FS (Iraq) v Secretary of State for the Home Department

This is a renewed application for permission to appeal against a decision of the Asylum and Immigration Tribunal dismissing an appeal by the applicant against a determination by Immigration Judge Dearden promulgated on 21 February 2006. By the time the matter reached the Immigration Judge there was no longer an asylum claim, but there was a claim that the removal of FS to his country of origin, Iraq, would contravene his Article 3 rights.

The basis of his claim was that he suffered from a conspicuous physical disability affecting one eye and some degree of mental retardation assessed by a psychiatrist, Dr Barrett, as mild to moderate. It was said that this had led to him being shunned in society to an extent that amounted to a breach of his Article 3 rights and that he had ceased to have protection from his family. Accordingly his return to Iraq, would involve a breach of his Convention rights.

Part of his case was that in 2000 he had been severely assaulted by strangers for no other reason than his inability to help them when they asked him for an address. In January 2005 he was walking along a road when he was abducted by terrorists for reasons unknown to him. He managed to escape and the driver of a following car called the police, but his abductors had by this time made off. It was not suggested that either of those attacks was motivated by a desire to injure people who suffer from physical disabilities, but it is said that the effect of the first attack was to make his ability to look after himself still weaker and so place a greater burden on his family in trying to support somebody who was a social pariah for reasons of disability.

At the hearing before the Immigration Judge an unsuccessful application was made for an adjournment for various reports. Before the Immigration Appeal Tribunal a number of grounds were advanced, including as the principal ground the Immigration Judge’s refusal to allow an adjournment. That is now effectively the sole ground pursued on this renewed application. It is argued that the Immigration Judge ought to have adjourned the case, and that his failure to do so resulted in material unfairness at the hearing. In particular it is said to have led to an adverse credibility finding on a particular point which was critical to the case.

The reasons why an adjournment was sought fell into two separate categories. First, Dr Barrett expressed concern whether FS would be able to present his case coherently and to what extent any account that he gave might be reliable. Dr Barrett said that this is a highly specialised branch of medicine in which he is not an expert, and FS needed to be examined by an expert in this field who could assist by assessing his ability to give a coherent account of events, could help in any assessment of his reliability and could perhaps suggest ways in which he could be assisted to give a coherent and reliable account.

This was plainly an important matter. Courts are becoming, not before time, much more conscious of the need to help vulnerable witnesses. If a party is unable to put forward his best account through lack of appropriate assistance in the way he gives evidence there would be every likelihood of an Article 6 breach. The Immigration Judge decided to get on with the hearing and to see how the matter went in order to be able to ascertain whether FS was able to give a coherent account. He found that he was. In this respect, and for this reason only, he referred to FS’s demeanour. It should be stressed that he was not referring to his demeanour in any way as a basis for assessing his credibility but merely in order to satisfy himself that FS appeared to be understanding the proceedings and able to take a full and fair part in them. He said in paragraph 20 of his determination:

“I resolve to hear some evidence from the Appellant and then assess what I thought of his ability overall.”

He then went on to record that the applicant was able to give a coherent account of things. He said as follows:

“It would be very unusual for me to comment on anyone’s demeanour whilst in court but in view of my refusing the adjournment for further reports and in view of the assertions made in the existing psychiatric report I do so now. The Appellant initially did not seem to be very willing to answer questions which were addressed to him, but he listened patiently to the interpreter and waited until he had finished before replying. Even though I did not understand what he was saying it was apparent to me that the Appellant was speaking in coherent sentences; indeed when asked questions he answered them, not seeking to prevaricate in the slightest. The Appellant and the interpreter obviously had a decent rapport, each looking at the other. The Appellant answered the question which was asked of him very soon after the interpreter had finished speaking. There was no hesitation before the Appellant answered the question which was addressed to him. The longer the Appellant gave evidence the more confident he became and he produced what I can describe as a coherent and ordered account as to what had happened to him and the fears which he had. Even if the Appellant is of low intelligence or retarded ability he certainly gave a decent account of himself which was ordered and coherent.”

There is a further criticism that a specialist report might have been able to help in assessing the applicant’s reliability as distinct from his ability to express himself coherently. One asks rhetorically what assistance that would have been. Any specialist would have had to have expressed an opinion as to his credibility in general terms and clearly could not take on the mantle of deciding whether his assertion on some particular fact was truthful or not; that would not be a role for an expert psychiatrist. He could comment in general terms on the credibility and reliability of the individual insofar as there was a medical basis for questioning his reliability or credibility. It would not be the function of a medical expert to judge credibility in other respects; but what then? If the expert had concluded that the applicant’s credibility should be treated as extremely questionable, how would that have advantaged the applicant? It was for the adjudicator to decide what parts of the applicant’s evidence he regarded as credibility, applying the usual standard. I can see no foundation for an argument that it was wrong for the adjudicator not to adjourn the case in order to have a psychiatric assessment of FS’s credibility.

The other reason why an adjournment was sought was in order to obtain further reports going to the substance of the case which the applicant wanted to advance. Here there were three main categories. The first was an application that there should be a general medical report on various matters, including the effect of his head injuries in the 2000 assault and the degree of his eye disability. The Immigration Judge accepted that he had an obvious facial disfigurement. For the purposes of determining whether there was an Article 3 breach I do not see that it was necessary for him to have further medical evidence on that score. Similarly, in relation to the extent of his head injuries, what the adjudicator was concerned to know was how the applicant functioned and in that regard he essentially accepted the applicant’s evidence. So I cannot see that he erred in law in not granting an adjournment on that ground.

Next it was suggested that there should have been an adjournment in order to investigate further to what extent the applicant was a suicide risk and the extent of the medical facilities available for him in Iraq. This was a matter which was addressed by Dr Barrett in his report. Dr Barrett is not an expert in dealing with the particular problems of an individual’s ability to give evidence if they suffer from some degree of mental retardation, but his psychiatric qualifications certainly enable him to assess the extent to which somebody is suffering from a mental disturbance or abnormality. He took a history and in his report he recorded:

“I understood that Mr S had been treated for a psychiatric illness in Kurdistan. I gathered that he had attempted suicide on two occasions, once in Kurdistan and once in the United Kingdom. It seemed that he had been treated with electroconvulsive therapy on two occasions in Kurdistan. I gathered that he had yet to see a Community Mental Health Team in the United Kingdom.”

So whatever the extent of medical services may be in FS’s country of origin he had certainly been able to have ECT treatment following an apparent suicide attempt. Dr Barrett gave the following clinical assessment:

“It is my opinion that Mr S has mild to moderate mental retardation. I think that this has always been so. His history of delayed development and clearly limited intellectual performance admits no other plausible explanation. I do not think he is feigning anything, because there was no attempt to display his problems but rather an attempt to conceal his limitations.

“I think that after he acquired the head injury Mr S’s mental retardation was complicated by some disturbance of mood and impulse control. Whether electroconvulsive therapy was appropriate treatment I cannot say, as I have no way of knowing his symptomatology at the time. These problems are not currently evident.”

He also elsewhere said this:

“Mr S’s demeanour was not quite normal. He seemed slightly less concerned about his circumstances than I would have expected and had at times an oddly childlike manner.

“Mr S spoke at a normal rate of volume; the quantity of his talk was somewhat less than could have been expected. I could find no evidence of thought disorder in Mr S’s case. In addition perceptual fields and belief system seemed intact. There seemed to be no disturbance in Mr S’s mood, the prevailing affect being one of only moderate interest in the proceedings.”

So the Immigration Judge had that specialist assessment. There was no indication of any suicide risk ascertainable by the doctor who had examined him with knowledge of his history. It does not seem to me that in those circumstances the Immigration Judge can be said to have fallen in error in not directing a further adjournment in order that there be a more detailed psychiatric assessment of a possible suicide risk.

Thirdly, it is argued that there should be an adjournment in order to have some sociological expert evidence about the societal attitudes to disability in Iraq. The Immigration Judge had first to find the facts of the case about what sort of ill-treatment the applicant had suffered by reason on any physical disability. On the factual history there had been two physical attacks, but they were unrelated to any physical disability. So far as that was concerned what he had suffered, he said, was gibes and taunts in the street. The judge accepted his evidence in that regard but found that this fell far short of treatment which would engage Article 3. He was fully entitled so to do. The standard under Article 3 is a high one and not to be readily diminished. I cannot see that there was any error in his part in not allowing an adjournment in order to obtain sociological evidence to enable him to assess whether the applicant’s treatment amounted to a breach of Article 3.

Lastly, it is argued that failure to grant an adjournment resulted in the one finding adverse to the applicant’s credibility which Miss Bayati has said was critical to the determination. The Immigration Judge recorded in his determination:

“The Appellant’s case is that because of his physical disability no one in Iraq likes him and indeed his family hate him. He says he has never had what we would generally call a friend. He says he is isolated and alone and people take advantage of him whenever he goes out of the house.”

The judge continued:

“I found these remarks by the Appellant to be completely inconsistent with what he says happened to him. After he was allegedly attacked by these so-called terrorists in January 2005 the Appellant says that an agent was then engaged in order to pay for the Appellant to be escorted out of Iraq. The fee allegedly paid was $5,000 US. That is a considerable amount of money in anyone’s currency and I find it would be a particularly significant amount for the Appellant and his family, simply because he told me that his father was a retired man. Even if the brothers are now older and in employment it is apparent that for many years they must have been at school and the mother and father would consequently have to pay large amounts of money for their upkeep. I therefore conclude that the $5,000 would be an enormous amount of money. The Appellant says that the brother borrowed it from a neighbour. I note that the Appellant had lived with his family all his life.”

It is said that expert evidence would have been material to that finding of fact. I fail to see how it could have been. The point which the Immigration Judge made was an obvious one arising from the applicant’s own account. If his family hated him; why should they pay that sum of money to move him to England? Miss Bayati this morning argued that it was not his case that the family hated him, rather that they were indeed supportive of him but were not able to cope any longer. My attention was drawn to Dr Barrett’s report where he suggested that this seemed to be the case.

Two points have to be noted about that. First, that is not the way in which the case was presented before the Immigration Judge and the applicant was legally represented on that occasion. Secondly, it would not have helped him to present the case in that way for if one looks at the matter not in terms of the family being hateful towards him but paying for his removal to England from a mixture of care and the belief that they had done as much as they could, that is a slim basis for a suggestion that if he returns to Iraq they will shun him.

Realistically this is an attempt to try and reopen the case to run arguments which have been fully and fairly considered. I can see no arguable ground on which this appeal could succeed. I agree with the reasons given by Richards LJ when he refused the application on paper. I have gone into my reasons in considerably greater length than one would normally do on a renewed application because of the way in which the case has been presented on his behalf.