BN (psychiatric evidence discrepancies) Albania
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Ouseley,Latter |
| Judgment Date | 13 May 2010 |
| Neutral Citation | [2010] UKUT 279 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 13 May 2010 |
[2010] UKUT 279 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Ouseley
Senior Immigration Judge Latter
For the Appellant: Mr A Griggs
For the Respondent: Ms J Isherwood, Home Office Presenting Officer
BN (psychiatric evidence — discrepancies) Albania
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(1) The Tribunal is entitled to reject a clinical diagnosis that an appellant suffers from a depressive illness but it must give clear reasons for doing so which engage adequately with a medical opinion representing the judgment of a professional psychiatrist on what he has seen of the appellant.
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(2) In the present case where the psychiatric evidence was being relied on to provide an explanation for admitted discrepancies in the appellant's evidence, the psychiatrists' comment on the role of depression in explaining inconsistencies could not and did not even purport to deal with all the aspects of the claim which the Immigration Judge had found incredible.
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(3) On the facts of the present case even taking the diagnosis as correct, it provided no reasonable explanation for the many aspects of the appellant's evidence and behaviour which led to the rejection of his claim as credible. Accordingly, if there were any error of law in what the Immigration Judge had concluded in relation to the diagnosis, the error had no effect on the result.
The Appellant is a male citizen of Albania born in 1987 who entered the United Kingdom clandestinely on 6 December 2008 and claimed asylum on 12 December 2008. His application was refused in a detailed letter of 17 February 2009. The basis of the asylum claim was that he had deserted the army, into which he had been conscripted, following his discovery in the communal bathroom in the barracks having sex with a soldier. He feared that he would go to prison, that he would be beaten up and tortured and that the brother of the soldier he was discovered having sex with would kill him.
In her determination of 7 August 2009, Immigration Judge Ransley rejected his claim because she did not find these incidents credible or that he was a homosexual. The appellant sought reconsideration of that decision on the grounds that the Immigration Judge had erred in law in her consideration of two psychiatric reports, which diagnosed the appellant as suffering from depression. One of these referred to depression as the cause of the discrepant accounts between the screening interview and the asylum interview about when the act of homosexual intercourse happened. The Immigration Judge, it was said, had treated the date on which the incident was said to have been discovered as crucial in her rejection of the appellant's credibility and to have erred in her rejection of the psychiatric evidence about depression and its significance.
Reconsideration was ordered by Mr Justice Langstaff on 18 February 2010. He gave five reasons for his conclusion that, although the Judge was not bound to accept expert evidence even when uncontradicted, she had to give adequate reasons for rejecting the diagnosis of depression which, it was said, went to what was arguably the critical point in the Judge's rejection of the appellant's credibility namely, the discrepancies over when this sexual incident occurred. Arguably she had failed to give adequate reasons.
The matter comes before us as if permission to appeal to the Upper Tribunal has been given. It is for us to decide whether there was an error of law, and if so, whether it was material to the decision. We accepted the submission that, were it to be material, the appeal would have to be considered with further evidence, which for various reasons was not available at the date of our hearing.
In order to understand the significance of the Immigration Judge's approach, it is necessary to consider how matters developed before the appeal.
At the screening interview, by which time the appellant had already instructed his current solicitors, he gave a fairly detailed account of how he had left Albania in mid October 2008, had arrived in the United Kingdom and about what he had done on arrival here. He said that the reason for his coming to the United Kingdom was that he had been called up for military service in August 2008 until October 2008; he was mistreated by other soldiers because he was the only one from a particular area and had no friends. He had been picked on because he was found having sex with another man and would be tortured and beaten up if returned, and the brother of the other soldier involved would kill him.
Following that interview, his solicitors wrote to the Home Office on 5 January 2009, saying there had been a misunderstanding between the appellant and the interpreter as to what he had said. The solicitors then enclosed, with a letter of 28 January 2009, a statement from the appellant about what he said had happened at the screening interview and about what he had actually said. The account in this statement, the letter said, was “somewhat different to the account contained in the screening interview”, and the solicitors expressed concern that the interpreter was allowed to continue to interpret for the appellant. The appellant's statement did indeed make complaints about the female interpreter, who he felt had “maliciously damaged” his case. He had been unable to understand her accent fully. She had accused him of lying about whether he had a phone number, had accused him of lying throughout the interview and had taken his mobile phone out of his pocket without his consent. She had talked to a Home Office representative for at least 10-15 minutes, none of which was interpreted to him. The questions were asked in a very confrontational manner, leaving him extremely nervous and confused. The interpreter accused him of lying about his cousin, whom she said was really his fiancÉe. When he managed to have the screening interview translated, he said that he was shocked to learn what had been written in it. He then set out what he said was the true position in relation to his cousin, the details of his journey to the UK and what happened on arrival. He did not suggest that the August 2008 date he had given for when he was conscripted into the army was wrong.
The asylum interview in fact had taken place on 27 January 2009. After that interview the solicitors wrote on 3 February 2009 to the Home Office complaining that the same interpreter had been used. They asked for a typed version of the interview but using such interview notes as they had been able to decipher, the appellant corrected a number of his answers on points of detail. None of the corrections are of themselves germane to the issues in this appeal, save that they added to his answer to Question 151, which asked whether he had any medical conditions and to which he had answered no, “the client is not well and this is what his answer should have been, he misunderstood the question and believed he was being asked about [how he felt] during the interview. The client suffers from depression”. The appellant had not been represented during that interview. The absence of corrections to the substance of his other answers, coupled with the fact that he did correct some very detailed points, is however of some importance.
The Secretary of State's refusal letter of 17 February 2009 is a detailed analysis of the claim that the appellant was a homosexual. It went in considerable detail through inconsistencies between the asylum interview and the screening interview, and improbabilities in the account given in the asylum interview. These included the fact that in the asylum interview he said that he had started military service on 15 June 2008, but had said that that was in August 2008 in his screening interview. He suggested in his asylum interview that his problems started on 20 July 2008 and dated the incident when he was seen having sexual intercourse with another soldier in the communal baths to about two weeks after 20 July 2008. The letter said that he could offer no explanation as to why this difference had arisen. It also noted that he had been able to give several specific dates in his asylum interview, but could not recall the specific date of such a significant incident.
Improbabilities were considered such as the choice of the communal bathroom for sexual intercourse with another soldier, when he was trying to keep this sexual relationship secret. He said that he had been ill treated by the other soldiers the next day, but they had not pursued their threats because “the gong sounded and they had to go” and the senior officer who found him tied up naked on the ground did not ask him why he was lying on the floor naked. He also said that he had been stabbed whilst shaving by a fellow soldier a few weeks before because this solider had wanted to use the mirror and the appellant had told him it was not his turn to do so. He could only state that this stabbing had happened in the second month of his military service. It was thought odd that he could give specific dates when he started the military, deserted the military, left Albania and left Kosovo, but could give no indication of the date of the incident when he was stabbed. He had said that he was bleeding severely and was left for dead, but had managed to get himself to hospital by himself, walking to the pharmacy and then taking a taxi to the hospital. He showed a scar on the right hand side of his back, which is where he said it had happened. It was thought unlikely that he would have embarked on an illicit homosexual relationship with another male soldier in a communal area soon after his return to barracks, if he had felt that he was already being targeted by other soldiers...
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