United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-FH-CK-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/10804/2019 ('V')

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House and also by Teams On 16 th August 2021

Decision & Reasons Promulgated On 04 th October 2021

 

 

Before

 

UPPER TRIBUNAL JUDGE KEITH

 

 

Between

 

'PV'

(ANONYMITY DIRECTIONS continue)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr A Jafar, instructed by Liyon Legal Ltd

For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              I had indicated to the representatives at the beginning of the hearing, by virtue of it being a hybrid hearing, with Ms Cunha attending in person and Mr Jafar attending via Teams, that if either had any difficulties in seeing or hearing me or one another they should let me know. There were two occasions during the hearing when, through no fault of his own, Mr Jafar froze on the screen before us, had to leave the hearing and then re-enter after a number of minutes. Whilst at the time this caused disruption, on each occasion, I went through with him the points made until contact between us froze, to ensure that I had had the benefit of his submissions. Therefore, whilst not ideal, I am satisfied that the parties have been able to participate effectively and fairly in the hearing.

The immigration history

2.              The appellant, a Sri Lankan national, has made two protection claims. He originally entered the UK in 2010, on a student visit visa, and then returned to Sri Lanka in 2012. Later, in September 2012, he re-entered the UK, with leave to remain until 7 ^th June 2014. He overstayed and claimed asylum on the first occasion on 16 ^th October 2017. That asylum claim was refused on 16 ^th April 2018. He appealed and his appeal was considered by a Judge of the First-tier Tribunal, Judge Chudleigh, who promulgated her decision on 25 ^th June 2018, refusing his appeal. The appellant appealed against that decision. Permission to appeal to the Upper Tribunal was granted on 8 ^th August 2018, but at a substantive hearing, the appellant's appeal was dismissed by the Upper Tribunal on 10 ^th October 2018. He further sought permission to appeal to the Court of Appeal, which was refused on 5 ^th May 2019.

The respondent's decision under challenge

3.              The appellant made further submissions on 25 ^th June 2019, which the respondent accepted as a fresh claim for the purpose of paragraph 353 of the Immigration Rules. The respondent considered the fresh claim in her refusal decision of 14 ^th October 2019, and which was considered in a second First-tier Tribunal decision (Judge Norris) (the 'FtT') promulgated on 4 ^th February 2020, which is the subject of this appeal.

4.              In respect of the fresh claim, the respondent considered the well-known authority of Devaseelan [2002] UKIAT 00702 and took Judge Chudleigh's decision as her starting point. In her reasons for refusal, the respondent recited a number of passages of Judge Chudleigh's decision, noting in particular, discrepancies in, and implausibility of, the appellant's account as to his imputed political support for the LTTE.

5.              The respondent considered a letter said to be from the appellant's attorney in Sri Lanka, who had referred to a prosecution filed by the Sri Lankan Criminal Investigation Department, which the respondent did not accept as reliable.

6.              The respondent also considered an expert report prepared Dr Phyllis Turvill of the Helen Bamber Foundation, which dealt with scarring and a claim of PTSD. An initial report had been before Judge Chudleigh but, it was said, importantly, the original report had not opined on the possible reasons for the scarring in question and was said therefore not to be in compliance with the Istanbul Protocol. In contrast, in the updated report, Dr Turvill made a detailed assessment by reference to the likelihood or plausibility of the scarring being for the reasons claimed by the appellant, in compliance with the Istanbul Protocol.

7.              The respondent accepted Dr Turvill's expertise, noting in particular the context of her credentials with the Helen Bamber Foundation; and that she had made a detailed assessment. The respondent accepted that Dr Turvill had referred to various scars as being either consistent or highly consistent with the account of torture as asserted but also went on to consider the possibility of deliberate self-harm which she had discounted as they did not fit the pattern of injuries. The appellant's scars were consistent or highly consistent with his attribution. None of the injuries were said to be inconsistent with the history he gave and considered overall, it was medically plausible that the appellant's injuries were deliberately caused by a third party. Dr Turvill had also considered the appellant's depression and PTSD, although these conditions do not feature in the submissions made to me.

8.              The respondent that the scars could have been caused by a third party, but did not accept who that third party might be. The respondent was also concerned that Dr Turvill stated that she had studied all of the evidence, but had not considered a claim of a chin injury, to which Judge Chudleigh had referred. The respondent finally considered that the appellant had been able to leave Sri Lanka on his own passport.

9.              The respondent refused the fresh protection claim. It was that decision that came before the FtT.

The FtT's decision

10.          The FtT considered Dr Turvill's report at §§7.2 to 7.8 of her decision, but was concerned about the fact that there was no scar on the appellant's chin, which the appellant had referred to in his asylum interview and about which Dr Turvill had made no mention (she analysed numerous other scars). Moreover, at §7.11, while the FtT accepted that Dr Turvill's conclusions were not against the appellant, in that they confirmed his scarring was plausibly caused by a third party, in the FtT's view, this took her no further than the case before Judge Chudleigh. It did not assist her in reaching a conclusion that the injuries were sustained as the appellant described. His underlying account remained unreliable for the reasons set out by Judge Chudleigh, including the lack of consistency with the country guidance; a significant delay without good explanation in claiming asylum; and the lack of interest by the authorities in the appellant's father.

11.          Moreover, at §§7.5 and 7.6 of her decision, the FtT was critical of a further translation of correspondence from the appellant's father. An original copy of the correspondence had referred to the appellant's father as having opened the door to the appellant's persecutors at their home in Sri Lanka, which was said to be inconsistent with th appellant's witness statement that the appellant's mother had opened the door. A further translation of the letter from the father omitted the word "I" and explained that there had been a mistranslation. The FtT regarded the explanation and second translation as incoherent and lacking grammatic sense. She dismissed the appellant's appeal.

The appellant's appeal

12.          The appellant appealed against the respondent's decision and permission was granted by Upper Tribunal Judge Norton-Taylor on all grounds. I summarise these three grounds below.

13.          The first ground was that the FtT had failed to place proper weight on the assessment of the causation of scarring, some of which was said to be highly consistent with the appellant's account. Any suggestion that Dr Turvill's report took the FtT "no further" ignored precisely the point that the first report before Judge Chudleigh had not given an assessment as to the cause of scarring. In contrast, before Judge Norris, there was an Istanbul Protocol-compliant assessment, some of which assessed the scarring as highly consistent with the cause attributed by the appellant, and none was inconsistent. It was not enough for the FtT to refer to the inconsistencies in the appellant's narrative without considering the evidence in the round. The FtT had impermissibly treated herself as bound by Judge Chudleigh's decision, rather than taking it as her starting point.

14.          The second ground was that having placed insufficient weight on the cause of visible scarring, the FtT dwelt impermissibly on an invisible scar. In particular, the report of Dr Turvill had not made any reference to the injury that the appellant claimed to have sustained in relation to his chin just as an earlier expert had not referred to the chin injury. Two errors resulted from the FtT's analysis. The first was as per the authority of Junaid v SSHD (01/TH/02540), namely to draw adverse inferences from the absence of scarring, when scars could heal. This was backed up by a UNHCR document, titled "The Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture", which stated:

"To the extent that physical evidence of torture exists it provides important confirmatory evidence that a person was tortured. However, the absence of such physical evidence must not be construed to suggest that torture did not occur, since such acts of violence against persons frequently leave no marks or permanent scars."

15.          The second error was in the FtT adopting the role of an expert, in concluding that it was highly unlikely for an injury to have been sustained, if the scarring was no longer visible to two clinicians in less than a decade later, where the appellant had complained about such serious ill-treatment. Dr Turvill's report had stated, at §42, that there could be detailed reasons why scarring might fade including where on the body the scar was, the size and depth of the wound, the tension of wound edges, wound hygiene and infection, medical intervention such as antibiotics and intercurrent illness and malnutrition. Where skin damage was superficial, skin could regenerate in a few weeks.

16.          The third ground was in relation to the adverse inferences drawn from the second translation of the father's letter. The FtT had had concerns about the translation of the letter where its accuracy had been certified by a UK solicitor and officer of this court. It was impermissible to draw adverse inferences, where the appellant had done all he could to identify and correct the mistranslation, and the respondent had the original, untranslated document that she could verify.

The hearing before me

The appellant's oral submissions

17.          Mr Jafar reiterated the three grounds of appeal. The FtT had not given a reasoned basis for rejecting Dr Turvill's report, which was important corroboration. The FtT had impermissibly regarded herself as bound by the assessment of Judge Chudleigh and not approached the evidence independently, as recommended by the authority of LD (Algeria) v SSHD [2004] EWCA Civ 804. The Helen Bamber Foundation was recognised as an authoritative and reputable organisation. In her report, Dr Turvill had provided a detailed analysis of consistency and had considered alternative causes and given a view in the round. She had also gone on to consider at §§72 and 73 the appellant's depression and PTSD. She had reached the conclusion at §85 that the scars were consistent or highly consistent with the appellant's attribution. The FtT had not explained why she had given such limited weight to the report. Instead, she had focussed on the absence of a reference to the chin scar, mentioned by the appellant in an asylum interview. The reason why Dr Turvill had not discussed the chin scar in her report was simple - it was not visible. It was not fair to reject credibility on the basis of the visibility of a scar.

18.          In relation to the final ground, whilst it may be that the wording in the second version of the translation did not make particular sense, there was nevertheless merit in both of the first two grounds. Mr Jafar reiterated again that the second version of the translation had been signed by a solicitor and officer of this court and therefore should have been given some weight.

The respondent's response

19.          Ms Cunha asserted that the appellant's challenge was merely a disagreement with the FtT's findings. The FtT was entitled to treat the new evidence with a degree of circumspection and to consider why the material had not been before Judge Chudleigh. Whilst the Helen Bamber Foundation was a reputable organisation, §§61 and 62 of MS (Zimbabwe) v SSHD [2021] EWCA Civ 941 confirmed that the FtT was not bound to accept expert evidence and was able to carry out an assessment of her own. The FtT was also entitled to consider, at §§4.3, 5.2 and 7.2, the absence of explanation for the lack of visibility of the scar and she was entitled to have expected the report to address this point.

20.          I discussed with Ms Cunha whether the FtT's reference to Dr Turvill saying that scarring was probably caused by a third party, misunderstood Dr Turvill's report, because Dr Turvill meant that the scarring was consistent or highly consistent with the appellant's attributions, rather than any suggestion of self-inflicted harm. Ms Cunha said that even if the FtT had misunderstood Dr Turvill's report, it was a minor error and did not affect the rigour of the overall analysis.

Discussion

21.          I refer to the third ground first, as it is the most straightforward. The ground referred to the two translations, certified by a solicitors' firm in the UK, of a letter from the appellant's father, before the FtT, and an accompanying explanation. The first version of the correspondence, which is at pages B[68] to [70] of the FtT's bundle had stated:

Page B[68]:

"On hearing knocks on the door early in the dawn we woke up. As I opened the door I saw five unknown persons standing beside it."

The translation is signed with a statement of truth that said: "I am sufficiently proficient in Sinhala and this is a true and accurate translation made to the best of my knowledge of a handwritten plea from [the appellant's mother] and my interest in this matter is confined solely to the translation of text therein." There is a signature with a named person, not identified as a solicitor, but by reference to S Satha & Co Solicitors, with the date of 30 ^th May 2018.

22.          The second translation on of the letter is at pages A[73] to [75]. This too was sworn as being a true and accurate translation, but the named person is stated as being a solicitor in England and Wales, albeit from the same law firm.

23.          Put simply, both were therefore certified as true and accurate translations, the first by reference to a law firm, albeit not by a solicitor, the second by a solicitor. The wording of the second translation is different and states:

"On hearing knocks on the door early in the dawn we woke up. When open the door I saw five unnamed persons standing beside it."

24.          There was then a letter of explanation at page [72], which referred to a mistake regarding the previous letter. It was said by the appellant that the FtT's concern, which she referred to at §§7.2 to 7.8 of her decision, that the second translation made no sense, was not a permissible observation on which to base an adverse credibility finding. Mr Jafar began, in his oral submissions, by paraphrasing the wording as "the door was opened." While I do not suggest that he was attempting to mislead, the second translation does not say this. The FtT was, in my view, entitled to take into account that both translations had been from a UK supervised law firm and that the wording of the second translation did not make linguistic sense (see §7.8). In that context, the FtT was entitled to have concerns about how the original alleged mistake came to be made and who carried out the first translation. The FtT did not err in drawing adverse inferences from the inconsistency between the first translation and the appellant's account.

25.          Turning to the first two grounds, the expertise of Dr Turvill is not disputed. Whilst her report does not have to be automatically accepted by a Tribunal, it nevertheless is one of a number of pieces of evidence that the Tribunal has to assess, and explain that assessment. The FtT's assessment, at §7.11, is as follows: " It does not assist me towards a conclusion that the injuries were sustained as the appellant describes because his underlying account remains unreliable ...".

26.          That reasoning falls into the classic " Mibanga" error (see Mibanga v SSHD [2005] EWCA Civ 367), namely to discount the evidence because of a view already formed of credibility (see §25 of Mibanga). Instead, evidence on scarring causation needed to be addressed and analysed, in the context of all of the evidence. The FtT's analysis on causation was limited to §7.4 of her decision:

"The appellant did not seek to attribute all of his scars to the assault, and his overall account is plausible from the medical point of view. However, Dr Turvill also concludes that it is "medically plausible" that the injuries were deliberately caused by a third party. Mr Kumudusena was unable to assist me on the point."

27.          There appears to be an implication (the use of the word "however"), that the scarring may have been self-inflicted by proxy, although the reasoning is not clear. If that was a concern of the FtT, it was to take Dr Turvill's comment on plausibility out of context. Dr Turvill had considered possible accidental causes of the scarring (including a road traffic accident). She then considered self-induced harm at §55 of her report:

"I have considered the possibility of deliberate self-harm and discounted it because [the appellant's] injuries do not fit the pattern of this; they are on the whole not superficial, or grouped, and he has no past history."

28.          At §56, she continued:

"Paragraph 188 of the Istanbul Protocol states that "Ultimately it is the overall evaluation of the lesions and not the consistency of each lesion with a particular form of torture that is important in the assessment of the torture story". In [the appellant's] case he has scars, lesions and other physical injuries which are highly consistent with, or typical of his attribution. None of the injuries are inconsistent with the history he gives. Considered overall it is medically plausible that [the appellant's] injuries were deliberately caused by a third party."

29.          Dr Turvill's comment about the injuries being deliberately caused by a third party followed immediately from her comment about the consistency with the appellant's attribution. Dr Turvill expressed no view on the possibility of self-inflicted harm by proxy, nor does it appear that the FtT directly asked or put this possibility to the appellant's representative. In the circumstances, it is hardly surprising that Mr Kumudusena was unable to comment, when he was not expressly asked about harm by proxy. Dr Turvill's view of the consistency in causation (causation by a third party) appears to have been treated by the FtT as adverse to the appellant. When read fairly in context, her view appears to support the applicant's case. Any implication to the contrary is not adequately explained by the FtT.

30.          In summary, in relation to the first ground, I accept that the FtT erred in law in failing to analyse the evidence as a whole, including the scarring evidence. The FtT discounted the scarring evidence on the basis of her view, already formed, of the appellant's credibility.

31.          I turn next to the second ground and the reference to concerns about the absence of discussion of a chin scar. Dr Turvill's report did not deal with the chin scar, as it appears common ground that it is not visible. Dr Turvill explained at §42 of her report why scars might fade. In my view, the FtT erred in law in failing to engage with that explanation and instead speculated, without a proper analysis, that it was unlikely that an injury would no longer be visible, less than a decade later.

 

 

Conclusions

32.          The FtT did not err in drawing adverse credibility findings in relation to differing translations of correspondence from the appellant's father. That ground is not sustained. However, the FtT did err in her assessment of Dr Turvill's report, in the context of the evidence as a whole. That goes to the heart of her assessment of the appellant's credibility. In the circumstances, her decision is unsafe and cannot stand. There are no preserved findings. The decision of Judge Chudleigh remains unaffected by this decision.

Disposal

33.          With reference to paragraph 7.2 of the Senior President's Practice Statement and the necessary fact-finding, this is clearly a case that has to be remitted to the First-tier Tribunal for a complete rehearing.

34.          The remittal shall involve a complete rehearing of the appeal. All aspects of the claims must be addressed.

 

Notice of Decision

The decision of the First-tier Tribunal contains material errors of law and I set it aside.

I remit this appeal to the First-tier Tribunal for a complete rehearing.

 

Directions to the First-tier Tribunal

This appeal is remitted to the First-tier Tribunal for a complete rehearing with no preserved findings of fact.

The remitted appeal shall not be heard by First-tier Tribunal Judge Norris.

The anonymity directions continue to apply.

 

Signed J Keith Date: 19 ^th August 2021

Upper Tribunal Judge Keith