Upper Tribunal (Immigration and asylum chamber), 2016-01-15, AA/07956/2014
| Jurisdiction | UK Non-devolved |
| Date | 15 January 2016 |
| Published date | 12 September 2016 |
| Hearing Date | 05 January 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/07956/2014 |
Appeal Number: AA/07956/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07956/2014
THE IMMIGRATION ACTS
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Heard at Newport |
Decision & Reasons Promulgated |
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On 5 January 2016 |
On 15 January 2016 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
TSNP
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A Benfield instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr I Richards, Home Office Presenting Officer
DETERMINATION AND REASONS
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or Court directs otherwise, no report of these proceedings shall directly or indirectly identify the Appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Sri Lanka who born on 23 January 1979.
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The appellant first arrived in the United Kingdom on 17 February 2010 with entry clearance as a Tier 4 Student valid until 30 September 2011. On 29 July 2010 the appellant returned to Sri Lanka, using her own passport, as her father was unwell.
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On 8 August 2010, the appellant returned to the United Kingdom. On 5 November 2010, the appellant’s husband joined her in the UK as a Tier 4 dependant with entry clearance valid until 30 September 2011.
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The appellant applied for an extension of her leave on 1 July 2011 but that was refused on 14 October 2011 on the basis that she had submitted false documentation and previously sought to obtain leave to enter through deception. Her subsequent appeal to the First-tier Tribunal (Judge Sethi) was dismissed on 14 December 2011 on the basis that she had, as the respondent alleged, previously submitted false documentation and used deception. The appellant, thereafter, remained in the UK without leave.
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On 1 June 2013, the appellant’s husband claimed asylum with the appellant as his dependant. However, following the appellant’s arrest on 24 May 2013, after she was discovered working illegally, on 14 June 2013 the appellant claimed asylum in her own right with her husband as her dependant.
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Looking at the chronology submitted by the appellant (at pages 1 – 4 of the FTT’s bundle), the appellant was initially placed within the Detained Fast Track procedure (“DFT”). A screening interview took place on 5 June 2013. On 17 June 2013 the asylum claim of the appellant’s husband was refused. Thereafter on 19 and 25 June 2013, the appellant had full asylum interviews. On 26 June 2013, the appellant was referred to and accepted by the Helen Bamber Foundation (“HBF”) for assessment and a Medico-Legal report. As a result of this, the appellant was taken out of the DFT and both she and her husband were released from detention.
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On 3 October 2013 the appellant attended the HBF for initial assessment. But, at that stage, no report was produced by the HBF.
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On 21 September 2014, the Secretary of State rejected the appellant’s claim for asylum, humanitarian protection and under Arts 3 and 8 of the ECHR. At this point, the report from the HBF had still not been provided.
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On 9 October 2014, the appellant appealed to the First-tier Tribunal. The appeal was initially listed for hearing on 13 January 2015 but was adjourned to await the report from the HBF.
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On 23 March 2015, the appellant was seen by the Consultant Clinical Psychologist, Dr Katy Robjant at the HBF. Her full report was provided dated 5 June 2015.
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On 17 June 2015, the appellant’s appeal was heard by the First-tier Tribunal (Judge L Murray).
The First-tier Tribunal’s Decision
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At the hearing before Judge Murray, the respondent was not represented but the appellant was represented by Counsel (not Ms Benfield). The appellant relied upon the report from Dr Robjant (at pages 32 – 42 of the bundle).
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Judge Murray accepted that the appellant was a “vulnerable witness” within the Joint Presidential Guidance Note 2 of 2010 on vulnerable adults. The appellant gave oral evidence before the judge but, in the absence of a Presenting Officer, was not subject to cross-examination.
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Judge Murray dismissed the appellant’s appeal on all grounds. First, she accepted the appellant’s account that she had been raped in Sri Lanka by a friend of her husband’s. Secondly, she rejected the appellant’s account that she had been ill-treated by the Sri Lankan authorities because of her political opinion due to her involvement with the Democratic National Alliance Party (“DNAP”). Thirdly, the judge rejected the appellant’s evidence that she had been ill-treated by her family because of her marriage which, she claimed, was “culturally disapproved”. Finally, the judge found, despite accepting that the appellant suffered from mental health problems, that the risk to her mental health, included the risk of suicide if she returned to Sri Lanka had not been established so as to breach Arts 3 or 8 of the ECHR.
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal. On 24 September 2015, the First-tier Tribunal (Judge Simpson) granted the appellant permission.
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Thus, the appeal came before me.
The Appellant’s Challenge
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The appellant’s grounds upon which permission was sought and granted set out in form only two grounds. First, there was procedural impropriety and fairness. Secondly, the judge’s reasoning was inadequate and she failed properly to consider the material evidence.
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The first ground appears to be based upon an argument by analogy to the case law that has led to the suspension of the DFT procedure and that this tainted the respondent’s decision as the appellant was interviewed whilst part of that process and before her subsequent release.
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The second ground contains a myriad of challenges to the judge’s factual finding and her approach to the evidence, in particular that she failed properly to take into account the Medico-Legal report from the HBF in assessing credibility and also that the appellant was a vulnerable adult. It is also argued that the judge was wrong to take into account the judge’s finding in the appellant’s earlier appeal where he had found that she had used deception in seeking to obtain leave. The judge, it is said, failed properly to apply the approach in Devaseelan [2002] UKIAT 00702.
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The 25 paragraphs pleaded under “ground 2” also include a challenge to the judge’s finding that the appellant could not succeed under Arts 3 and 8 based upon the impact upon her mental health, in particular the risk of suicide if she were returned to Sri Lanka.
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In her oral submissions, Ms Benfield sought to focus the challenges to the judge’s decision and, to no little extent, to significantly reformulate the challenge under ground 1. In respect of that ground, Ms Benfield no longer placed any reliance upon an argument based upon the court’s views about the DFT procedure. Instead, she submitted that the judge had erred in law by failing to apply the API “Medico-Legal reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Reports Service” (July 2015). She submitted that the Secretary of State had failed to apply this policy in proceeding to make a substantive asylum decision in respect of the appellant without waiting for the report from the HBF.
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In respect of ground 2, Ms Benfield maintained that the judge’s adverse credibility finding was flawed in that the judge had failed to take into account the vulnerability of the appellant and the HBF report. In addition to that principal submission, Ms Benfield also sought to challenge the judge’s adverse credibility finding on a number of discrete grounds – to which I shall return below. She also placed continuing reliance upon the Devaseelan point. She also challenged the Judge’s decision that the impact upon the appellant’s mental health on return to Sri Lanka would not breach Arts 3 or 8 of the ECHR.
Discussion
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I deal first with ground 1 as formulated by Ms Benfield.
1. The Policy Argument
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Ms Benfield drew my attention to the API (Version 4, July 2015) relating to Medico-Legal reports from, for example, the Helen Bamber Foundation. She placed relied upon two passages in this document. First, she relied upon the paragraph at 2.4 of the document which stated that:
“Where the caseworker is informed in writing by the applicant’s legal representative that the case has been accepted for a pre-assessment appointment, they should normally suspend a substantive decision if they are not minded to granted any leave ...”.
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Further, at 3.3...
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