Upper Tribunal (Immigration and asylum chamber), 2015-07-31, AA/11669/2014
| Jurisdiction | UK Non-devolved |
| Date | 31 July 2015 |
| Published date | 29 October 2015 |
| Hearing Date | 21 July 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/11669/2014 |
Appeal Number: AA/11669/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11669/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 21 July 2015 |
On 31 July 2015 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE SHAERF
DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN
Between
AJ
(ANONYMITY Order MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Ms S. Iqbal, Counsel instructed by Vasuki Solicitors
For the Respondent: Mr N. Bramble, Home Office Presenting Officer
Anonymity
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
DECISION AND REASONS
The Appellant
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In a decision promulgated on 29th April 2015, the First-tier Tribunal dismissed the appellant’s appeal against the respondent's refusal to grant him asylum or humanitarian protection and the consequent decision to remove him from the United Kingdom.
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The appellant is a national of Sri Lanka born in July 1990 who arrived in UK in April 2012 and claimed asylum in May 2012. The core of his claim is that in 2009 he was detained and tortured because of involvement with the LTTE; that he escaped in 2012 before making his way to the UK, via France; and that since coming to the UK he has been politically active and the Sri Lankan authorities have maintained a continuing adverse interest in him.
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On 26 November 2014 the respondent refused the appellant’s claim. The respondent did not believe the appellant and therefore did not accept he would, on return to Sri Lanka, be subject to any of the risks identified in GJ and Others (post-civil war returnees) Sri Lanka, CG [2013] UKUT 00319 (IAC). Further, the respondent took the view that even if the respondent’s account was accepted, neither his role in the LTTE nor his sur place activity in the UK were not sufficient to put him at real risk of persecution or serious harm.
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The appellant appealed and his appeal was heard by First-tier Tribunal Judge M R Oliver (“the judge”) on 1 April 2015 at Hatton Cross. The judge, having identified what he described as “clear discrepancies” in the appellant’s account, concluded that he did “not accept his account in its entirety” and found that the appellant would not be at risk on return to Sri Lanka.
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In support of his appeal, the appellant submitted a report prepared by Professor S. Lingham dated 30 March 2015. In his report, Professor Lingham states that he had a three hour consultation with the appellant and that, having examined the appellant’s four scars, he formed the view that the clinical features of the scars could not be from any other means than burning with heated metal. He found that the scars were inflicted at the same time by the same instrument and that they were at least two years old. He ruled out the possibility that they were self inflicted due to their location. He was unable to comment on whether they were caused deliberately to mislead but thought it very unlikely the wounds could be from any ritual, medical condition or accident. In his concluding remarks, Professor Lingham stated:
“I found no reason to dispute the history provided by the patient and this was after I had clinically assessed the scars, their location, distribution and appearance and after I had examined the melanocytes and pigmentation of the scarring.”
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The judge, at paragraphs 27 and 28 of his decision, made the following comments about Professor Lingham’s report:
“27. The one incontrovertible fact of the appellant’s case is that he has received 4 scars. These were relied upon by Mr Paramjorthy, who told me that Professor Lingam had been accepted in the case of KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC). In fact criticism was levelled at him at paragraph 310, and at paragraph 341 it was stated:
“Of the medical witnesses, we prefer the evidence given by Dr Odili and Dr Aapata-Bravo as to the technical circumstances in which the scarring may have come about. Unlike Dr Arnold and Professor Katona, both examined the appellant. As noted above, Professor Lingam’s finding was limited to one of mere consistency and such a finding does not entail more than a conclusion that torture was one among other possible causes. Whilst we have commented favourably on certain aspects of Professor Lingam’s methodology, we find little assistance in his application of this to the appellant’s case in relation to other possible causes, as he appears to have decided to eliminate some possible causes simply because they were not consistent with the appellant’s narrative.”
28. This was very much the tenor of short report on the appellant. Causation of the appellant’s scars has never been in issue but the circumstances in which they occurred has. What is really in issue is his credibility and the viability of his account. Before coming to any conclusion on the medical evidence, I must consider all of the evidence in the round (Mibanga v SSHD [2005] EWCA Civ 367; MN (Sri Lanka) v SSHD [2014] EWCA Civ 1601).”
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In his application for permission to appeal, the appellant contended, firstly, that the judge made his findings on credibility without having proper regard to Professor Lingham’s report. Secondly, it was submitted that several of the discrepancies in the appellant’s evidence that were highlighted by the judge as undermining the appellant’s credibility were not in fact discrepancies and could be reconciled by the evidence. Thirdly, it was contended that the judge had not properly explained why the appellant’s sur place activity was not sufficient to result in the risks identified in GJ and Others.
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Permission to appeal was granted on 22 May 2015 by First-tier Tribunal Judge Fisher on all grounds.
The Upper Tribunal Hearing
Submissions for the Appellant
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For the appellant, Ms Iqbal submitted that the judge had rejected the entirety of the claim without considering the expert medical report, even though this should have been central to the assessment of credibility given the extent to which it was consistent with the appellant’s account. She noted that at paragraph 28 of his decision the judge had correctly identified the Court of Appeal authority which sets out how medical evidence should be approached but had not then followed the authority. At paragraph 28 the judge appeared to be saying he would return to, and make a conclusion with respect to, the medical evidence later in the decision but he clearly failed to do this. She also commented that the judge was incorrect to characterise Professor Lingham’s report as short.
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Ms Iqbal also argued that the judge’s overall credibility finding could not be sustained as it was in large part based on events that he was mistaken in treating as not being supported by consistent and credible accounts. Ms Iqbal identified several of the judge’s findings in paragraph 29 of the decision where she argued the judge was mistaken in describing the appellant’s account as having discrepancies, being vague or not being plausible. Specifically, she took issue with the judge finding discrepancies in the appellant’s account of whether his brother worked at the medical centre; that the appellant was unable to say how many doctors and helpers worked at the medical centre; that he was unable to say how long he had known the man who helped him escape;...
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