IY (Turkey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lord Justice Tomlinson,Lord Justice Longmore |
| Judgment Date | 28 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1560 |
| Docket Number | Case No: C5/2012/0753 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 November 2012 |
[2012] EWCA Civ 1560
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UTJ WAUMSLEY
AA/01683/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Tomlinson
and
Lord Justice Davis
Case No: C5/2012/0753
MR DANNY BAZINI (instructed by Trott & Gentry) for the Appellant.
MS SUSAN CHAN (instructed by Treasury Solicitors) for the Respondent
Hearing date: 14 th November 2012
Introduction
This is an appeal, brought with the permission of Sir Richard Buxton, against a determination of Upper Tribunal Judge Waumsley ("the UTJ") promulgated on 11 th January 2012. By that determination, the UTJ dismissed an appeal from a determination of Immigration Judge (now designated as First-tier Tribunal Judge) Grant ("the FTTJ") promulgated on 30 th March 2011 whereby the FTTJ had rejected the appellant's appeal from a decision of the respondent Secretary of State dated 25 th January 2011 refusing to grant asylum and proposing the appellant's removal to Turkey. In dismissing the appeal to the Upper Tribunal, the UTJ found that the decision of the FTTJ involved the making of no error on a point of law; and he ordered that the decision should therefore stand.
The essential issue raised, albeit of course arising in the particular circumstances of the present case, is not an unfamiliar one. It involves consideration of the extent to which the FTTJ was entitled to reject the written report of an expert psychiatrist, which report had not been tested in cross-examination, in reaching his decision.
The appellant was represented before us by Mr Danny Bazini of counsel. The respondent was represented before us by Ms Susan Chan of counsel. Neither counsel appeared at any stage below.
The background facts
The appellant is a citizen of Turkey born on 15 th December 1986. It is not in dispute that he is an Alevi Kurd. He arrived at Stansted airport on 13 th September 2010 and applied for asylum on arrival.
At his screening interview, where he had an interpreter present, he answered a number of questions. In his answers, he said that he had flown to Cyprus from Istanbul and then after a week he flew from Cyprus to Ankara and then from Ankara to Stansted. He indicated that he was in good health and fit to be interviewed although lacking in sleep. He stated that his reason for coming to the UK was that he had been beaten by the police on 21 st March 2008 during Newroz celebrations; and because he was an Alevi Kurd he was "being harassed by the police and they were looking for me".
He was further interviewed, with an interpreter and solicitor present, on 28 th September 2010. The interview lasted a number of hours. His answers are recorded on the Statement of Evidence form. At the outset, when he was asked if he was fit, well and content to be interviewed that day he answered "I have little stress, I have dry mouth". Various breaks were offered, and accepted, during the process. After each break, he confirmed he was fit and well to continue. The questions and answers were detailed.
In his interview, the appellant said that he had been a member of the DTP party since the age of 18, helping to distribute papers and to collect donations and attending demonstrations. He said that his problems with the police began on 21 st March 2008, when he was arrested on the occasion of a Newroz celebration. He said he was detained for three days and questioned at length. He was stripped and subjected to high-pressure water hosing and was subjected to other torture, before being released.
He said that he was arrested on two subsequent occasions. On 15 th February 2009 he was arrested after a demonstration in Istanbul. He was again subjected to lengthy questioning and to high-pressure water hosing. In addition, his right wrist was broken. When he later went to hospital, he told hospital staff he had broken it playing football. The third occasion was on 15 th August 2010 when he went to a demonstration in Istanbul. There was trouble and he ran away. He returned home but the police came that night and took him and one of his sisters away. He was again questioned. He was beaten and punched. He was also subjected to high-pressure water hosing again, and also to electric shock treatment. When eventually released, he was told by the police to sign on weekly. His sister had already been released. The decision was then made, after discussion with his father, that he should leave Turkey. He flew from Istanbul to Cyprus, where he stayed a few days before eventually going on to Stansted. He had since been told by an aunt that his father had been taken away.
The detailed decision letter of the Secretary of State of 25 th January 2011 rejected the appellant's various claims. It was also noted that, despite his being granted a delay of some four months to obtain a psychological report from the Helen Bamber Foundation, none had been forthcoming. It was considered that removal from the UK was appropriate.
In due course the appellant appealed. The hearing in the First-tier Tribunal was on 10 th March 2011. The appellant was represented by an "in-house" advocate employed by his solicitors. The Secretary of State was represented by a Presenting Officer.
Very shortly before the hearing a psychiatric report, prepared by Professor Cornelius Katona for the Helen Bamber Foundation, was served on the Secretary of State by the appellant's solicitors. The report was dated 8 th March 2011 but was based on a three hour examination of the appellant by Professor Katona on 4 th February 2011. No explanation for the delay in obtaining such a report seems to have been given. The report itself is (excluding appendices) 11 pages in length.
The Helen Bamber Foundation is, of course, a very reputable charity whose principal object is working with those who have experienced human rights violations. Professor Katona is himself a distinguished consultant psychiatrist approved under s.12 of the Mental Health Act 1983 (as amended) and among other things is Emeritus Professor of Psychology at the University of Kent. He has, as he stated, prepared over 250 expert medical reports on the mental condition of asylum seekers.
In a paragraph of the introduction to his report dated 8 th March 2011 he very properly said this:
"c. The information given in this report is based on history provided directly to me by [IY]. The report does not rely on material from any other source unless specifically stated. The absence of an event does not mean it was not described to me and nothing in my summary of [IY]'s account should be taken as a finding of fact in relation to his asylum claim."
He then set out at length the appellant's account to him of his background, of his political activities, of his "traumatic experiences in Turkey", of his departure from Turkey and of his experiences in the UK.
Professor Katona said that the appellant presented as "an extremely anxious young man" who frequently became distressed and needed a break. Professor Katona assessed him as currently having mild depressive symptoms. Using a standard psychological rating scale, the appellant scored 49 out of 75 indicating that he had severe trauma related symptoms. An assessment of his mental state confirmed the clinical impression that he fulfilled the DSM IV criteria for post traumatic stress disorder ("PTSD"). Basing his opinion, as he said, on his clinical observation and not merely on what the appellant had told him, Professor Katona said this:
"7.1.a. I base my diagnosis of PTSD on the presence of the following features:
i. He has experienced extreme trauma (repeated detention and torture).
ii. He re-experiences his trauma in the form of intrusive thoughts and (until recently) vivid nightmares.
iii. He tries to avoid thinking about his traumatic experiences.
iv. He avoids reminders of his traumatic experiences.
v. He has difficulty remembering his traumatic experiences in exact chronological detail.
vi. He feels detached from other people.
vii. He is convinced he will soon die.
viii. He is easily startled: if he hears a knock on the door 'I feel they are coming to get me'.
b. [IY]'s dissociative symptoms, his social withdrawal and his despair suggest that he has suffered a traumatisation more profound than most post traumatic stress alone (Roth et al, 1997). The situation of detention and torture typifies such a description. Complex PTSD is a diagnostic category separate from PTSD rather than necessarily being either more or less severe than PTSD. Therapy focuses on the need to re-establish a sense of safety, of developing a sufficiently supportive environment for remembrance and mourning to take place for what was lost, with the ultimate goal of reconnecting with community and society.
c. [IY]'s complex PTSD has in my view been caused by the traumatic experiences he suffered in Turkey. I have considered the possibility that it might have been caused by other factors such as his immigration uncertainty and his separation from his native country, his immediate family and his girlfriend. In my opinion these factors may have exacerbated his depressive symptoms but are unlikely to have contributed significantly to his core PTSD symptoms."
Pausing there, the way in which Professor Katona phrased himself in paragraph 7 indicates that he had been prepared to accept the appellant's statements to him that he had been detained and tortured and suffered traumatic...
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