is not clear from the reasoning whether the judge intended to reject Professor Katona’s opinion or misread his opinion. This is in addition to the fluctuation point.
13. Ms Radford submitted that the availability of care and prognosis are both effected by this error: see [113] where the judge says he can access care for depression and anxiety and in any event as observed by Dr Whittaker Howe his issues would resolve. But this report was 6 years earlier and it is not clear why Professor Katona was not considered here. Professor Katona says his symptoms are likely to worsen on removal and the Appellant would be prevented from engaging fully and responding to treatment for PTSD, even if available, it would not be accessible and beneficial in an environment where he has subjective fears. Whittaker-Howe says the Appellant would be able to work whereas Professor Katona says he would be unable to work and secure basic needs so reaches quite a different opinion on the severity of illness and how he would fare if removed. Ms Radford submitted that this also goes to very significant obstacles to return removal aspect of article 8.
14. Mr Tufan began his submissions by pointing out that in October 2026 the Appellant would have been in the United Kingdom for 20 years. He sought to rely on the Respondent’s rule 24 response. He submitted that the judge clearly mentions vulnerability and that clearly the guidance was in his mind: there is no suggestion the Appellant was not offered sufficient breaks or that the judge had not applied the guidance in that regard. Mr Tufan drew attention to the fact that the Appellant’s PTSD has been assessed on numerous occasions before and by Professor Katona last of all and the judge does refer to results of different doctors. The judge finds at [104] that Dr Galapatthie’s findings are inconsistent with GP records and almost no symptoms of PTSD were recorded. Professor Katona’s findings are also somewhat inaccurate and not quite in line with GP records as well. There are numerous credibility issues and the judge correctly applied Devaseelan [2002] UKAIT 00020. Whilst Judge Harries’ determination is not in the bundle, Judge Jarvis relied on it in his decision of September 2022 and that decision is in the bundle and there is about a page of Judge Harries’ findings recorded.
15. Whilst Mr Tufan accepted at [9] of the Rule 24 response that Professor Katona diagnosed the Appellant with PTSD it is not clear how this affects e.g. his interview record and the credibility findings previously made. With regard to article 3 no suggestion has been made that there would be no treatment in Sri Lanka and it is known from AM (Zimbabwe) [2020] UKSC 17 that it is a very high test in medical cases and the Appellant’s condition comes nowhere near that threshold. With regard to article 8 if the Appellant cannot succeed on article 3 grounds he cannot succeed on article 8 grounds without more. Mr Tufan submitted that there are no material errors of law.
16. In reply, Ms Radford drew attention to IA Somalia [2007] EWCA Civ 323 where Lord Justice Keene held at [15] that: “in public law cases, an error of law will be regarded as material unless the decision-maker must have reached the same conclusion without the error.” The SSHD now accepts errors of fact regarding the diagnosis of PTSD by Professor Katona, the question is whether that is material and whether the judge could have decided things differently. Given that nearly all of the credibility issues can be touched upon by symptoms of PTSD the Tribunal cannot be sure the result would be the same.
17. I found a material error of law in relation to Grounds 1 and 2 of the grounds of appeal and announced my decision at the hearing. I now give my reasons.
18. It is the case that at [19] the judge made a vulnerability direction based on the medical evidence in the bundle that the Appellant had mental health issues and he made the direction with reference to the Guidance. However, Ms Radford’s point is that the judge then failed to take account of the substance of the Guidance when reaching findings on the Appellant’s credibility
19. I have had careful regard to the Joint Presidential Guidance note No 2 of 2010 relating to vulnerable appellants and witnesses which provides, where relevant, as follows:
“3. The consequences of such vulnerability differ according to the degree to which an individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole.”

“10.2 …
(v) Be sensitive to the possibility that the witness/appellant has understood the question, and, if there is a risk of confusion, check this.”

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.

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 mind7.”
20. Ground 1 of the grounds of appeal makes express reference to the following paragraphs of the decision and reasons: [31], [36], [37], [38], [42], [43], [45]-[59]. Paragraph 31 of the decision and reasons is a summary of the findings made previously by Judge Harries. At [32] and [33] the judge went on to note that the Appellant relied on evidence that was not before Judge Harries, including a report dated 13 December 2021 and addendum report of Dr Galappathie and a psychiatric report by Professor Katona. Despite this evidence, at [35] the judge saw no reason to depart from the findings of Judge Harries, a finding he repeated up to and including [62] also disregarding the scarring report of Dr Turvill which had not been before Judge Harries. The Judge concludes at [88]: “I am not satisfied for the reasons I have given that the new evidence relied upon by the Appellant is sufficiently cogent or reliable to enable me to depart from the findings of the previous judge. I see no reason to depart from the findings of credibility made by Judge Harries.”
21. Regrettably neither party was able to provide a copy of the decision and reasons of Judge Harries and the decision pre-dates the digitalisation of the Tribunal’s files so it was not possible to examine that decision and reasons. Notably although Judge Chinweze cites from it fairly extensively it is not clear whether or not he had access to an actual copy of the decision rather than a summary of Judge Harries’ findings as cited by Judge Jarvis in his later decision, which was set aside by the Upper Tribunal, or a summary taken from the Respondent’s refusal decision. This is not a satisfactory situation.
22. I find that, given none of the relevant psychiatric evidence was before Judge Harries and given the matters set out in the Guidance at [17] above, had the judge appreciated the effect of and applied the Guidance to his assessment of credibility then he may have reached a different conclusion on a holistic consideration of all the evidence before him, rather than maintain the previous credibility findings of Judge Harries.
23. Ground 2 argued that the judge erred in failing to adequately consider the expert medical report of Professor Katona as it related to the Appellant’s credibility, his illness and the likely impact of removal on him. Paragraph 4 of the Rule 24 response accepted that a fair reading of the Professor’s report: “demonstrates that Professor Katona in fact concluded that the appellant is suffering from PTSD.” The response goes on to assert that this has no material bearing given that: “In any event, at [109] the FTTJ expressly accepted that the appellant suffers from severe depression and anxiety. It is submitted that any minor slip in the FTTJ’s characterisation of the degree of the appellant’s condition could have had no material bearing on the well‑reasoned findings reached by the FTTJ.” I disagree. There is a material difference between a diagnosis of severe depression and anxiety and a diagnosis of PTSD particularly given the potential impact of the diagnosis on the assessment of credibility.
24. For the reasons set out above I find material errors of law in the decision and reasons of Judge Chinweze and I set that decision aside. Ms Radford requested that the appeal be remitted back to the First tier Tribunal. I have taken account of the fact that extensive fact finding will be required in light of the previous decisions of Judges Harries and Jarvis and the subsequent medical evidence which has a bearing on a proper assessment of the Appellant’s credibility. I have applied the decision in Begum [2023] UKUT 00046 (IAC) and rule 7(2)(b) of the Practice Direction i.e. “(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.”
25. Accordingly, I remit the appeal back to the First tier Tribunal for re-making. None of the findings of fact of Judge Chinweze are preserved. [2005] EWCA Civ 367. I direct that the parties use their best endeavours to locate and serve the decision of Judge Harries dated 22 April 2014.

Rebecca Chapman
Deputy Upper Tribunal Judge Chapman

20 July 2026