Upper Tribunal (Immigration and asylum chamber), 2020-07-02, PA/09402/2019
| Jurisdiction | UK Non-devolved |
| Date | 02 July 2020 |
| Published date | 16 July 2020 |
| Hearing Date | 12 May 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/09402/2019 |
Appeal Number: PA/09402/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09402/2019 (P1)
THE IMMIGRATION ACTS
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Decided under Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 On 12th May 2020 |
Decision & Reasons Promulgated On 02nd July 2020 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Mr BM
(aNONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Submissions received:
For the Appellant: Mr R Solomon on 16th April 2020
For the Respondent: Mr A McVeety on 27th April 2020
DECISION AND REASONS
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity owing to the sensitive matters within the decision. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
I have had regard to the Pilot Practice Direction: Contingency arrangements in the First-tier Tribunal and the Upper Tribunal 2020 and the Presidential Guidance Note No. 1 2020.
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The Tribunal may pursuant to Rules 34 of The Tribunal Procedure (Upper Tribunal) Rules 2008 (as amended) (“the Upper Tribunal Procedure Rules”) make decisions in appeals without a hearing. The Upper Tribunal gave the provisional direction owing to the Covid-19 pandemic that the decision on the error of law in this matter could be determined on the papers and invited submissions from both parties. I have had regard to the views of both parties pursuant to rule 34(2) of The Upper Tribunal Procedure Rules.
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Mr Solomon submitted that the matter could be determined on the papers and the matter be remitted to the First-tier Tribunal should the First-tier Tribunal decision be set aside.
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Mr McVeety noted that owing to the lengthy grounds and that permission had been granted on all points and stated that an oral hearing would be ‘preferable’ but in the event the Tribunal was minded to proceed without an oral hearing he attached further submissions. In these terms I consider that the Secretary of State consented to the error of law being determined on the papers.
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Further, I bear in mind the principles established in Osborn v The Parole Board [2013] UKSC 61. I have concluded that the matter although complex factually does not require, in the interests of justice and fairness, a hearing to determine the matters. Both parties are legally represented, and issues have been clearly explained and their views on the grounds fully set out. As a result, I find that the legal issues have crystallised and lend themselves to a paper distillation and analysis. Both parties have had a fair opportunity to put their case in advance of the determination on the type of hearing for the error of law determination and I am not persuaded that an oral hearing would make a material difference.
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The appellant appealed with permission against the decision of First-tier Tribunal Judge Hawden-Beal promulgated on 20th December 2019 which dismissed the appellant’s appeal on protection and human rights grounds.
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The appellant a Sri Lankan national arrived in the UK on a Tier 4 student visa in September 2010 and his asylum claim refused. He claimed that he had been a supporter of the LTTE and was at risk on return. His appeal was dismissed by Designated Immigration Judge Woodcraft in March 2012, who made adverse credibility findings. The appellant made further submissions in 2019 which were refused. He again asserted he had been detained and mistreated by the Sri Lankan authorities and further he had engaged in political activity in support of the Tamil cause since he had been in the UK. In his appeal to the First-tier Tribunal in 2019 he provided extensive further evidence from that considered in 2012, in the form of medical evidence which diagnosed PTSD (Drs Goldwyn and Dhumad), an expert report from Mr Chris Smith dated 25th November 2019, a copy of a complaint made by the appellant’s aunt to the Human Rights Commission of Sri Lanka dated 9th June 2017 and country background material including reports by the USSD, UNHCR, Amnesty International, Human Rights Watch and the respondent’s most recent Country Policy and Information Notes (“CPIN”) on Sri Lanka.
Grounds of Appeal
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The grounds of appeal submitted that the judge had erred in the following respects.
Ground 1
The judge had misapplied the guidance issued in Devaseelan v SSHD [2002] UKIAT 00702 when deciding that the “new evidence” did not include the new medical reports, the country expert report and the new country guidance of GJ and others (post civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).
(i) there was a strong medical evidence to explain the appellant’s memory problems and this had an impact on any previous alleged evidential discrepancies. The medical evidence found the appellant with “significant cognitive impairment” PTSD, severe depression and memory loss which were not feigned or exaggerated. The judge had not engaged with this evidence adequately or at all.
(ii) the country expert Chris Smith found that the payment of a bribe and ability to leave on the appellant’s passport did not undermine his case and was plausible and that approach was confirmed in the country guidance of GJ.
(iii) there was clear medical evidence of physical and psychological injuries sustained during detention and it is noteworthy that the judge accepted at paragraph 38 that the appellant may well have been detained during a roundup.
The new evidence affected the findings of the Judge Woodcraft and the starting point principle was not a legal straitjacket but permitted judicial fact finders to depart from earlier judicial decisions. The judge had not followed the guidance.
Ground 2
At paragraph 39 the judge erred in treating the new expert evidence regarding paying a bribe and being able to leave on a passport as neutral. This was a not a neutral matter.
Ground 3
The judge failed to give anxious scrutiny and proper weight consideration to the medical evidence and stated at paragraph 38 “he may well have been detained, but there is no new evidence before me to indicate that he was tortured or released upon payment of a bribe”.
(i) the judge failed to address the very clear finding that the scarring and mental health evidence was new evidence and overall typical of the account of torture and failed to give clear reasons for doing so in line with BN (psychiatric evidence-discrepancies) Albania [2010] UKUT 279(IAC). The judge further erred in considering the scars separately without considering the evidence overall. The reports should have been dealt with as an integral part of the findings on credibility as per Mibanga [2005] EWCA Civ 367.
Ground 4
The judge erred in her assessment of scar evidence which extended to 8 scars not to two and KP (Sri Lanka) v SSHD [2007] EWCA Civ 62 identified that physical scarring was consistent with the type of treatment meted out in Sri Lankan cases involving ill-treatment in detention.
Ground 5
The judge failed to assess the new evidence particularly the CID book and complaint by the aunt to the Human rights Commission of Sri Lanka in the context of country information and expert evidence, ignoring in particular, at paragraph 22 the respondent’s CPIN at 13.1.2 which identified that in several cases witnesses mentioned that members of their family had been questioned about their participation in anti-government activities abroad and had been shown photographs. This indicated the Sri Lankan security forces were monitoring gatherings outside the country and the judge had country evidence which explained why the authorities would be interested in the appellant but failed to give this consideration or explain why the evidence was rejected.
Ground 6
The judge failed to consider the medical evidence and failed to address the impact of the severity of the appellant’s mental health and his ability to deal with questioning on arrival regarding his history. This point was raised by the expert Mr C Smith and relevant to risk on return but was not addressed at paragraph 48 of the decision under challenge.
Ground 7
The judge failed to assess the expert evidence of Mr C Smith who provided detailed report which supported the appellant’s history was plausible in the context of the country evidence. That failure was contrary to Detamu v SSHD [2006] EWCA Civ 604 and FS (treatment of expert evidence) Somalia [2009} UKAIT 00004.
Ground 8
In the light of the above, the judge failed to properly evaluate the evidence from the appellant...
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