Upper Tribunal (Immigration and asylum chamber), 2016-01-06, AA/04263/2015
| Jurisdiction | UK Non-devolved |
| Date | 06 January 2016 |
| Published date | 12 August 2016 |
| Hearing Date | 18 December 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | AA/04263/2015 |
Appeal Number: AA/04263/2015
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04263/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 18 December 2015 |
On 6 January 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DOYLE
Between
T V
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Soloman (counsel) instructed by Aschfords law
For the Respondent: Ms Fijiwala, Senior Home Office Presenting Officer
DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant, because the case involves discussion of the appellant’s mental health.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge M A Khan promulgated on 28 August 2015, which dismissed the Appellant’s appeal on all grounds.
Background
3. The Appellant was born on 30 August 1987 and is a national of Sri Lanka.
4. On 23 February 2015 the Secretary of State refused the Appellant’s application for asylum.
The Judge’s Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge M A Khan (“the Judge”) dismissed the appeal against the Respondent’s decision.
6. Grounds of appeal were lodged and on 23 September 2015 Judge Roberston gave permission to appeal stating inter alia
“2. Although there is little arguable merit in the claimant Professor Lingham’s report cannot carry significant weight because it is incomplete, there is some merit in the submission that the appellant’s sister’s witness statement supported Dr Persaud’s reference to brain damage suffered by the appellant at birth. It is unclear what tests, if any, were conducted by Dr Persaud to assess the current effects of this on the appellant. It is also arguable that the judge did not consider the risk on return on article 3 grounds in view of his mental health, which was referred to in the skeleton argument before him. Permission is granted on all grounds because much of the substance of the grounds relates to the findings made by the judge on the basis of the appellant’s evidence which may (or may not) have been affected by his mental health.”
The Hearing
7. (a) Mr Solomon, counsel for the appellant, adopted the grounds of appeal and argued that the judge’s approach to the medical evidence was flawed. He told me that the scarring report was superficially considered by the Judge at [55] and [56] of the decision, and that no adequate reasons for finding that the expert report is incomplete had been given by the judge. He argued that the Judge failed to follow the guidance given in KV (scarring - medical evidence) [2014] UKUT 230 (IAC), and that the Judge had not given sufficient consideration to the appellants diagnosis of mental disorders. He argued that the Judge failed to take account of the evidence provided by the appellant’s sister.
(b) Mr Solomon told me the Judge had materially erred in law because the Judge found the appellant not to be a credible witness before turning to consideration of the medical evidence produced. The Judge then rejects the medical evidence and expert report because he finds the appellant is not credible. Mr Solomon argued that that was not the correct approach
(c) Mr Solomon argued that the Judge gave inadequate consideration to the appellant article 3 ECHR rights, and that the Judge took no account of the appellant’s diagnosis of mental disorder in his Article 3 ECHR assessment. He argued that the determination as a whole was inadequately reasoned, and that the Judge was incorrect to find that there was inconsistency in the various strands of the appellant’s evidence. He urged me to set the decision aside and to remit this case to the First-tier Tribunal to be determined of new.
8. (a) Ms Fijiwala, for the respondent, told me that the decision does not contain any errors and that the Judge carefully considered each strand of evidence placed before him, before reaching conclusions which were reasonably open to him. She argued that the decision contains a careful analysis of medical and expert evidence and that the Judge had followed the guidance in both KV (scarring - medical evidence) [2014] UKUT 230 (IAC) and GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). She relied on the cases of HH and Mibanga and told me there was nothing wrong with the Judge’s approach to either credibility or the medical evidence, arguing that “fact finders should not be put in a forensic straitjacket”.
(b) Ms Fijiwala argued that it was open to the judge to find the appellant was both vague and evasive in his evidence. She told me that the Judge carefully recorded cross examination of the appellant between [26] and [35], before setting out the appellant’s re-examination at [36]. She told me that those passages of evidence were inconsistent with the appellant’s witness statement and invited me to find that the Judge had properly assessed the medical evidence and reached the conclusion after correctly taking guidance from the relevant case law. She urged me to dismiss the appeal.
Analysis
9. In KV (scarring – medical evidence) Sri Lanka [2014] UKUT 00230 (IAC) it was held that (i) When preparing medico-legal reports doctors should not – and should not feel obliged to – reach conclusions about causation of scarring which go beyond their own clinical expertise; (ii) Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring; (iii) Where there is a presenting feature of the case that raises self-infliction by proxy (SIBP) as a more than fanciful possibility of the explanation for scarring:- (a) a medical report adduced on behalf of a claimant will be expected to engage with that issue; it cannot eliminate a priori or routinely the possibility of SIBP; and (b) a judicial fact-finder will be expected to address the matter, compatibly with procedural fairness, in deciding whether, on all the evidence, the claimant has discharged the burden of proving that he or she was reasonably likely to have been scarred by torturers against his or her will; (iv) a lack of correlation between a claimant’s account and what is revealed by a medical examination of the scarring may enable a medico-legal report to shed some clinical light on the issue of whether SIBP is a real possibility; (v) Whilst the medical literature continues to consider that scarring cannot be dated beyond 6 months from when it was inflicted, there is some medical basis for considering in relation to certain types of cases that its age can be determined up to 2 years; (vi) Whilst if best practice is followed medico-legal reports will make a critical evaluation of a claimant’s account of scarring said to have been caused by torture, such reports cannot be equated with an assessment to be undertaken by decision-makers in a legal context in which the burden of proof rests on the claimant and when one of the purposes of questioning is to test a claimant’s evidence so as to decide whether (to the lower standard) it is credible.
10. At [56] the Judge finds that Professor Lingham’s report is incomplete because it does not address self-infliction by proxy (SIBP). At page 5 of his report, Professor Lingham refers to KV, and reminds himself that when considering the possibility of SIBP he “… first of all will have to assess whether there are any presenting features in the patient’s scarring that cause me to enter this forum and make this assessment.” Professor Lingham does not thereafter return to consideration of SIBP. His opinion is at page 7 of the report, where he records inter alia
“There are a few non-specific scars but the one linear scar could assist me to collaborate the history of trauma”
What Professor Lingham means is far from clear. He frames his opinion in the conditional mood, and probably uses the word “collaborate” incorrectly. (“Collaborate” usually means to work jointly with another on an activity or project.)
11. Professor Lingham’s conclusion is at page 13 of his report, where he states
“I have not investigated any mental health issues. He still has problem sitting for a prolonged period. He stated that he is much stressed and has reported his sleeping problems. His memory is poor and he is having problem in concentrating and this is likely be due to the mental health issues. The perceived pain is also likely be due to mental scars”
12. The judge could only work with the material before him. His conclusion that Professor Lingham’s report is “incomplete” is clearly a finding of fact which the Judge was in a position to make....
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