HS (Uganda), R (on the application of) v Secretary of State for the Home Department

This is an appeal from the finding of Hickinbottom J that the appellant's further representations to the Secretary of State did not constitute a fresh claim to asylum, rejection of which would have entitled the appellant to an in-country right of appeal under sections 84 and 92 Immigration and Asylum Act 2002.

By an application lodged on 13 June 2012, the appellant seeks leave to rely on yet further evidence.

The appellant is a native of Uganda born on 15 March 1982. He arrived in the United Kingdom on 13 November 2008 and claimed asylum. That claim was refused by the Secretary of State on 11 December. An appeal against the decision was dismissed by Immigration Judge Catherine Gordon in a determination promulgated on 2 February 2009.

The appellant's case was that he had been a member of the youth movement of the Forum for Democratic Change. He claimed that in May 2001 he had been arrested, beaten and ill treated. Following his release he kept a low profile and did not come to the attention of the Ugandan authorities. He resumed his membership of FDC in 2005 and become active with the FDC during the election campaign in January 2006. This time he was, he said, arrested and taken to Makindye Prison and placed in a cell with 18 other inmates. The following day he was placed in solitary confinement where he remained for a period of some ten months.

In December 2006 he was transferred to a building which the appellant described as a "safe house". There he was interrogated, beaten and subjected to electric shocks.

The appellant said that on 10 November 2008 he had been assisted by persons unknown to escape. He was taken to a hotel and thence to Entebbe where he was handed over to an agent. He arrived in the UK via Kenya and claimed asylum.

The immigration judge rejected the appellant's account of his membership of the FDC, his detention and torture as untrue. Her reasons concern principally the appellant's unsatisfactory account in his statement of evidence form ("SEF") dated 26 November 2008 as to his knowledge and membership of the FDC, but also the appellant's account in evidence of his admission to the UK and the production of documentary evidence.

The applicant told the UKBA interviewing officer, Victoria Roberts, that he had joined the FDC on 19 January 2001. As a matter of fact the FDC was not formed until August 2004. The appellant purported to correct his error in his witness statement to his solicitor dated 19 January 2009. He said that he had joined the Reform Agenda Party in 2001. However, that correction could not avail him because in his SEF the appellant had named all the parties who he said had amalgamated to form the FDC and the Reform Agenda Party was not one of them.

Secondly, the appellant said in his SEF interview that he knew of no other name by which the FDC had been known. However, in his witness statement, he claimed the FDC had simply changed its name. The appellant said in his SEF that the leader of the party, Dr Kiza Besigye, fled Uganda in March 2001. The significance of his answer lay in the appellant's claim to have been arrested in May 2001, three months after the disappearance of Dr Besigye. In fact Kiza Besigye fled in August 2001, several months after the appellant claimed to have gone into hiding. According to the appellant's SEF, Kiza Besigye had returned to Uganda by the time that he, the appellant, came out of hiding in June 2004. In fact Dr Besigye did not return to Uganda until October 2005. The immigration judge did not accept that this was a mere mistake. A supporter of the FDC who had himself been in hiding could not reasonably have made an error of this magnitude.

The appellant was internally inconsistent during his SEF interview. On one occasion he said he was tortured at least twice a day when brought food. On another he said he was not tortured on a daily basis and there was no regular pattern. As to his detention in the safe house, the appellant claimed in his SEF not to know what his cell floor was made of because he was kept constantly in darkness. On the other hand, he claimed to have slept on the floor for a period of almost two years.

At the hearing the appellant produced a document which he said was his original FDC membership card. It purported to have been issued on 19 January 2005 to a 19 year old male. On the date of issue, the appellant would have been aged 23 years. The immigration judge rejected the appellant's account in evidence that he had obtained fortuitously a copy of a Ugandan newspaper, the Weekly Message, from a friend, Muzanil Bandala, with whom he had worked at a garage in Uganda. The appellant gave evidence that following his arrival in the United Kingdom he had met a lady at a church in Stockton. She had relatives, he said, in Kampala. The appellant said that he gave her directions to the garage where he had worked. As a result, Muzanil Bandala sent him the newspaper dated 16 to 22 December 2008.

An article in the newspaper reported that the appellant's family had not known for a period of some one-and-a-half years whether the appellant, "a former youth mobilizer for the Forum for Democratic Change", abducted on 19 January 2006 was dead or alive. On the other hand, the appellant said that he had made no attempt to contact his family either before or after leaving Uganda in November 2008, even to let them know that he was alive and safe.

When pressed in evidence the appellant then claimed, unpersuasively, that he had asked someone at the garage to try to "find" his family. He said his purpose in making contact with Muzanil Bandala had been to obtain a copy of his membership card. He had known nothing about the newspaper article until it was posted to him. The immigration judge did not accept that a man in the position in which the appellant claimed to have been would not have made some effort to get a message to his family before the appeal.

The appellant relied upon a letter written by Dr Ana Ramos, his general practitioner, dated 15 January 2009, who said that upon meeting him for the second time it was concluded that the appellant was "probably" suffering from PTSD. The immigration judge did not consider the discrepancy of account of the magnitude identified could reasonably be explained by the diagnosis of PTSD. The immigration judge found, having read the evidence, that she could not find one way or the other whether the appellant was suffering from that condition.

The appellant could provide no explanation for the circumstances of his rescue from the safe house by persons unknown to him. He thought he may have been assisted by the "Party". The immigration judge concluded that if this was so, if the FDC regarded the appellant as sufficiently important a member to take the risk of freeing him from a confinement of almost two years (in fact three years), there was no obvious reason why the party should not also have provided the appellant with support for his asylum claim. There was no confirmation in evidence of the appellant's support for and activities with the FDC except for production of the membership card to which I have already referred.

The immigration judge did not believe the appellant's claim to have passed through customs with an agent who was in possession of a passport which contained no photograph of the appellant or even his name. An agent, she found, would not have taken such a risk of discovery. She drew inferences adverse to the appellant under section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

Thus Immigration Judge Gordon concluded as follows at paragraphs 23-25 of her determination:

On 24 February 2009 an application to reconsideration under section 103A Nationality, Immigration and Asylum Act 2002 was refused by a Senior Immigration Judge.

A further application to the High Court was refused on 13 May 2009.

On 15 June 2009 the appellant issued a claim for judicial review seeking the cancellation of removal directions set for 16 June 2009. In fact, the Secretary of State cancelled those rules and directions, but on 6 July His Honour Judge Vosper QC refused permission to proceed and certified that the claim was totally without merit.

On 20 July 2009 the appellant submitted further representations to the Secretary of State relying upon a medical report dated 12 July 2009 prepared by a Dr Christopher Bird. Dr Bird is a senior house officer Grade 2 with a particular interest in paediatric medicine and the assessment of injuries to children. He saw and examined the appellant at Campsfield House Detention Centre on 12 July 2009. I shall need to return to Dr Bird's report shortly.

Submitted with those representations was the appellant's further statement, dated 17 July 2009. In it the appellant said that he had in June 2009, since the hearing before Immigration Judge Gordon, managed to make contact with his mother in Uganda. She told him that the family had known all along where he was because they had sold the appellant's house to provide funds to pay those who had driven him from the safe house and the agent who had escorted him to the UK. I observe that, if true, this account further undermines the credibility of the appellant's evidence that he was unaware of the identity of his benefactors after he had been rescued from the safe house.

In paragraphs 7 and 8 of Dr Bird's report is an account apparently given by the appellant of his relevant history as follows:

The only accounts given by the appellant until this meeting with Dr Bird were those contained in the SEF interview and in his witness statements, dated 19 January and 17 July 2009. There is no account of torture in either of the two statements. In the course of his SEF interview the appellant said this:

I note that in large measure these replies were prompted by open questions concerning the appellant's treatment in custody. He had every opportunity to give a full account of the trauma to which he had been subjected.

It is also noticeable that there was no complaint by the appellant during his SEF interview or to the immigration judge that he had been beaten with wire, that he had been tortured with a sharp implement grappling his chest, that chilli had been placed in his eyes and nose, or that an injury had been inflicted to the hip causing problems with walking. All were complaints which were listed by Dr Bird in his report. As to continuing medical problems, Dr Bird mentioned for the first time "painful eyes after chilli burns", a painful right hip caused by force of external rotation of the right hip joint and chronic cough.

As to the interpretation of scarring, Dr Bird expressed the following views, which I summarise:

As to other complaints, Dr Bird observed conjunctival irritation, which he said was consistent with the use of chilli. He advised an assessment by an audiologist; hip pain and a reduced range of movement of the fingers required assessment by an orthopaedic surgeon. The chronic cough, which might be the consequence of the appellant's prolonged confinement, should be examined in order to exclude the risk of tuberculosis. As a matter of fact, tuberculosis has since been excluded. No further medical evidence was presented to the Secretary of State.

Dr Bird concluded, at paragraph 25 of his report, with the following summary:

It seems to me that there are considerable problems of lack of consistency between the account given by the appellant during his SEF interview and Dr Bird's report. At no time had the appellant said that his buttocks were beaten in May 2001 with a machete or an implement anything like a machete. He did not say that he was blindfold when he was ill-treated on that occasion. He had made no complaint before the immigration judge that chilli had been rubbed in his eyes. He made no complaint to Dr Bird that his testicles had been damaged or that he was suffering continuing symptoms as a result. The appellant made no complaint to the immigration judge that his right leg had been hyper-rotated under torture or that a burn had been inflicted on his arm. He had said nothing in the SEF interview about scars caused to his chest by hooks or anything similar. There was, it seems to me, no confirmation as to the existence of damage to hearing or the presence of tinnitus or causation of those conditions.

On 3 August 2009 the appellant made a further witness statement, also submitted to the Secretary of State for consideration. At paragraph 8 the appellant claimed, for the first time in any witness statement or interview, that he had been beaten with wires all over his body. He said that after having electric shocks passed into his body via his hands, his leg had been grasped and forcibly twisted. Then he said chilli had been placed in his eyes. He was taken back to the torture room where electric shocks were delivered to his hands, legs and the right side of his head. He still did not complain, however, of injuries caused to his chest by some form of grappling instrument.

In a letter dated 4 August 2009 the Secretary of State responded to the appellant's further representations, but her letter appears not to have been received by the appellant before removal directions had been re-set for 6 August. On that day Dobbs J, who thought that no response had been given to Dr Bird's report, ordered the stay of the removal directions.

On 19 August, Wyn Williams J ordered that the application to revoke the order of Dobbs J should be heard together with the appellant's renewal application.

On 12 October 2009 HHJ Bidder QC, having heard counsel for the appellant and counsel for the Secretary of State, granted permission to apply for judicial review. Thus the matter came before Hickinbottom J on 10 June 2010 for a decision on the merits of that claim. The issue was whether the Secretary of State had been right to refuse to treat those representations as providing the appellant with a fresh claim entitling the appellant to in country right of appeal.

In her letter of 4 August 2009 the Secretary of State drew attention to the findings of Immigration Judge Gordon as to the lack of credibility in the appellant's claim and the confirmation of that view by HHJ Vosper QC. At paragraph 6 it was said:

At paragraphs 7-10 the claim that the appellant's medical condition would give rise to a breach of Article 2 or Article 3 if he was returned to Uganda was rejected. At paragraphs 11-14 the letter rejected the application for exceptional leave to remain. At paragraphs 15 and 16 the Secretary of State rejected the representation that the further material submitted constituted a fresh claim within a meaning of paragraph 353 of Immigration Rules (HC 395 as amended by HC1112) as follows:

At the time when Hickinbottom J was considering the appellant's claim for review there were conflicting decisions in the Court of Appeal as to the correct approach of the High Court to a claim that the Secretary of State had wrongly certified that further representations did not constitute a fresh claim. Following WM (DRC) v SSHD[2006] EWCA Civ 1495, the court in TK v SSHD[2009] EWCA Civ 1550, confirmed that the test to be adopted was whether applying anxious scrutiny the Secretary of State had made a decision which was Wednesbury unreasonable. However, in KH (Afghanistan) v SSHD[2009] EWCA Civ 1354, the court, considering that it was following ZT (Kosovo) v SSHD[2009] UKHL 6, [2009] 1 WLR 348, reached the conclusion that the High Court must form its own view whether the new material, considered together with old, gave rise to a realistic prospect of success under rule 353 of the Immigration Rules.

In YH v SSHD[2010] EWCA Civ 119 the court treated the judicial review test under IR 353 (that is, realistic prospect of success) and section 94 Nationality, Immigration and Asylum Act 2002 (“clearly unfounded”) as essentially the same. The court was "entitled to exercise its own judgment". The different strands of authority emerging from the Court of Appeal were considered by the Vice President, Moses LJ and Sullivan LJ in MN (Tanzania) v SSHD[2011] EWCA Civ 193. Maurice Kay LJ, with whom the other members of the court agreed, pointed out that the decision of the majority in ZT (Kosovo) was that the correct approach to certification under IR 353 was the Wednesbury test. The authority of WM (DRC) was undiminished. That was the view expressed by the court in TK by Laws LJ, with whom my Lord, Lord Neuberger MR and Wilson LJ (as he then was) agreed.

Thus, the Vice President said at paragraph 15 of his judgment:

At paragraph 14 of his judgment Hickinbottom J directed himself that the court was bound to reach its own view on the question whether there was a realistic prospect of success before another immigration judge. The starting point, he found, was the findings and decision of the tribunal hearing the appeal. Medical evidence, the judge accepted, should, when it is relied upon as supporting credibility, be treated as an integral part of the evidence and not simply as an add-on. He applied guidance provided by this court in SA (Somalia) v SSHD[2006] EWCA Civ 1302 at paragraphs 28-30 as to the assessment of medical evidence prepared a considerable time after the alleged infliction of injuries. Having accepted that the medical evidence was new, Hickinbottom J identified the issue as whether, considering all the evidence "holistically", there was a realistic prospect before another immigration judge of reversing the credibility finding made by Immigration Judge Gordon.

It is submitted by Mr Toal on behalf of the appellant that the judge fell into error in three respects. First, it was contended in writing by Mr Vaughan that the learned judge had made an error of fact which amounted to an error of law in expressing his view that the appellant had not at the time of his appeal relied on the scars which were subsequently described by Dr Bird. Mr Toal at the end of his address to us wished to adopt that argument.

Secondly, it is submitted that the learned judge adopted an error of approach at paragraph 28 of his judgment in failing to examine in what respects, if any, the contents of Dr Bird's report may have supported, if not corroborated, the appellant's account of torture set out in his SEF interview.

Thirdly, it was submitted that neither the Secretary of State nor the judge dealt with the possible effects of the diagnosis of post-traumatic stress disorder upon the reliability of the appellant's account before the immigration judge.

As to the first ground, Mr Toal correctly pointed out that the appellant's SEF interview was placed before Immigration Judge Gordon. The appellant did make reference to torture and continuing symptoms. He specifically referred to the beating on the buttocks which caused injuries, a crushing injury of his testicles, damage to his hearing and to continuing stomach and sleeping problems. The judge at paragraph 26 of his judgment said:

In my judgment the criticism is not justified. Of course the judge was aware of the contents of the appellant's SEF interview and his claim to have been tortured. What the appellant manifestly did not do at the appeal hearing was to provide in a witness statement or anywhere else a description of injuries, particularly scarring, which it was his case had been caused by his ill treatment while in detention. There was no medical evidence as to any part of the appellant's physical condition and no photographs of relevant injuries before Immigration Judge Gordon.

It seems to me that it was a reasonable expectation that if the case was being advanced of beatings and electric shock treatment causing demonstrable injuries the link would have been made in the appellant's evidence, but it was not. It was to this failure which, it seems to me, the judge was referring when making the observation he did in paragraph 26, and to my mind it was perfectly justified.

Turning to the second ground and to paragraph 28 of the judgment, the judge said this:

The judge was finding, as it seems to me, that while Dr Bird had done all that he could reasonably do in the circumstances the very nature of the exercise could not bring credibility to the appellant's account when none otherwise existed. It was for this reason that the judge concluded that Dr Bird's evidence left untouched Immigration Judge Gordon's analysis of the appellant's claim to have been detained for his political beliefs. In my judgment, this was a conclusion which was open to the judge on the evidence. This was not, as the judge said, a case in which the medical evidence reopened to any significant extent the conclusions which the immigration judge had reached upon the appellant's underlying account. Even if the appellant had been injured deliberately in one or more of the particulars he alleged, he had not been injured as a result of detention based upon his membership of an opposition party in Uganda. For that reason, the appellant had failed to establish to the lower standard of proof a well-founded fear of persecution for his political beliefs.

I would add that a comparison between the appellant's evidence of beatings and torture and the contents of Dr Bird's report raised many further questions as to the credibility of the appellant's account. I refer in particular to the lack of consistency between the appellant's description of his ill- treatment and injuries and the conclusions drawn by Dr Bird in his report.

As to the third ground advanced, namely the impact of PTSD and the asserted failure of the Secretary of State and the learned judge to consider the impact of Dr Bird's evidence, it is necessary to return to the decision made by the immigration judge. At paragraph 20 of her determination she said:

And at paragraph 24 the immigration judge said:

It is clear from Hickinbottom J’s judgment that he did give anxious consideration to the question whether and to what extent Dr Bird's medical report was capable of undermining the immigration judge's conclusions, namely that if the appellant had suffered injuries and trauma in the past, that was not a result of his membership of a political party and detention in consequence of his membership of that political party.

She had considered in detail the impact of a finding of “probability” that he was suffering from post traumatic stress, but concluded that that could not alter her decision as to the credibility of his underlying account. The learned judge was, in my view, entitled to conclude that the immigration judge's finding was properly reasoned and that the evidence of Dr Bird did not undermine it.

Finally, Mr Toal argues that the Secretary of State's own reasons -- reasons which it was Hickinbottom J's responsibility to consider -- did not contain any analysis of the effect that PTSD or scarring or physical symptoms may have had upon the decision whether there was a realistic prospect of reversing the decision as to the appellant's credibility. In my judgment it was unnecessary for the Secretary of State to enter into a detailed analysis provided that the right question was asked and the right evidence was considered. It is clear from the extract to which I have already referred that the Secretary of State had in mind both the underlying account upon which judgment had been made by the immigration judge, the medical evidence before the immigration judge and the medical evidence of Dr Bird.

Mr Toal was correct to assert that the judge, for reasons which are in retrospect entirely understandable, did not explicitly examine the question whether the Secretary of State reasonably concluded that there was no realistic prospect of success before another immigration judge. However, he posed the question whether there was in fact a realistic prospect of success and concluded that there was not. At paragraph 6 of the refusal letter the Secretary of State commented that Dr Bird's evidence did not constitute "conclusive" evidence that the appellant's account was credible. I accept that this was not the correct approach. The question was whether all the evidence considered together gave rise to a realistic prospect of success.

The Secretary of State proceeded to conclude not that the appellant had failed to reach the appropriate standard of proof, but to conclude that:

Since the judge's own view coincided with that expressed by the Secretary of State and for the same reason, it is my judgment that had the judge asked himself the question posed by the court in MN (Tanzania) the result of the claim would have been inevitable. I draw attention in this respect to the final sentence of the judge's judgment:

On 13 January 2012 the appellant lodged an application inviting the court to receive in evidence the report of Dr Brock Chisholm, dated 9 December 2011. Dr Chisholm is a chartered clinical psychologist working with the Forced Migrant Trauma Service, a National Health Service body formed to provide treatment for refugees suffering post traumatic stress disorder. Dr Chisholm specialises in the diagnosis and treatment of PTSD. He assessed the appellant on an unspecified date and came to the strongly expressed conclusion that the appellant was suffering "severe" PTSD, together with “a major depressive disorder as well as dissociative disorder”.

Dr Chisholm attributes the appellant's failings as a historian to his mental condition. He says that "there are several gaps in [the appellant's] memory of events and he cannot remember details." This is, in the opinion of Dr Chisholm, consistent with the psychological effect of trauma. It is evidence of avoidance of symptoms of PTSD. The appellant suffers, in Dr Chisholm's view, hyper-arousal in the moderate to extreme range and re-experiencing of symptoms in the severe to extreme range. One of the symptoms of dissociative disorder is amnesia, normally for a traumatic event. It is, Dr Chisholm reports at paragraph 7.22, "highly unlikely that his symptoms were caused by any... cause other than the events he has reported."

Dr Chisholm has considered the alternative possibility, namely that the appellant's symptoms are not genuine. He excludes that possibility, having adopted the usual clinical techniques to test for malingering. I note that Dr Chisholm records the appellant is claiming that he was a victim of a mock execution, but he provides no further particulars. As I understand it, no such claim has been made by the appellant on any previous occasion.

At paragraphs 10.1 to 10.12 of his report, Dr Chisholm considered the evidence presented to Immigration Judge Gordon. He concluded that the errors of detail and dates together with the omission of traumatic events upon which the appellant now relies are consistent with the symptoms which he would expect from the diagnosis he has made. The appellant's inconsistent accounts are not, in other words, the construct of a man who is not telling the truth, but his traumatised account of real events.

Notwithstanding that there was before Immigration Judge Gordon evidence that the appellant was probably suffering PTSD, and the further evidence of Dr Bird that the appellant was suffering from PTSD, it seems to me that the authority and depth of Dr Chisholm's report arguably changes the landscape of the appellant's claim for asylum so as to qualify as a fresh claim. Unless Dr Chisholm's report is admitted in evidence in appeal, the effect of the report and the existence of a fresh claim are decisions for the Secretary of State and not for this court.

It is common ground, and I accept, that under rule 52.11(2) CPR this court has the discretion whether to admit evidence which was not before the lower court. The principles which govern the exercise of that discretion in asylum cases were considered by the court in E v SSHD[2004] EWCA Civ 49; [2004] QB 1044. First, the court must have regard to the proper scope of the appeal, which in this case is a consideration whether and to what effect the trial judge erred in law when on the evidence before him he concluded that the appellant had no realistic prospect of success on a further appeal to a tribunal.

Second, a degree of flexibility in the application of the rigour of the Ladd v Marshall test is required in asylum cases. That flexibility will be exercised fairly and in exceptional circumstances to secure the interest of justice. This court is not to be treated as "the court of last resort".

Mr Toal has submitted in argument that he would only intend to rely upon the report of Dr Chisholm in this appeal had this court come to the conclusion that the judge made an error of law.

We have been supplied with the statement of Josephine Renshaw, a partner in Turpin & Millar Solicitors, dated 13 January 2012. Ms Renshaw's firm was first instructed by the appellant on 9 June 2009, just over a month before the appellant's further representations were submitted to the Secretary of State. Ms Renshaw candidly discloses that the fee earner then acting for the appellant did not consider there was sufficient merit in the appellant's claim to warrant further steps on his behalf. Thus, it was that the appellant lodged his own application for judicial review. Ms Renshaw believes that Dr Bird provided his medical report for no fee when so invited by a charity.

With private funding Turpin & Millar submitted further representation on 20 July 2009. At this point we are informed that the appellant instructed a new firm of solicitors privately. Turpin & Millar heard nothing more until after Hickinbottom J had given his judgment. The appellant informed Ms Renshaw that church groups had been paying for his legal representatives in the interim. Ms Renshaw informs the court that she believes the funds available to the appellant were insufficient for the instruction of a psychologist such as Dr Chisholm. It is argued that lack of funds provide an explanation why the evidence could not with reasonable diligence have been obtained for the hearing before Hickinbottom J.

Ms Renshaw's firm instructed Dr Chisholm in October 2011. As I have said, he reported on 9 December 2011. Ms Renshaw left the UK during the holiday period and asked her practice partner to liaise with counsel. Mr Turpin himself had to leave the country after a family bereavement and no one in Ms Renshaw's firm considered service of the report until 6 January 2012.

No attempt has been made to explain why the appellant did not, at the time of the appeal before Immigration Judge Gordon, seek to place before the tribunal evidence of the kind now submitted. There is no satisfactory evidence as to why, long ago, particularly when further representations were made, consideration was not given to the same issue. The explanation of lack of funding is simply not justified on the evidence, nor is the source of Ms Renshaw's belief identified. This is an appeal on a matter of law from a decision of the judge. There was no evidence from a chartered clinical psychologist before him, just as there had been none before the immigration judge or the Secretary of State. Well after the eleventh hour had struck, the appellant for the first time asks the court to admit Dr Chisholm's expert evidence.

The appellant is indeed, in my view, treating this court as the court of last resort when there is an alternative and straightforward procedure by which the effect of the evidence can be tested. The appellant can make further representations to the Secretary of State which, if the Secretary of State so concludes, would bring an in country right of appeal against an unsuccessful application.

I would therefore refuse the application relying on the report of Dr Chisholm and I would dismiss the appeal.

I agree.

I also agree.