PA (Iran), R (On the Application Of) v Upper Tribunal (Immigration And Asylum Chamber)

The Appellant appeals against the order of William Davis J dated 3^rd November 2015 refusing permission to apply for judicial review in respect of the decision of an Upper Tribunal Judge (“UTJ”) dated 25^th August 2015, refusing the Appellant permission to appeal against the decision of First-Tier Tribunal Judge (“FTTJ”) Youngerwood dated 18^th May 2015 dismissing the Appellant’s asylum and human rights claim, permission to appeal from that decision having first been refused by FTTJ Saffer on 2^nd July 2015.

The Appellant is an Iranian national of Kurdish ethnicity who entered the UK on 4^th August 2008, aged 17 years old. He was accepted as an unaccompanied minor and looked after by social services. He claimed asylum on the basis of fear of persecution as a result of his smuggling activities. His claim was first refused by the Secretary of State for the Home Department (“SSHD”) on 20^th January 2009.

The Appellant’s first appeal against the refusal of his asylum claim was heard by Asylum and Immigration Tribunal Judge (“AITJ”) JFW Phillips on 12^th March 2009.

On 1^st March 2011, the Appellant lodged further submissions and evidence, including a country expert report from Dr Mohammad Kakhki. On 30^th March 2012, the Appellant’s further submissions were refused by the SSHD on the basis of the earlier adverse credibility findings by the AITJ. The Appellant then lodged further expert evidence in the form of psychological and psychiatric reports (see further below).

On 24^th February 2014, the SSHD refused the fresh asylum claim, but with a right of appeal. On 10^th March 2014, the Appellant lodged an appeal against the SSHD’s refusal of the asylum and human rights claims. On 20^th April 2015, the Appellant’s legal representatives wrote to the FTT requesting that the Appellant be treated as a vulnerable adult on account of his cognitive impairment and low IQ. On 22^nd April 2015, the SSHD issued further decision letters refusing the Appellant’s further claims.

On 5^th May 2015, FTTJ Youngerwood heard the Appellant’s appeal. On 8^th June 2015, FTTJ Youngerwood published his decision and reasons dismissing the appeal. On 22^nd June 2015, the Appellant lodged an application for permission to appeal to the FTT. On 2^nd July 2015 and 25^th August 2015, permission to appeal was refused by the FTT and UTJ respectively as aforesaid. The Appellant then commenced judicial review proceedings. On 3^rd November 2015, permission to bring judicial review proceedings was refused by William Davis J. The matter was then adjourned by order of Rafferty

The relevant procedural rules governing these proceedings are CPR 54.7A and 52.8, which come into force following the Supreme Court’s decision in R. (Cart) v Upper Tribunal[2011] 1 AC 663. The test for permission to bring judicial proceedings in the current circumstances under CPR 54.7A is a high one:

that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and

that either—

the claim raises an important point of principle or practice; or

there is some other compelling reason to hear it. …”

William Davis J gave the following reasons for refusing permission for judicial review:

Although the application was lodged out of time, the delay was only a matter of days and a full explanation has been given. I extend time.

The first ground of appeal relates to the FTT’s application of the Devaseelan guidelines. In particular, it is said that the FTTJ (whose view was supported by the Upper Tribunal in refusing permission) applied the wrong test because the new evidence in relation to credibility ought to have been considered under guideline 5. This is not sustainable. Guideline 4 was the relevant part of Devaseelan given that the judge was considering credibility. The judge properly applied the guidance in LD (Algeria) as he said he did in the course of his decision.

The second ground of appeal criticises the judge’s use of the material relating to the Claimant’s ability to instruct lawyers. The judge was entitled to take this into account as part of his overall assessment of the Claimant’s general capacity, this being relevant to the issue of credibility and the findings at an earlier appeal hearing. The Claimant’s submissions that the judge misdirected himself as to the law in reality are an attack on the judge’s findings of fact. There

The judge is said to have erred in law in failing to conclude that the medical evidence adduced before him provided a very good reason for departing from the earlier credibility findings. The judge reviewed all of the evidence as to the Claimant’s mental capacity at some length. He set out in detail his reasons for declining to accept the conclusions of the experts whose evidence was adduced by the Claimant. Those reasons were not perverse. He was entitled to reach the view that he did. He was not bound to accept the Claimant’s expert evidence.

The grounds relating to the Kurdish ethnicity of the Claimant and the Claimant’s Article 3 and Article 8 claims are not arguable for the reasons given by the FTT in refusing permission as confirmed by the Upper Tribunal. The Claimant argues that guidance is required in relation to the risk faced by a returning Kurd who is a failed asylum seeker. That is not the view taken by the Upper Tribunal i.e. the tribunal best placed to judge the need for general guidance in particular cases.”

The Appellant’s six grounds of appeal against the decision of the FTTJ (settled by previous Counsel) were as follows:

The FTTJ misdirected himself incorrectly to the Devaseelan Guidelines applicable to this category of case and failed to have regard to the overriding principle preserving independent assessment;

The FTT misdirected itself in law to the distinction between the mental abilities to satisfy the test for litigation capacity and the impact of mental impairments on the giving of evidence (without a litigation friend or intermediary); and/or adopted a procedurally unfair approach;

The FTT erred in its treatment of the medical evidence and/or failed to give legally sustainable reasons for rejecting the severity of PA’s cognitive malfunctioning;

The FTT erred in law by failing to determine PA’s refugee claim against the expert country evidence that Kurdish ethnicity and background was central to risk; and/or by failing to lawfully determine his claim;

The FTTJ erred in the Article 3 assessment based on the risk of suicide;

The FTTJ misdirected itself and/or failed to take into account material considerations in relation to PA’s claim under Article 8 inside the Immigration Rules under paragraph 276ADE and outside.

Ms Amanda Weston QC who appeared for the Appellant (and who did not appear below) abandoned Grounds (1) and (5) and narrowed some of the issues in relation to the Appellant’s remaining Grounds.

Ms Weston QC took Grounds (2) and (3) together. She made a number of criticisms of the FTTJ’s approach to the evidence principally directed at the FTTJ’s treatment of the medical evidence. Her essential argument can be summarised briefly as follows: the FTTJ fell into material error in that he misunderstood and/or mischaracterised the Appellant’s expert medical evidence and this led him to adopt an erroneous and unfair approach to the Appellant’s case which both (a) reduced the relevance of the Appellant’s psychological and psychiatric evidence and (b) undermined the Appellant’s credibility.

The FTTJ had extensive expert psychological and psychiatric evidence before him. This was in the form of three detailed reports from a clinical psychologist, Dr Craig McNulty (dated 12^th March 2013, 15^th July 2013 and 16^th April 2015) and a detailed report from a consultant psychiatrist, Dr Hamideh Heydari (dated 17^th October 2013). Both experts had examined the Appellant in person.

Dr McNulty, a specialist clinician in learning disabilities, examined the Appellant on three separate occasions over some two years for a total of some five hours. Dr McNulty described the Appellant as having a “mild intellectual disability" with verbal skills in advance of his overall IQ. Dr McNulty observed that “the practical implications of this are that [the Appellant] is likely to be prone to make more errors and omissions of fine detail in his recall of factual information”. He said that the Appellant was able to give evidence in support of his case if appropriate allowances for a vulnerable person with cognitive limitation were made. He did not think the Appellant was suffering from PTSD, albeit he suffered from intrusive recollections. Dr McNulty found no general change in the Appellant’s presentation over the two years but noted he was having greater difficulties with his attention and concentration.

Dr Heydari gave a concurring diagnosis. Dr Heydari described the Appellant as having

Dr Heydari concluded:

The FTTJ also had evidence in the form of a short e-mail from the Appellant’s GP, Dr Judith Eling, dated 29^th September 2013 which read as follows:

Dr Heydari commented on Dr Eling’s e-mail as follows:

In the latter passage, therefore, Dr Heydari emphasised the “subtle” effects which the Appellant’s deficits might have on his functioning and highlighted the fact that mild learning difficulties may be hard to diagnose, even for professionals.

A similar point was made in The Joint Presidential Guidance Note No. 2 of 2010 (“Child, vulnerable adult and sensitive appellant guidance”) which was also before the FTTJ (at paragraph 21):

The FTTJ’s judgment runs to 51 pages. It rehearses all the documentary and witness evidence in extensive detail, including the medical evidence (pages 3-37). The findings occupy the remainder of the judgment (pages 37-51).

The FTTJ summarised the issues in the case as follows (page 3):

whether the appellant has a well-founded fear of persecution in Iran (or, my comment – a well-founded fear of serious ill-treatment) as a result of political/imputed political opinion, as a smuggler involved in illegal activity;

whether the appellant was at risk as a result of race/ethnicity as a Kurd and/or who has contravened Iranian law; or

evasion of military service; or

illegal exit from Iran and/or with an enhanced risk of questioning on arrival on account of his previous illegal activities.”

To this, the FTTJ added the following comment in parenthesis:

The FTTJ began his analysis of the medical evidence (on page 43) by acknowledging that the question before him was whether the medical evidence before him demonstrated that the finding of the AITJ as to the Appellant’s credibility was unsafe, i.e. “whether… the implausibility and inconsistencies in the Appellant’s account were due to his cognitive difficulties and low IQ” (paragraph 35).

The FTTJ said this about Dr McNulty and Dr Heydari’s evidence:

The FTTJ found against the Appellant on the following basis:

The key question for the FTTJ to determine was whether the medical evidence demonstrated that the finding of the AITJ as to the Appellant’s credibility was unsafe. He was, of course, not bound to accept the evidence of the Appellant’s experts or give their views full weight. He was, however, bound to consider the medical evidence before him carefully and base his findings on a proper reading of the experts’ reports.

In my view, the FTTJ unfortunately misread, misunderstood or mischaracterised the Appellant’s psychological and psychiatric evidence in a fundamental respect: he erroneously described the evidence of Dr McNulty and Dr Heydari as suggesting that the Appellant was suffering from “very severe malfunctioning” or “severe cognitive difficulties” (see paragraphs 35 and 45 of his judgment). This was not, however, what either Dr McNulty or Dr Heydari said in their reports. Indeed, their evidence was to quite different effect: both consistently described the Appellant’s cognitive difficulties as “mild”, i.e. at the other end of the scale. The FTTJ also appears, incorrectly, to have ascribed the comment “[the Appellant’s] reasoning being compared to a 7 or 8 year old child” to the Appellant’s experts (see paragraph 35) – when in fact it was something said by another witness, a Mr Kaurseed, who was a friend of the Appellant and not an expert (see paragraphs 42 and 45).

In my view, the FTTJ’s fundamental misapprehension as to the import of Dr McNulty and Dr Heydari’s evidence regrettably led him into serious error in his reasoning and findings and, ultimately, caused him to set his face against the Appellant’s case and find against the Appellant.

The FTTJ’s scepticism as to the Appellant’s case is most apparent from his recurrent use of rhetorical questions. I highlight three passages in his judgment in particular. First, the FTTJ asked rhetorically at paragraph 39:

Second, the FTTJ asked rhetorically at paragraph 41:

Third, the FTTJ then further asked rhetorically at paragraph 42:

The FTTJ was clearly struck by what he perceived to be a major disparity between what the Appellant’s expert evidence said about the Appellant’s ‘severe’ cognitive difficulties on the one hand (as he mistakenly thought) and what the factual evidence, in fact, suggested about the Appellant and his abilities (i.e. that the Appellant appeared quite normal and capable) on the other:

It is apparent from the judgment that this caused the FTTJ to develop a high degree of scepticism about both the Appellant’s expert evidence (which he plainly thought exaggerated the Appellant’s condition) and about the Appellant himself, whom he described several times as “tactically astute”. The FTTJ clearly formed the strong view that the Appellant had somehow cynically manipulated the legal system and the medical evidence to his advantage:

Ms van Overdijk, on behalf the SSHD, made two main points in response under Grounds (2) and (3). The first was that it was important to have regard to the context in which the FTTJ was considering the medical evidence, namely, on the basis that the AITJ has made a clear and unequivocal finding that the Appellant’s account of being an alcohol smuggler was “thoroughly implausible” (see above); and seen in this context, the FTTJ was entitled to conclude that the Appellant’s psychological evidence was not sufficiently compelling to displace the AITJ’s original finding. The second was that, as the FTTJ explained “[t]here were discrepancies which cannot be explained, on my findings, by any problems in relation to the appellant’s cognitive functioning” (see paragraph 46).

In my view, however, neither of Ms van Overdijk’s points is capable of rectifying the fundamental flaws in the FTTJ’s approach to the evidence and the Appellant’s case. As explained above, it is clear that the FTTJ’s fundamental misapprehension as to the Appellant’s medical evidence led him to a series of errors when it came to analysing the Appellant’s case.

In my view, it is possible that, had the FTTJ understood and approached the expert evidence correctly, he might have formed a different view as to the central question before him, namely whether “… the implausibility and inconsistencies in the Appellant’s account were due to his cognitive difficulties and low IQ” (paragraph 35).

In summary, in my judgment, for the reasons I have elucidated above, the FTTJ’s findings and conclusions in this case were, at least, partly based on his own flawed understanding of the medical evidence and are, therefore, on their face, unsustainable. They amount to significant errors of law which vitiate the FTTJ’s decision.

The gravamen of the medical evidence of Dr McNulty and Dr Heydari, properly read and understood, together with the Appellant’s young age, arguably provided a plausible explanation for the infelicities and inconsistencies in the Appellant’s account which formed the basis of AITJ JFW Phillips’ original adverse finding on credibility. Accordingly, on this basis, it is arguable that the FTTJ could have concluded that the adverse finding of the AITJ as to the Appellant’s credibility was unsafe.

In my view, Grounds (2) and (3) are made out and are sufficient to determine this appeal in favour of the Appellant.

For the reasons given above under Grounds (2) and (3), I would allow this appeal.

There is an increasing tendency for First-Tier judgments to be overly long and to contain unnecessary detail. This can, itself, cause problems of consistency and cogency. Laborious recitation of every piece of evidence is not necessary or desirable and simply adds to the already heavy burden on First-Tier judges. It is only necessary to refer to evidence that is relevant to the issue or issues for determination. Length is no substitute for analysis.

I agree.

I agree.