IY (Turkey) v Secretary of State for the Home Department

This is an appeal, brought with the permission of Sir Richard Buxton, against a determination of Upper Tribunal Judge Waumsley (“the UTJ”) promulgated on 11^th January 2012. By that determination, the UTJ dismissed an appeal from a determination of Immigration Judge (now designated as First-tier Tribunal Judge) Grant (“the FTTJ”) promulgated on 30^th March 2011 whereby the FTTJ had rejected the appellant’s appeal from a decision of the respondent Secretary of State dated 25^th January 2011 refusing to grant asylum and proposing the appellant’s removal to Turkey. In dismissing the appeal to the Upper Tribunal, the UTJ found that the decision of the FTTJ involved the making of no error on a point of law; and he ordered that the decision should therefore stand.

The essential issue raised, albeit of course arising in the particular circumstances of the present case, is not an unfamiliar one. It involves consideration of the extent to which the FTTJ was entitled to reject the written report of an expert psychiatrist, which report had not been tested in cross-examination, in reaching his decision.

The appellant was represented before us by Mr Danny Bazini of counsel. The respondent was represented before us by Ms Susan Chan of counsel. Neither counsel appeared at any stage below.

The appellant is a citizen of Turkey born on 15^th December 1986. It is not in dispute that he is an Alevi Kurd. He arrived at Stansted airport on 13^th September 2010 and applied for asylum on arrival.

At his screening interview, where he had an interpreter present, he answered a number of questions. In his answers, he said that he had flown to Cyprus from Istanbul and then after a week he flew from Cyprus to Ankara and then from Ankara to Stansted. He indicated that he was in good health and fit to be interviewed although lacking in sleep. He stated that his reason for coming to the UK was that he had been beaten by the police on 21^st March 2008 during Newroz celebrations; and because he was an Alevi Kurd he was “being harassed by the police and they were looking for me”.

He was further interviewed, with an interpreter and solicitor present, on 28^th September 2010. The interview lasted a number of hours. His answers are recorded on the Statement of Evidence form. At the outset, when he was asked if he was fit, well and content to be interviewed that day he answered “I have little stress, I have dry mouth”. Various breaks were offered, and accepted, during the process. After each break, he confirmed he was fit and well to continue. The questions and answers were detailed.

In his interview, the appellant said that he had been a member of the DTP party since the age of 18, helping to distribute papers and to collect donations and attending demonstrations. He said that his problems with the police began on 21^st March 2008, when he was arrested on the occasion of a Newroz celebration. He said he was detained for three days and questioned at length. He was stripped and subjected to high-pressure water hosing and was subjected to other torture, before being released.

He said that he was arrested on two subsequent occasions. On 15^th February 2009 he was arrested after a demonstration in Istanbul. He was again subjected to lengthy questioning and to high-pressure water hosing. In addition, his right wrist was broken. When he later went to hospital, he told hospital staff he had broken it playing football. The third occasion was on 15^th August 2010 when he went to a demonstration in Istanbul. There was trouble and he ran away. He returned home but the police came that night and took him and one of his sisters away. He was again questioned. He was beaten and punched. He was also subjected to high-pressure water hosing again, and also to electric shock treatment. When eventually released, he was told by the police to sign on weekly. His sister had already been released. The decision was then made, after discussion with his father, that he should leave Turkey. He flew from Istanbul to Cyprus, where he stayed a few days before eventually going on to Stansted. He had since been told by an aunt that his father had been taken away.

The detailed decision letter of the Secretary of State of 25^th January 2011 rejected the appellant’s various claims. It was also noted that, despite his being granted a delay of some four months to obtain a psychological report from the Helen Bamber Foundation, none had been forthcoming. It was considered that removal from the UK was appropriate.

In due course the appellant appealed. The hearing in the First-tier Tribunal was on 10^th March 2011. The appellant was represented by an “in-house” advocate employed by his solicitors. The Secretary of State was represented by a Presenting Officer.

Very shortly before the hearing a psychiatric report, prepared by Professor Cornelius Katona for the Helen Bamber Foundation, was served on the Secretary of State by the appellant’s solicitors. The report was dated 8^th March 2011 but was based on a three hour examination of the appellant by Professor Katona on 4^th February 2011. No explanation for the delay in obtaining such a report seems to have been given. The report itself is (excluding appendices) 11 pages in length.

The Helen Bamber Foundation is, of course, a very reputable charity whose principal object is working with those who have experienced human rights violations. Professor Katona is himself a distinguished consultant psychiatrist approved under s.12 of the Mental Health Act 1983 (as amended) and among other things is Emeritus Professor of Psychology at the University of Kent. He has, as he stated, prepared over 250 expert medical reports on the mental condition of asylum seekers.

In a paragraph of the introduction to his report dated 8^th March 2011 he very properly said this:

He then set out at length the appellant’s account to him of his background, of his political activities, of his “traumatic experiences in Turkey”, of his departure from Turkey and of his experiences in the UK.

Professor Katona said that the appellant presented as “an extremely anxious young man” who frequently became distressed and needed a break. Professor Katona assessed him as currently having mild depressive symptoms. Using a standard psychological rating scale, the appellant scored 49 out of 75 indicating that he had severe trauma related symptoms. An assessment of his mental state confirmed the clinical impression that he fulfilled the DSM IV criteria for post traumatic stress disorder (“PTSD”). Basing his opinion, as he said, on his clinical observation and not merely on what the appellant had told him, Professor Katona said this:

He has experienced extreme trauma (repeated detention and torture).

He re-experiences his trauma in the form of intrusive thoughts and (until recently) vivid nightmares.

He tries to avoid thinking about his traumatic experiences.

He avoids reminders of his traumatic experiences.

He has difficulty remembering his traumatic experiences in exact chronological detail.

He feels detached from other people.

He is convinced he will soon die.

He is easily startled: if he hears a knock on the door ‘I feel they are coming to get me’.

[IY]’s dissociative symptoms, his social withdrawal and his despair suggest that he has suffered a traumatisation more profound than most post traumatic stress alone (Roth et al, 1997). The situation of detention and torture typifies such a description. Complex PTSD is a diagnostic category separate from PTSD rather than necessarily being either more or less severe than PTSD. Therapy focuses on the need to re-establish a sense of safety, of developing a sufficiently supportive environment for remembrance and mourning to take place for what was lost, with the ultimate goal of reconnecting with community and society.

[IY]’s complex PTSD has in my view been caused by the traumatic experiences he suffered in Turkey. I have considered the possibility that it might have been caused by other factors such as his immigration uncertainty and his separation from his native country, his immediate family and his girlfriend. In my opinion these factors may have exacerbated his depressive symptoms but are unlikely to have contributed significantly to his core PTSD symptoms.”

After then dealing with treatment and prognosis (it seems the appellant had by now started to receive specialist psychotherapy at the Helen Bamber Foundation), Professor Katona then said this in paragraph 10 of his report under the heading “Capacity to give evidence in Court”:

That report was admitted into evidence before the tribunal. There is no record that the Presenting Officer then present on behalf of the Secretary of State objected to its admission by reason of late service or sought an adjournment. Professor Katona was not required to attend for cross-examination (which in any event presumably would have been impracticable for a hearing fixed for that date), although it can readily be inferred from what eventuated that the Presenting Officer was to be taken as not accepting Professor Katona’s report. The appellant was himself present with an interpreter. He gave evidence and was cross-examined.

In his determination, the FTTJ recited and reviewed the evidence at some length. In proceeding to make his findings of fact the FTTJ stated at the outset that he took into account Professor Katona’s report. He made clear that he did not attach any particular weight to the Secretary of State’s decision letter.

The FTTJ found significant implausibilities in the appellant’s account of distributing party newspapers. He also found it very implausible that there would be receipts given for DTP donations and then kept at his home which the police found, as the appellant had claimed. The FTTJ considered it unlikely that the police would detain for as long as three days someone of little education and with no real information to offer. The FTTJ also thought it “not at all credible” that the appellant would not know of the date of the relevant local elections, given his claimed close involvement in the DTP. He considered that the objective evidence “totally undermined” the appellant’s case and that his ignorance of matters such as highly significant local elections showed that “he was never remotely associated with any political party in Turkey”. The FTTJ said this:

The FTTJ went on to say this at paragraph 24 of his determination:

The FTTJ thus dismissed the appeal on all grounds advanced.

Permission to appeal was refused by Senior Immigration Judge Lane (as he was then designated) on 21 April 2011 but on reconsideration was granted by Upper Tribunal Judge Kekic on 19 July 2011. Thus the matter came before the UTJ on 11 January 2012. The appellant continued to be represented by the same in-house advocate and the Secretary of State was represented by a (different) Presenting Officer.

However before this hearing the appellant’s advisers had sought leave to put in a further report from Professor Katona dated 3 October 2011. This was done by way of letter dated 20 November 2011 to the Upper Tribunal, indicating in the light of the FTTJ’s findings that “we therefore considered it appropriate to obtain Professor Katona’s view of the Immigration Judge’s findings relating to the medical report”.

In this further report, Professor Katona made clear at the outset that he had not reassessed the appellant for the purpose of the further report and that his comments were based on his original assessment in February 2011. Professor Katona then engaged in a detailed commentary on the FTTJ’s determination and reasoning. He apologised for not having previously dealt with the matters set out in paragraph 24 of the FTTJ’s determination. He then sought to explain that people with complex PTSD “are indeed often able to function in a superficially normal way for long periods”. He stated that it was difficult for someone such as the appellant to feign his condition convincingly over time, and considered it unlikely that he and his colleagues at the Helen Bamber Foundation had been “hoodwinked” (as the FTTJ had found). He also queried whether the FTTJ was in a position to be able to find that the appellant was “fit and well”. He made other detailed comments on the FTTJ’s reasoning and offered potential explanations to account for the various discrepancies in the appellant’s versions of events as noted by the FTTJ.

The application to admit this further evidence was summarily refused by UTJ Eshun on the papers, as notified to the appellant’s advisers on 8 December 2011. There is then an unfortunate dispute as to what happened at the hearing. According to the appellant’s advisers, the advocate for the appellant then re-applied at the outset of the hearing for leave to adduce this further evidence. The solicitor instructing him has since put in a short witness statement stating that it had been agreed in advance that such an oral application would be made; there was also exhibited the advocate’s short note of the hearing which suggests that he had “attempted to introduce Professor Katona’s response” but that this was refused. The UTJ however, in subsequently refusing an application for permission to appeal to the Court of Appeal, stated unequivocally, by reference to his own contemporaneous record of the proceedings, that no such renewed application was made at any stage of the hearing before him: had it been he would have dealt with it. Certain it is that no mention of such an application is made in the UTJ’s determination as promulgated, and it is difficult to conceive that so experienced and careful a judge as Upper Tribunal Judge Waumsley would have overlooked the application had he understood that it had been duly raised.

At all events, the actual determination of the UTJ reviewed the background and evidence in detail. There were two grounds of appeal being advanced before him: (1) that the FTTJ was wrong to reject the report of Professor Katona and (2) that the various credibility findings adverse to the appellant as made by the FTTJ were not reasonably open to him on the evidence.

The UTJ gave short shrift to the second ground, when he came on to deal with it, regarding it as little more than sustained disagreement with the FTTJ’s assessment of evidence; and he found that the FTTJ had given proper reasons for regarding material aspects of the appellant’s evidence as “highly implausible”.

As to the ground relating to the psychiatric evidence of Professor Katona the UTJ considered that ground first and considered whether the FTTJ had made a material error of law. He said this:

While permission to appeal to this court has been granted by Sir Richard Buxton, that permission was limited to the point as to whether it was open to the FTTJ to reject Professor Katona’s evidence as he did and as to whether, in doing so, the FTTJ had made “findings of his own motion on matters of medical expertise”. Permission to appeal in respect of the other factual findings – that is to say, the second ground before the UTJ – was refused.

Before us, Mr Bazini formulated his argument in a number of different ways. But his principal points can be summarised in this way:

The Secretary of State had not sought to put in any competing psychiatric evidence of her own nor had the Presenting Officer sought to cross-examine Professor Katona on his report.

While he accepted that the FTTJ was not bound to accept Professor Katona’s opinions, he submitted that the FTTJ should have been very cautious in departing from them and should have had justifiable, and expressed, reasons for doing so.

Here the FTTJ did not display the appropriate care and caution needed before rejecting the report; such reasons as he gave did not adequately support his rejection of the report; and the FTTJ was in no position to conclude that the appellant had “hoodwinked” Professor Katona and the Helen Bamber Foundation.

The FTTJ had misunderstood Professor Katona’s statements as to the appellant’s capacity to be examined at a tribunal hearing.

The UTJ had in turn replicated those errors.

The other reasons given for rejecting the appellant’s account were not such as to undermine the medical evidence.

Ms Chan, for the respondent, in essence submitted as follows:

It should not be held against the Secretary of State that Professor Katona was not cross-examined, given the late production of the report and practical realities relating to tribunal proceedings.

In any event, the FTTJ was not bound to accept Professor Katona’s evidence, and he gave cogent and rational reasons for departing from it after evidently having considered it with care.

The medical evidence had to be set in the context of the numerous implausible or inconsistent factors, as found, in the appellant’s version of events.

The first point – which I think remains open for argument on this appeal given the basis on which permission to appeal was given by Sir Richard Buxton – is whether the further report of Professor Katona should have been permitted to be adduced as fresh evidence.

I am of the clear view that permission was properly refused by UTJ Eshun and (if he was asked to deal with it at all, which seems most doubtful) by the UTJ.

The relevant rule is rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008:

It is plain that sub-paragraph (b) is not designed to be exhaustive of the matters to be considered before a decision to admit further evidence is made. Mr Bazini rightly accepted as much. He further accepted that, although not the legal test actually prescribed by the rules, in accordance with previous authorities in this asylum context it is generally appropriate for the tribunal to have regard to the three criteria identified in the case of Ladd v Marshall [1954] 1 WLR 1489 before deciding whether or not further evidence is to be permitted. But he objected that UTJ Eshun had not engaged with the reasons given for seeking to adduce this further evidence; and, further, that she (and the UTJ, judging by his remarks when subsequently refusing permission to appeal) must have adopted too limited or restrictive an approach in refusing to entertain this further evidence.

The statutory scheme is in essence for the Upper Tribunal to assess whether or not a decision of the First-tier Tribunal was wrong in law. The statutory scheme generally does not permit an entire rehearing on the facts by the Upper Tribunal on such an appeal, unless a point of law is identified such as to require a decision to be remade and which the Upper Tribunal itself then decides to remake. Moreover in point of practice the efficiency of the whole appeal system would be seriously undermined if parties conceive that they can readily adduce on appeal evidence not placed before the First-tier Tribunal. That, indeed, is the principal rationale in this context for normally applying, by analogy, the criteria laid down in Ladd v Marshall. Exceptionality of course is not the legal test here. But, in my view, exceptionality is properly descriptive of the circumstances in which fresh evidence may – at all events in the absence of consent from all parties – be permitted to be adduced before an Upper Tribunal: albeit of course what ultimately will be decisive is what justice requires in the circumstances relating to the particular application.

In my view, in the present case, the first limb of Ladd v Marshall was not satisfied – that is, that the new evidence could not have been obtained with reasonable diligence at the first trial – and I can see no proper basis for interfering with the exercise of discretion by UTJ Eshun, or (if he was asked to exercise it at all) by the UTJ, in refusing to permit the second report of Professor Katona to be adduced. As that report accepts, it is based on no fresh assessment of the appellant and on no fresh circumstances having arisen in the interim. Instead, it is in effect an acceptance that some matters were not previously covered in the first report (and so an acknowledgement that they might have been). In other respects it is, in effect, a running critique of the FTTJ’s reasoning, adding comments or observations to seek to explain the ostensible inconsistencies in the appellant’s account of events. But such a running commentary on the FTTJ’s reasoning is not the proper province of an expert at all: it is a matter for counsel to argue if criticism is to be made of a tribunal judge’s reasoning and evaluation of the evidence. Indeed, as Tomlinson LJ observed in argument, the very letter of application had proffered the further report as representing Professor Katona’s “view” on the FTTJ’s findings: as such, it was neither relevant nor admissible.

Mr Bazini said that the actual reasoning of the FTTJ could not have been anticipated. But it was plain that there were potential problems of plausibility on the appellant’s case to be addressed and it was common ground that it could not simply be assumed, even in the absence of cross-examination, that Professor Katona’s report would be accepted in its entirety. It may be that the Helen Bamber Foundation was rather nettled at so trenchant a finding that it had been “hoodwinked”. In my view, however, Ms Chan was justified in describing that further report as a second attempt to persuade a tribunal of the veracity of the appellant’s account.

In all the circumstances, therefore, the application to admit the further report of Professor Katona was properly refused.

That, then, leaves the substantive challenge to the UTJ’s determination.

One initial point should be made. In the present case the first report of Professor Katona was of course relied on as relating to the credibility and reliability of the appellant’s evidence that he had been tortured and mistreated in Turkey. In such circumstances, the report fell to be appraised as part of the totality of the evidence bearing on the appellant’s account of events. It is sometimes capable of being a material error of law for a tribunal to make adverse findings on credibility before going on to consider the relevant expert evidence: see, for example, Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367. It is important, therefore, to stress that such a criticism could not be made (nor is such a criticism made in the Grounds of Appeal) of the FTTJ (or UTJ) in this case. The evidence was considered as a whole (“holistically”) before the ultimate conclusion on credibility and plausibility was reached.

As to the lack of cross-examination of Professor Katona, Ms Chan drew attention to the practicalities. Very often expert reports served by appellants are not the subject of cross-examination by the Presenting Officer in tribunal proceedings (assuming a Presenting Officer is there at all). Further, the resources are generally not there to fund further reports in rebuttal. Moreover, in the present case and no doubt in many others, to require attendance of an appellant’s expert for cross-examination might give rise to an adjournment (if the tribunal were prepared to grant one). I acknowledge the practical difficulties. Even so, where the Secretary of State elects to go ahead with a hearing without seeking expert evidence of her own and without seeking to cross-examine, then the Secretary of State simply has to bear the risk that the tribunal may fully accept that report if it has – depending on the circumstances of the particular case – no other good reason not to do so.

Mr Bazini, for his part, rightly accepted that the FTTJ was not bound to accept Professor Katona’s report, even where it had not been challenged in cross-examination. But in such circumstances I do accept his submission that, to reject it, the FTTJ was required to proceed with caution and was required to have, and articulate, justifiable reasons for not accepting the evidence. The general position is summarised, in my view accurately, by Stanley Burnton LJ in the case of SS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 155 at paragraph 21 of his judgment:

SS was a case, incidentally, also involving the expert evidence, which had not been the subject of cross-examination, of a psychiatrist who had diagnosed complex post traumatic stress disorder; further, rather as in the present case, it had been opined that the applicant would be likely to become extremely dissociated and be unable to provide a coherent account in court. In that case, on the facts, it was held that the Senior Immigration Judge had been entitled not to accept the expert’s evidence, for cogent reasons.

Mr Bazini referred us to the judgment of Moses J in R (o/a Minani) v IAT [2004] EWHC 582 (Admin). In the course of paragraph 26 he said this:

Mr Bazini also drew attention to the observations of Sedley LJ in Y (Sri Lanka) v SSHD [2009] HRLR 22; [2009] EWCA Civ 362. There, in dealing with the issue of whether appellants had been calculatedly exaggerating the symptoms they had recounted to the expert psychiatrist, Sedley LJ in paragraph 12 of his judgment said:

Such cases operate to confirm what is elementary: that the question of whether an appellant’s account of the underlying events is, or is not, credible and plausible is ultimately a question of legal appraisal and a matter for the tribunal judge, not the expert doctors: the tribunal judge being required first to appraise the totality of the evidence before reaching a conclusion. Doctors have to assess symptoms, and in doing so will clinically assess, using their experience, the account provided to them by an appellant in interview in connection with those symptoms. If a conclusion is reached by the expert – as in the present case – that an appellant suffers PTSD, that is a highly material factor (and sometimes it may prove to be a decisive factor) to be taken into account in a tribunal’s overall assessment of the reliability of an appellant’s account of events where torture, abuse or mistreatment is being alleged. But the decision remains one for the tribunal: and consideration of the totality of the evidence may lead to the conclusion that the underlying account of an appellant is in fact to be rejected. If that is so, then the account given to the expert (and on which the expert may perfectly properly have relied) may stand falsified. Indeed Professor Katona had himself quite rightly said at the opening of his first report that nothing in his report was to be taken as a finding of fact in relation to the asylum claim.

In the present case, the FTTJ (as did the UTJ) clearly appreciated the need for care and the need for justifiable reasons to depart from Professor Katona’s reported opinion. As Ms Chan observed, however, the present case was one where the issue to which the expert evidence was directed related not so much to the future (for example was the appellant suffering from PTSD to the extent that he represented a suicide risk if liable to be removed) but related to the past – viz. were the medical findings as to complex PTSD such as to support the veracity of the appellant’s account of events of what had allegedly happened to him in Turkey?

I accept Ms Chan’s submission that the FTTJ did give rational and justifiable reasons for rejecting Professor Katona’s report as corroborating the veracity of the appellant’s account. I think that the UTJ was right to hold there had been no error of law on the part of the UTJ.

The first point, as identified by the FTTJ, was that the appellant had been able to follow a highly complex set of instructions in leaving Turkey and yet, a few months later – and after claiming at his screening interview that he was essentially fit and well – he was presenting to Professor Katona as someone not even able to cope with cross-examination. That was unexplained in the first report of Professor Katona.

The second point is that the appellant was able to give a detailed account of his version of events and of his departure both in the asylum interviews and on examination before Professor Katona (even if, as the professor records, in circumstances of distress before him). Given that, it was open to the FTTJ to assess that that factor had not been sufficiently taken into account. Moreover, and most strikingly, the appellant had proved himself indeed able at the tribunal hearing to answer questions in cross-examination: and the FTTJ recorded no evident distress on his part in doing so. Mr Bazini submitted that paragraph 10 of Professor Katona’s report had been misunderstood. I do not think so. The professor had expressly stated the conclusion that the appellant currently lacked capacity to give evidence in court – save only to confirm his identity and adopt his statement. But in the event the appellant did go on to give evidence and be cross-examined: it was not even suggested to the tribunal that he could not or should not. By his so giving evidence, as the UTJ crisply observed, “he had demonstrated in cogent form that the professor’s assessment was simply wrong”.

Moreover it must not be overlooked – in assessing the evidence holistically – that in a significant number of respects the FTTJ found the appellant’s account of events to be not plausible or not credible. The mental health of the appellant cannot readily, on the admissible evidence, be relied on as an explanation for such implausibilities and inconsistencies; and they were relevant in controverting the “factuality” of his account.

In such circumstances, I think that the UTJ was justified in concluding that the FTTJ had assessed the evidence in a way open to him. That another judge might possibly have come to a different conclusion on the evidence is not to the point. It follows that the UTJ’s further conclusion that no error of law had been involved in the previous decision was a proper one.

I would therefore dismiss this appeal.

I agree.

I also agree.