JL (Medical Reports - Credibility) China [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Storey |
| Judgment Date | 05 April 2013 |
| Neutral Citation | [2013] UKUT 145 (IAC) |
| Date | 05 April 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 145 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Pitt
For the Appellant: Ms F Clarke, instructed by Fadiga & Co
For the Respondent: Mr E Tufan, Home Office Presenting Officer
JL (medical reports-credibility) China
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(1) Those writing medical reports for use in immigration and asylum appeals should ensure where possible that, before forming their opinions, they study any assessments that have already been made of the appellant's credibility by the immigration authorities and/or a tribunal judge ( SS (Sri Lanka) [2012] EWCA Civ 155[30];BN (psychiatric evidence discrepancies) Albania [2010] UKUT 279 (IAC)at [49], [53])). When the materials to which they should have regard include previous determinations by a judge, they should not conduct a running commentary on the reasoning of the judge who has made such findings, but should concentrate on describing and evaluating the medical evidence ( IY (Turkey) [2012] EWCA Civ 1560[37].
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(2) They should also bear in mind that when an advocate wishes to rely on their medical report to support the credibility of an appellant's account, they will be expected to identify what about it affords support to what the appellant has said and which is not dependent on what the appellant has said to the doctor ( HE (DRC, credibility and psychiatric reports) Democratic Republic of Congo [2004] UKAIT 000321). The more a diagnosis is dependent on assuming that the account given by the appellant was to be believed, the less likely it is that significant weight will be attached to it ( HH (Ethiopia) [2007] EWCA Civ 306[23]).
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(3) The authors of such medical reports also need to understand that what is expected of them is a critical and objective analysis of the injuries and/or symptoms displayed. They need to be vigilant that ultimately whether an appellant's account of the underlying events is or is not credible and plausible is a question of legal appraisal and a matter for the tribunal judge, not the expert doctors ( IY [47]; see also HH (Ethiopia) [2007] EWCA Civ 306 [17]–[18]).
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(4) For their part, judges should be aware that, whilst the overall assessment of credibility is for them, medical reports may well involve assessments of the compatibility of the appellant's account with physical marks or symptoms, or mental condition: ( SA (Somalia) [2006] EWCA Civ 1302). If the position were otherwise, the central tenets of the Istanbul Protocol would be misconceived, whenever there was a dispute about claimed causation of scars, and judges could not apply its guidance, contrary to what they are enjoined to do bySA (Somalia). Even where medical experts rely heavily on the account given by the person concerned, that does not mean their reports lack or lose their status as independent evidence, although it may reduce very considerably the weight that can be attached to them.
The appellant is a national of China with an unusual immigration history. She had gone to New Zealand on a student visa in 2001 which expired in January 2002 but she remained illegally in New Zealand until September 2004 when she returned to China. She then obtained entry clearance to come to the UK as a student, valid from December 2005-October 2006. She did not undertake any studies, instead working in a takeaway. She then became an overstayer. On 20 June 2010 she was arrested on suspicion of shoplifting and received a police caution for this offence. The respondent issued directions for her removal on 10 December 2010 but on 8 December she claimed asylum. We consider it would be appropriate to make an anonymity direction in respect of the appellant.
The basis of her asylum claim was that on return from New Zealand in 2004 she met, in Beijing, YWW, with whom she began a relationship. However, after being together for six to seven months he disappeared. Some unknown men came to her flat and started searching it; she realised they were government officials; when they saw a photo of this man and her together they arrested her. She was detained for three months, during which time she was ill-treated and gang-raped/raped on several occasions. On one occasion she tried to kill herself. Her parents somehow found out where she was and were able to bribe those responsible for detaining her so that she was released. She spent six to seven months in hospital before flying to the UK. She claimed that her detention was prompted by government suspicions of her being associated with a Taiwanese spy, intent on discrediting the Chinese nation.
The respondent did not believe her story and on 20 January 2012 made a decision to remove, having refused to grant her asylum. Her appeal came before First-tier Tribunal (FtT) Judge Lingard who in a determination sent on 26 April 2012 dismissed her appeal. At the hearing the appellant was not tendered to give evidence.
There is a medical dimension to the appellant's case and in addition to the appellant's written evidence the FtT judge had before her a medico-legal report by Dr Naomi Hartree from the Helen Bamber Foundation (HBF) dated 27 February 2012 together with an addendum dated 26 March 2012, inpatient records from Air Force General Hospital, Beijing, NHS hospital records and a GP letter relating to a smear test and result. In her addendum Dr Hartree said she did not consider the appellant was psychologically fit to give evidence. At the hearing the judge also heard oral evidence from Dr Hartree who has worked for the HBF since 2009. Dr Hartree said that the appellant had described herself as a “normal” happy person prior to her imprisonment in China but from that time onwards her mental health deteriorated severely and, since arriving in the UK, her mental health continued to be poor since she tried to “keep everything inside”. She had not reacted well to a period of immigration detention in the UK, becoming intensely distressed. The appellant had told Dr Hartree she had found her asylum interview very difficult because she had to talk about her ill treatment in prison.
Before continuing with our summary of Dr Hartree's evidence it is important to mention that the appellant's evidence both to the UKBA and Dr Hartree was that since arrival in the UK she had begun a relationship in 2007 with a man called Danny who was of Vietnamese origin. Their relationship lasted some two years during which time she miscarried after a pregnancy and he became physically violent towards her.
Dr Hartree's written report recorded scars and lesions noted on the appellant's body during a clinical examination. Her report described the appellant as having a cluster of symptoms indicating a diagnosis of post-traumatic stress disorder (PTSD) with psychotic features. She described the appellant as having become socially isolated, vulnerable, traumatised, withdrawn and afraid of making contact with her parents in Beijing for fear she may cause them trouble.
Dr Hartree's written report expressed her view that the appellant's physical scars and lesions as well as her psychological symptoms correspond closely with her history and her hospital record from China reflected injuries and symptoms corresponding to a history of torture and ill-treatment. From a clinical point of view and in accordance with the Istanbul Protocol (see below) she had no reason to doubt the appellant had suffered ill-treatment as described.
In Dr Hartree's opinion the appellant required long-term therapy, a trial of antidepressant treatment and a sense of stability in her life. If the appellant is removed from the UK there was a high risk her mental health state would deteriorate very seriously owing to her genuine and persistent fear of further arrest in China or if not re-arrest, fear of destitution. She would be unlikely to access or be able to use therapy and treatment unless she has support and stability in her life.
Dr Hartree's report also commented on the respondent's refusal letter, considering that her traumatised state may have explained her delay in claiming asylum despite her educated background and that it also meant she had considerable difficulty in recalling details of her life in China and being accurate about dates.
The FtT judge was not persuaded to accept the appellant's account as credible. She said that she could only give limited weight to the appellant's recent witness statement because she had not been tendered to give evidence. She found that Dr Hartree's description of the appellant's difficulties in recalling experiences, names and dates was contrary to the fact that all accounts she had given in the context of her claim for asylum, were well summarised, detailed, lucid and generally chronologically cohesive. Hence claims that the appellant had a bad memory could not provide a proper explanation for her inconsistencies/omissions or chronological deficiencies. She considered it significant that the appellant had been prepared to stay on illegally in New Zealand despite having no fear of return to China at that time. She counted against the appellant the fact that she had only claimed asylum after being placed in immigration detention and facing removal. Noting that the appellant was relatively well-educated, she did not accept that the appellant did not know she could claim asylum when she came to the UK in 2005. She did not accept that the appellant only felt able to divulge details of her rape and ill-treatment to a male immigration office during her asylum interview because she believed this would secure her release. She placed no reliance on the Chinese Air Force General Hospital records.
Coming to Dr Hartree's evidence, the judge stated:
“102. However, I recognise the Foundation...
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