Upper Tribunal (Immigration and asylum chamber), 2015-11-26, [2015] UKUT 678 (IAC) (R (on the application of J) v Secretary of State for the Home Department (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Peter Lane |
| Status | Reported |
| Date | 26 November 2015 |
| Published date | 11 December 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 30 October 2015 |
| Subject Matter | IJR |
| Appeal Number | [2015] UKUT 678 (IAC) |
IN THE UPPER TRIBUNAL
EXTEMPORE JUDGMENT
Given orally at Field House on 30th October 2015
R (on the application of J) v Secretary of State for the Home Department IJR [2015] UKUT 00678 (IAC)
Field House
London
30th October 2015
The QUEEN
(ON The application OF)
J
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
Upper Tribunal Judge PETER LANE
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Mr O Shibli, instructed by Lawrence Lupin Solicitors appeared on behalf of the applicant.
Mr Z Malik, instructed by Government Legal Department appeared on behalf of the respondent.
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ON AN APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
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JUDGE PETER lane: This is an application for judicial review of the respondent’s decision of 27th June 2013 not to treat the applicant’s submissions as a fresh asylum or human rights claim. Permission was refused on the papers by the Upper Tribunal but granted by the President of the Upper Tribunal, Immigration and Asylum Chamber on 5th January 2015.
2. The President dealt in some detail with the nature of the challenge. He noted that the applicant was a national of Sierra Leone, aged 28 years. She had been in the United Kingdom since 2009 when she entered without permission and made an asylum claim. In November 2009 the First-tier Tribunal dismissed her appeal on all grounds. In doing so the First-tier Judge found that the applicant entered fraudulently by using another person’s passport and that her claim for asylum was not raised until removal directions had been served on her.
3. The President noted that fresh evidence had been submitted on a number of occasions on behalf of the applicant since mid-2010. This evidence was said to show multiple rape and inhuman treatment allegedly perpetrated upon the applicant when she had been kidnapped in Sierra Leone by rebel soldiers.
4. The President then made reference to subsequent events, culminating in the decision of 27th June 2013 which is under challenge. The President noted that the new material upon which the applicant relied consisted of three professional reports and medical records. I shall come to those in due course.
5. The President considered that the writer of the decision letter had attributed what he described as scant weight to these reports, on the ground that the First-tier Tribunal had found the applicant’s claim to be a fabrication. Having set out the legal test for assessing a fresh claim, namely whether there is a reasonable likelihood of a hypothetical judge reaching a conclusion in the applicant’s favour, the President reminded himself that the test he had to apply at the permission stage was in effect relatively modest.
6. The President held that for the purposes of establishing an arguable case he was satisfied that the applicant overcame that modest threshold. In particular, he considered that the impugned decision arguably did not apply the correct tests and attributed what he described as disproportionate weight to the findings of the First-tier Tribunal. Further, there were indications that the decision-maker failed to juxtapose the new representations with the previous ones; approached the decision with a closed mind, fettering her discretion in consequence; and failed to apply the requisite standard of anxious scrutiny. The President then gave certain directions, one of which related to the service of evidence, to which I shall return.
7. At the beginning of this hearing, I heard an application by Mr Shibli on behalf of the applicant for the hearing to be adjourned. I have given my decision on that application. I decided not to grant it and therefore heard submissions from Mr Shibli and Mr Malik. I am grateful to both of them for their characteristically able contributions.
8. Mr Shibli described what he regards as a wealth of medical evidence and sought to juxtapose that evidence, on the one hand, with what he says is the inadequate way in which it was dealt with in the decision letter. We see in the decision which begins at page 168 of the bundle that certain submissions said to have been previously considered were dealt with in the following way:
“You provided medical evidence to support your claim as part of the further submissions you previously lodged. This evidence was considered in line with the Secretary of State for the Home Department’s published policy on Medical Foundation evidence. However, it was considered that following the adverse credibility findings of the Immigration Judge, the evidence did not establish that your injuries had been caused in the way you described. Therefore it is considered that this issue has previously been fully considered. However, the new evidence that you have provided will be considered below in section 2.”
9. The Medical Foundation evidence is a report of Dr Cheal. We find it at page 72 of the bundle. Mr Shibli drew my particular attention to passages beginning at page 78. There we find the examiner noting that the applicant had multiple scars on her arms and legs which were “highly consistent” with cigarette burns. A large number of scars were noted. The examiner said that, although these could have other causes, there was nothing in the applicant’s history to suggest another cause.
10. Furthermore, whilst each individual scar could have another explanation, the fact that the scars were so many and spread over the appellant’s arms and legs was compatible with the story she gave of being held down by one soldier to be raped while another was burning her limbs with cigarettes. At paragraph 19 we find a statement that scars to the applicant’s feet were also “highly consistent” with the history she gave. At paragraph 20 the examiner noted that the applicant did not attempt to attribute all her scars to abuse. That is plainly of relevance, in that it may well be a factor going to the credibility of the applicant regarding the causes of the other scars. The examiner also made a view on the age of the applicant, effectively disagreeing with the Immigration Judge, who had considered the applicant to be older than she claimed.
11. Mr Shibli makes the point that, in using the language of high consistency, the examiner in this report was plainly using the terminology of the Istanbul Protocol, which is an established international instrument for assessing the relevance of scars and other injuries to the issue of credibility in claims for international protection.
12. Mr Shibli then turned to the report of Dr McKay and again contrasted what was said about that in the decision with the nature of the report itself. We find that report set out in the bundle beginning at page 102. Dr McKay sets out his qualifications. At page 115 paragraph 94 Dr McKay expressly considered the issue of whether the applicant was malingering and decided for the reasons he gave at paragraphs 95 and 96 that she was not. At paragraph 96 he said that whilst it was easy to feign one or two symptoms, it was less easy to feign an entire syndrome. That would require in his view a sophisticated understanding of psychiatric symptomatology, which he considered to be “unlikely”. This reinforced Dr McKay’s diagnosis of post-traumatic stress disorder. Those aspects of Dr McKay’s report, Mr Shibli said, did not find expression in the Secretary of State’s decision. If one looks at page 169 of the bundle, one does not see reference made to them; although it is the case, as Mr Malik pointed out, that other aspects of the report are dealt with.
13. There is also a report at page 126 of Ms Massamba, who is a social worker. Her evidence is relevant, in that she found the applicant to be suffering from a pelvic inflammatory disease.
14. There were also medical notes before the respondent, emanating from the medical officers at Yarl’s Wood, where the applicant was being confined. Again, they post-dated the decision of the Immigration Judge. Amongst other things, they noted cigarette burns on the applicant’s body, as well as other scars. That matter also, Mr Shibli submitted, is inadequately dealt with in the letter.
15. Mr Shibli drew my attention to various pieces of case law including R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521, where it was in effect held that there had been an inadequate consideration of medical evidence that was similar, Mr Shibli says, to the material before the Tribunal in the present proceedings. Reference was also made to the case of Virjon B [2002] EWHC 1469 (Admin) where, Mr Shibli said, similar observations could be found.
16. All of this, Mr Shibli submits, leads to the applicant having, in his words, no confidence in the respondent’s offer, made on 16th March 2015, after the grant of permission, to deal with this case by considering all the relevant material again in the light of the further submissions and materials that were submitted in February 2015. The further evidence...
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