Upper Tribunal (Immigration and asylum chamber), 2023-01-25, IA/00146/2021
| Appeal Number | IA/00146/2021 |
| Hearing Date | 13 December 2022 |
| Published date | 10 February 2023 |
| Date | 25 January 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: UI-2021-001325
First-tier Tribunal No: PA/52533/2020
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-001325 First-tier Tribunal No: PA/52533/2020 IA/00146/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 25 January 2023
Before
UPPER TRIBUNAL JUDGE BLUNDELL
DEPUTY UPPER TRIBUNAL JUDGE HANBURY
Between
RR (SRI LANKA)
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Dolan, instructed by ASK Solicitors
For the Respondent: Ms Ahmed, Senior Presenting Officer
Heard at Field House on 13 December 2022
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court. We make this order because the appellant is an asylum seeker.
DECISION AND REASONS
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The appellant is a Sri Lankan national who was born on 2 March 1978. He appeals, with permission granted by Judge Feeney, against the decision of First-tier Tribunal Judge R Hussain. By his decision of 17 August 2021, Judge Hussain (“the judge”) dismissed the appellant’s appeal against the respondent’s refusal of his protection and human rights claims.
Background
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The appellant entered the United Kingdom in April 2008. His asylum claim was made later that month and was refused very promptly the following year. An appeal was heard and dismissed by First-tier Tribunal Judge Chana in July 2008. Judge Chana did not accept that the appellant had encountered problems with the Sri Lankan authorities as a result of his association with a man called Mr Sritharan, or that he would be at risk on that account. Permission to appeal against that decision was refused and the appellant became appeal rights exhausted.
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The appellant did not leave the United Kingdom. He made further submissions in January 2017 but those submissions were not considered to amount to a fresh claim. Then, in July 2017, the appellant made a second set of further submissions. These submissions were drafted by his current solicitors and the primary assertion was that the appellant would be at risk in Sri Lanka on the basis of his pro-Tamil activities within the diaspora. Personal and background evidence was provided in support of these submissions. The submissions were supplemented, in August 2019, by a medico-legal report from an independent medical practitioner named Dr Goldwyn. In this report, Dr Goldwyn described the scars on the appellant’s body and considered them against the framework provided by the Istanbul Protocol. She also expressed opinions about the appellant’s mental health, stating that he was suffering from PTSD and severe depression.
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On 15 October 2020, the Secretary of State accepted that the appellant’s further submissions amounted to a fresh protection claim but she refused that claim on its merits, thereby enabling the appellant to appeal to the First-tier Tribunal for a second time.
The Appeal to the First-tier Tribunal
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The appellant appealed against the respondent’s decision and his appeal was heard by the judge, sitting remotely at Hatton Cross, on 6 July 2021. Both parties were represented by counsel. The appellant did not give evidence because Dr Goldwyn had opined in an addendum report dated 3 March 2021 that he was ‘in too fragile a mental state to be questioned in an adversarial manner’. The judge therefore heard submissions from counsel before reserving his decision.
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In his reserved decision, the judge took Judge Chana’s decision as his starting point and concluded, after considering the additional evidence provided by the appellant, including Dr Goldwyn’s reports, that he reached the same conclusion as regards the credibility of the appellant’s historical account. He did not accept that the appellant was at risk on account of his diaspora activities because there was ‘insufficient evidence of any prominent role or activity such that he would come to the attention of the Sri Lankan authorities’. He did not accept that the appellant’s return to Sri Lanka would be in breach of Article 3 ECHR on medical grounds because he did not accept that the appellant suffered from PTSD or that there was a risk of suicide.
The Appeal to the Upper Tribunal
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There are no fewer than eight grounds of appeal against the judge’s decision but they were helpfully grouped together by Mr Dolan in his able submissions. It was contended that the judge erred in law in his consideration of Dr Goldwyn’s evidence as to mental health and scarring; that the judge failed to consider the extant country guidance decision in evaluating the appellant’s sur place claim; and that there was no adequate consideration of the appellant’s Article 3 ECHR claim which was brought, as we have already noted, in reliance on his mental health problems.
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The respondent prepared a response to the grounds under rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. That had not been received by the Tribunal or Mr Dolan and Ms Ahmed provided copied immediately by email. Mr Dolan confirmed that he was not disadvantaged by this late service. Nor did he object to it.
Submissions
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In developing the grounds of appeal, Mr Dolan asked us to note what had been said about Dr Goldwyn’s report at [35] of the respondent’s decision: there was seemingly no disagreement over what was said in the report. The judge had erred, Mr Dolan submitted, in suggesting that Dr Goldwyn had not considered what had been said by Judge Chana; that decision was one of the documents which Dr Goldwyn had listed as having been provided to her. The expert had noted that she was aware of the appellant having made contradictory statements in the past. The judge had also erred in dismissing the report because it relied heavily on the appellant’s account; Dr Goldwyn had noted in her report that she had not done so, and had also taken clinical factors into account. It was obviously necessary for the judge to come to his own conclusion about the appellant’s mental health but he was required to adopt a lawful approach to the medical evidence en route to that conclusion. That was particularly so when the respondent’s stance was as set out at [35] of the decision under appeal.
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As for the appellant’s scarring, it was important to note that the appellant had not produced a report before Judge Chana, and that she had refused an adjournment application made by counsel in order that such a report could be obtained. Dr Goldwyn had considered the scarring and had used the Istanbul Protocol in order to gauge the consistency of that scarring with the causes claimed by the appellant. Whatever the reason, Judge Chana had not had that evidence. The judge had observed that the scars did not ‘necessarily’ lead to the conclusion that the appellant had been ill-treated in the manner claimed. The use of the adverb suggested that the judge had misdirected himself in law.
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As for the sur place claim, Mr Dolan accepted that there was relatively scant evidence in support of this limb of the appeal. It was expressly relied upon by the appellant, however, and it was for the judge to resolve it lawfully. He had failed to do so because he had failed to consider the country guidance given in KK & RS (Sri Lanka) CG [2021] UKUT 130 (IAC) and had consequently erred in his reference to the appellant not having a ‘prominent’ role.
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Mr Dolan submitted finally that the judge had erred in his consideration of the Article 3 ECHR medical claim; there had been no adequate analysis of what was said by Dr Goldwyn and no application of the leading authorities on the point.
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For the respondent, Ms Ahmed submitted that there was no legal error in the decision of the FtT. This was a case to which Devaseelan [2003] Imm AR 1 applied and Judge Chana had given extensive reason for finding against the appellant. The judge had given sound reasons for rejecting Dr Goldwyn’s opinion, not least of which was the fact that he had not sought or received any treatment from the NHS for his mental health. The grounds of appeal were in error in suggesting that the judge had rejected Dr Goldwyn’s opinions merely because the appellant had been found incredible by Judge Chana. The judge’s paragraph [23] was to be considered as a whole. It was correct that the expert had relied heavily on the appellant’s account and that the expert had not considered the difficulties identified by Judge Chana with the appellant’s narrative.
The judge’s consideration of the appellant’s scarring was adequate. The observation that no scarring report had been provided to Judge Chana was not the crux of the judge’s analysis. The judge had focused, instead, on the reality of the scarring, which was that the scars were only consistent or highly consistent with the appellant’s account and did not add much. The judge’s observation that the scars did...
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