ZY (China) v Secretary of State For the Home Department

This is a renewed application for permission to appeal, which is brought by ZY who is an asylum seeker. Mr Y, as I will call him (I hope accurately) entered the UK on 2 April 2011 using false documents and he sought legal advice on 4 April 2011. He made an application for asylum on 1 July 2011. That application was refused by the Secretary of State's reasons for refusal letter dated 2 September 2011.

The applicant appealed to the First-tier Tribunal where his appeal was heard on 20 October 2011 by First-tier Tribunal Judge Lewis, who rejected his appeal. An application was made for permission to appeal to the Upper Tribunal and that application was granted on the basis, as I shall deal with in a little bit more detail in a moment, that it was arguable that the First-tier Tribunal should not have proceeded in the absence of a psychiatric report for the obtaining of which an adjournment had been sought. Accordingly there was an appeal heard by Deputy Upper Tribunal Judge Frances on 20 June 2012 in the course of which the Upper Tribunal Judge considered the fairness of the proceedings below, took into account the psychiatric evidence which was placed before her and dismissed the appeal.

An application to appeal to this court was refused by the Upper Tribunal and was then made on the papers to Sir Richard Buxton. Sir Richard Buxton refused permission to appeal and now the application is renewed before me. It is of course an application for permission to bring a second appeal, which therefore engages the more stringent test pursuant to which there must be demonstrated some important point of principle or practice which is involved in the case or some other compelling reason why an appeal should be brought.

At a very late stage before this hearing Mr Michael Harris of counsel was instructed to appear on behalf of the applicant, and I am extremely grateful to him for having produced some carefully crafted submissions both in writing and on paper and in drawing to my attention the decision of this court in SH (Afghanistan) v The Secretary of State [2011] EWCA Civ 1284, a decision to which the Upper Tribunal Judge referred in her ruling. It goes without saying that, where there is a suggestion made by an asylum seeker that he has suffered ill treatment in the past and is likely to suffer ill treatment in the future if returned to the country of origin, the court is exercising a most anxious jurisdiction. In such circumstances I repeat that I am extremely grateful to Mr Harris for his measured submissions, in the course of which he has brought to bear a keen focus on the only points that can realistically be made.

The gravamen of the appeal to the Upper Tribunal, as the Upper Tribunal judge sets out in paragraph 5 of her determination, was that the First-tier Tribunal had been wrong to proceed in the absence of the psychiatric evidence because it might bear on the question whether the applicant had been able to give credible evidence having regard to his state of mind. The First-tier Tribunal judge had refused the adjournment because, without going into detail, similar applications had already been made and refused. The position did not appear to have changed since the second of those refusals and, in any event, the applicant had had ample time in which to obtain psychiatric evidence with a view to placing it before the court.

The First-tier Tribunal judge rejected the applicant's account of what he alleged had occurred in China and indeed rejected his account in fairly trenchant terms. Furthermore at paragraph 17(vii) the First-tier Tribunal judge noted that there was no basis for concluding that the appellant's cognitive function was impaired in such a way that his ability to give a narrative account was affected.

As I have indicated, that matter was revisited by the Upper Tribunal upon the basis of a submission by the appellant's legal representative, Mr Lingajothy of Linga & Co, who as I understand it is experienced in these matters, that the issue to which the Upper Tribunal should direct its attention was whether the appellant was unable to give credible evidence because of his state of mind. The Deputy Upper Tribunal Judge looked at the evidence, which took the form of a report from a Dr Gupta dated 18 October 2011 and she summarised the matter in this way at paragraph 21:

Those passages demonstrate that the Upper Tribunal judge directed her mind squarely to the sole issue which had been submitted on the applicant's behalf to be relevant: that is, the question whether or not he was suffering from some impairment of cognitive function or memory as to render his ability to give evidence or accurate evidence, credible evidence in some way impaired.

On the application today, Mr Harris has submitted that the diagnosis in respect of the reaction to severe stress, the stress being unspecified, is a diagnosis which is capable of supporting the appellant's credibility and is therefore relevant to the balancing exercise performed by the First-tier Tribunal judge's over the reliability of the appellant's account. He makes that submission because he says the fact that the applicant has a reaction to some unspecified stress is at any rate consistent with the account which the applicant has given of his ill-treatment in China. Of course, as it stands, that submission is right in the sense that of course it is consistent with ill treatment, but it is also of course consistent with the stress, to which there has been a reaction, having originated from a myriad of other causes.

To my mind it speaks volumes that the judge in the Upper Tribunal, whose experience is in this field, and likewise the advocate for the appellant whose experience is in this field, did not think it appropriate to argue the case in this manner, did not think that the relevance of the report of Dr Gupta sounded in the manner which Mr Harris has suggested, but rather focussed upon the extent to which, if at all, that report bore on the ability of the applicant to give cogent evidence. It has to be remembered that the Immigration and Appeal Tribunal, sitting in the form of the First-tier Tribunal and then that part of the Upper Tribunal known as the Immigration and Asylum Chamber, is a specialist tribunal which is charged by Parliament with the fact-finding function. It is not the task of this court to substitute its own view of the facts for that formed by these specialist tribunals. Furthermore, in my judgment, this court must be astute to ensure that there is not an endless iteration of appeals and applications for permission to appeal upon the basis of the case being put in a different way once the first way of arguing the case has proved unsuccessful.

Mr Harris has suggested that the Upper Tribunal judge erred in following the guidance given in SH (Afghanistan). He submits that there was a two-stage test to be followed: first, where an appellant seeks to be allowed to establish by contrary evidence that the case against him is wrong, the question will always be at whatever stage the proceedings are reached what does fairness demand; and, second, tribunals like courts must set aside a determination reached by the adoption of an unfair procedure unless they are satisfied that it would be pointless to do so because the result would inevitably be the same.

Fairness is of course a concept which applies from the standpoint of both parties to litigation, and fairness in the procedure also demands that legally represented parties must bring forward the entirety of their case on the occasion upon which it is incumbent to do so, which in this context is either their appeal to the First-tier Tribunal or the subsequent appeal to the Upper Tribunal. I find it quite impossible to characterise as unfair the procedure which was adopted by the judge in the First-tier Tribunal, having regard to the history of the matter, the failed applications for an adjournment, the length of time which had elapsed between the making of the asylum claim and the hearing, which was of the order of in excess of six months, and the circumstance that, in any event, the judge plainly thought that the account given by the applicant was simply riddled with contradictions.

But the matter goes further than that because the whole issue was revisited in the Upper Tribunal. The Upper Tribunal judge looked at the report of Dr Gupta and formed the view that it had no relevance to the manner in which the argument had been presented to her: that is to say, whether it contained evidence that the appellant was suffering from an impairment of cognitive function or memory.

As I reminded Mr Harris, and indeed he needed no reminding, this is an application for permission to bring a second appeal on which it is incumbent to show that there is here some point of principle or, as I think he would rest his case, some compelling reason for this court to hear the appeal. The compelling reason which is here put forward is to my mind a very slender basis indeed for suggesting that this appeal should be permitted. It is slender because the psychiatric evidence is to no greater effect than that the applicant is suffering a reaction to severe stress of a wholly unspecified nature. Whilst Mr Harris is obviously right that that is consistent with the account which he has given, it does not in my judgment materially assist in determining whether or not the account is credible. In any event, for the reasons I have already given, in my judgment the first stage of the two-stage test is not satisfied in that it is simply impossible to reach the view in my judgment that there has here been a failure to afford to the applicant a fair hearing, having regard to the circumstance that his psychiatric evidence has in fact been considered by the Upper Tribunal on the only basis upon which it was suggested to be relevant.

As I mentioned earlier, putting it in a slightly different way, there has to be finality in these procedures and in my judgment it would not be consistent with a coherent set of procedures and principles if the appellant were now to be given a yet further opportunity to suggest that his hitherto rejected account is to be believed simply because it has been demonstrated that he suffered a reaction to some unspecified stress in the past. That stress, as I have already indicated, could have been caused by any number of events in his life. In my judgment the threshold for seeking to suggest that there is here a compelling reason why a yet further appeal should be heard is simply not surmounted.

Mr Harris has presented the case very attractively and has said everything that could possibly have been said, but, having given the matter the anxious consideration which it deserves, I regret that I am quite clear in my view that this is not an appropriate case in which to grant permission to bring a second appeal to this court.