SB v The Secretary of State for the Home Department

The appellant is a citizen of Ghana, born in 1983. He entered the United Kingdom in 2011 as a visitor. In 2012, he submitted an application for residence documentation as a spouse of an EEA national. That was refused by the respondent in July 2013. The appellant appealed against that refusal but by March 2014 he had become appeal rights exhausted.

On 15 April 2015, the appellant was convicted at Aylesbury Crown Court of two counts of rape of a female aged 16 years or over. He was sentenced to eight years’ imprisonment. The appellant raped a stranger in th e street, both anally and vagin ally. The appellant pleaded not guilty, thereby requiring the victim, according to the Sentencing Judge, “to relive her appalling ordeal at your hands, but you chose not to give evidence and go into the witness box yourself”. The Probation Service concluded that the appellant posed a high risk of harm to adult females and that he had a high risk of sexual offending.

On 30 January 2017, the respondent served a notice of decision to make a deportation order on the appellant. Six months later, the appellant claimed asylum and, three months later, that he was a victim of modern slavery.

The appellant’s asylum and protection claims were based on his assertion that he would face mistreatment on his return to Ghana, owing to his unwillingness to traffick drugs to the United Kingdom. He also feared serious harm there as a result of his United Kingdom rape conviction. On 3 April 2019, the respondent refused the appellant’s protection claim. On 16 April 2019, the appellant filed a notice of appeal with the First-tier Tribunal. At this point, he was represented by Duncan Lewis Solicitors, having signed a letter of instruction to them on 18 January 2019. Duncan Lewis were also acting in a judicial review, challenging the appellant’s detention by the respondent. Dicksons Solicitors had previously acted for the appellant, submitting representations on his behalf in 2017 and 2018.

On 24 April 2019, the First-tier Tribunal sent the appellant and Duncan Lewis a notice relating to the pre-hearing review of his case and of the substantive hearing, to be held respectively on 13 and 20 May 2019.

On 10 May 2019 at 10.15 am , Ms F , a trainee solicitor at Duncan Lewis, sent an email to the First-tier Tribunal headed “URGENT ADJOURNMENT REQUEST” . M s F ’s application said:-

First-tier Tribunal C aseworker Varney refused the adjournment application in a written decision dated 13 May 2019. The caseworker observed that although Duncan Lewis made reference to the appellant’s medical records, they did “not identify any aspects of these records which indicate he may not be capable of giving instructions. There is no guarantee that funding will be available for the country expert report and the representatives’ reasons for requiring such a report are speculative”.

On 15 May 2019, the First-tier Tribunal was supplied with an appeal bundle from the appellant, running to 479 pages. Also on that day, a witness statement of the appellant was filed with the First-tier Tr ibunal, signed by the appellant on (it seems) 14 May. The statement detailed the appellant’s claim to be in need of international protection and commented on various paragraphs of the respondent’s letter of refusal. Under the heading “Mental Health” , the appellant referred to his medical records , stating that he was “moderately severe depressed and I am currently on medication for this”. He also described his “low mood and lack of motivation” and that in the past “I have attempted to self-strangulate”. He also said that he suffered from “nightmares and flashbacks. I may only able to sleep for a few hours a day. I have been taking antidepressants and anti-anxiety medication for a period 3 years”.

On 20 May 2019, the appellant’s appeal came before First-tier Tribunal Judge Plumptre, sitting at Harmondsworth. The appellant was represented by Mr Allison. He renewed the application of Duncan Lewis for the hearing to be adjourned. The First-tier Tribunal Judge recorded Mr Allison’s application as follows:-

Judge Plum p tre decided to refuse the adjournment application. She recorded her reasons as follows:-

The judge then recorded what happened next:-

Beginning at paragraph 24, Judge Plumptre set out the appellant’s evidence, given orally to her, adopting his written witness statement. She also recorded the cross-examination of the Presenting Officer.

At the beginning of the section of her decision dealing with findings of fact and credibility the judge said:-

At paragraphs 41 to 48, Judge Plumptre gave her reasons for concluding that the appellant was guilty of a particularly serious crime, such that (even if he succeeded in establishing a real risk of harm, if returned to Ghana) he would not be entitled to refugee status in the United Kingdom. She noted, in particular, at paragraph 41 that “Mr Allison sensibly did not challenge this finding by the respondent which I endorse”.

Judge Plumptre then turned to the assessment of the appellant’s claim to be at real risk of serious harm in Ghana. At paragraph 50, she explained how her approach to the issue of trafficking, in respect of which the appellant had received a negative decision from the Competent Authority, was to consider all the evidence in the round at the date of the hearing, applying the lower standard of proof.

Beginning at paragraph 51, the judge then examined the appellant’s account of being asked to smuggle drugs in to the United Kingdom. She gave weight to the appellant’s answer in his screening interview that he was an electrician in Ghana with a good job and that a man he worked with had said that “he would help me to get a good education”. This man “gave me a bag to bring with me but a friend tipped me off that there were drugs in the bag so I cam e without it”. Judge P lumptre found that the fact the appellant had left the bag behind “speaks for itself in that he exercised free will to do this and was not in any way coerced or forced to do so”. That was, she found, inconsistent with the appellant’s assertion that he was “being exploited”. Further, in both his screening and substantive asylum interviews the appellant had made no mention of being detained and tortured in a house for three weeks. She found that claim to be “a later fabrication”.

The judge then turned to the appellant’s letter of 24 November 2018, where he had been given an opportunity to clarify discrepancies. The appellant claimed that the interviewing officer who conducted the asylum interview had made a number of errors. The judge gave weight to the fact that the interview took place on 30 November 2017 and that the appellant had been sent a copy of the interview notes but chose to make no complaint about any errors for nearly a year, until 24 November 2018. Some of the alleged discrepancies concerned other sources of information which did not relate to the asylum interview. The judge gave weight to the fact that in his letter of 28 March 2017 and during his asylum interview the appellant stated that he had no family in Ghana, whereas in the NRM Referral there was reference to the appellant telling an Im migration Officer that threats were made to him if he told his family in Ghana.

In a Rule 35 report, compiled whilst the appellant was in detention consequent upon him raising a claim that he had been tortured, the judge noted there was refere nce to him saying that the ring leader of the drugs gang had asked for information about his family and had threatened him. The judge gave weight to the appellant’s re sponse of 24 November 2018, where the appellant stated that when referring to family he had meant “my relatives not a direct family and even my friends as well”. The judge did not find that to be a plausible explanation, given that the appellant had previously said he had no family in Ghana. The judge considered that the appellant’s account “has been undermined by these severe inconsistencies”.

At paragraph 54, the judge gave weight to the appellant’s letter of 22 February 2017 that “those you have suffered from since your grandmother died when you were 10” conflicted with what he had s aid at his asylum interview, that he did not come across or meet the drug gang until after he had done an electrical job , when he would have been approximately 28 years old.

At paragraph 55, the judge gave weight to the fact that the NRM Referral Report made reference to the appellant being held in a house for five days before being taken to the airport in Ghana, whereas the Rule 35 Report recorded the appellant as saying he was held in a house for two to three weeks. There was also no mention in either of the interviews of the appellant being held for any length of time before going to the airport. In the NRM Referral, the appellant said he was threatened by the gang that he would be raped and was beaten and kicked; whereas there was no mention at all of this in his asylum interview (paragraph 56). The judge also noted that the appellant had not spoken to the interviewing officer at his asylum interview about being stabbed because the officer was not interested to ask him information about this. The judge found t his to be “a fabrication and do not accept that he mentioned this in his asylum interview”, for if he had , it would undoubtedly have been recorded (paragraph 57).

The appellant was inconsistent about whether he had been given a locked bag containing drugs at the airport or whether he had been given it at the house. At paragraph 59, the judge noted the discrepancy that, at interview, the appellant said he gave the bag containing drugs to his friend, whereas he stated in the letter dated 11 March 2017 that he had dumped the bag. At paragraph 61, the judge did not find it credible that the appellant would enter into an arrangement with the man known as Mr Noah, whom he had known for only about three weeks , or that the latter was willing to entrust the appellant with the task of importing dangerous drugs, after knowing him for only such a short period of time.

At paragraph 62, the judge found that the appellant gave no credible explanation at interview as to why he would put his best friend’s life at risk by giving him the bag allegedly containing drugs. The judge rejected the appellant’s explanation that he did not put his friend’s life at risk because he thought “he could sort it”.

At paragraph 63, the judge considered a threatening letter said to come from the leader of the gang and also letters of support of the appellant, including a letter from his church. Considering these in the round, she concluded that it was for the appellant to show that documents adduced in his support could be relied upon to support his claim.

Having made that self-direction, the judge, at paragraph 64, found the purported letter from the gang leader unreliable, in that it made reference to the gang going after the appellant’s family, which was inconsistent with h is claim that his parents died in a car crash when he was aged 9 or 10 and that his grandfather died when he was 10 to 15 years old ; and that he had no family to return to in Ghana. There was, indeed, no evidence that the letter even came from Ghana.

As regards the appellant’s claim that the gang knew the date the appellant would be released from prison, the judge held that there was no means of any gang or friend being aware of the appellant’s removal date to Ghana unless he chose to inform them himself (paragraph 66).

Judge Plumptre then turned to the issue of suicide risk:-

At paragraph 75, dealing with section 8 of the Asylum and Immigration (Treatment of Claimants, e tc.) Act 2004 (claimant’s credibility), Judge Plumptre noted that, although the appellant had allegedly come to the United Kingdom in 2011 to escape his problems in Ghana and claim asylum ( as asserted in two of his letters written in support of his challenge to deportation ), he did not claim asylum at the airport and did so only after he had been served with an order of deportation. That delay constituted “ behaviour” which undermined the credibility of the appellant’s asylum claim.

Finally, at paragraph 76, Judge Plumptre noted that “there were sensibly no submissions on Article 8 on which the appellant cannot rely, given the breakdown of his marriage and lack of any contact with his daughter”. She then proceeded to dismiss the appeal.

On behalf of the appellant, Mr Allison drafted the grounds attached to Duncan Lewis’s application for permission to appeal to the Upper Tribunal. The grounds described the “factual basis of A’s appeal” as a fear of the man named Noah, who had “previously tortured” the appellant in Ghana and threatened him with death; and “the risk of A committing suicide as a result of his fears about returning to Ghana”.

Paragraph 5 of the grounds contended that the renewed application to adjourn made t o Judge Plumptre at the hearing “was based at least in part on the need to obtain supporting medical evidence of the risk of suicide”. In the light of what the grounds asserted was the respondent’s “procedural obligation to assess available treatment in Ghana, it was essential for A to be able to produce reliable evidence from a mental health professional properly qualified to assess his mental state, diagnose any relevant medical conditions and proffer an expert opinion on risk. Medical records could not properly be considered as a satisfactory substitute”.

So far as concerned Judge Plumptre’s reliance on delay on the part of Duncan Lewis, the grounds contended that since the appellant “has been in detention throughout the proceedings, the available time to obtain supporting medical evidence was necessarily limited”. The grounds went on to say that it had been explained “that in light of the need to make an application for funding t o the LAA [Legal Aid Authority ] due to the quotation being above the relevant threshold, an adjournment of 8-10 weeks was being sought. On this basis, there was simply insufficient time to make the necessary arrangements”.

The grounds contended that Judge Plumptre had been wrong to rely on the OASys Report that the appellant had no mental health issues, despite accepting that he was a vulnerable witness due to his diagnosis of depression. So far as the suicide attempts were concerned, the grounds submitted that the judge had failed to have regard to the fact that two further suicide attempts were said to have post-dated the first one in January 2019. This touched upon the point made earlier in the grounds, that there was a gap in the medical records from 10 February to 19 April 2019 and no medical records from 30 April 2019 onwards.

Ground 2 asserted that Judge Plumptre misapplied the law on suicide risk, as articulated in J v Secretary of State for the Home Department [2005] EWCA Civ 6529 and Y and Z (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362. Judge Plumptre had wrongly assumed that the high threshold of Article 3 harm required i n so-called “health” cases apply, when those authorities made it plain that this was not the correct legal position.

Ground 3 asserted that Judge Plumptre had not given effect, in analysing the appellant’s evidence, to the fact that the appellant had been treated by her as a vulnerable witness.

Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Bibi on 17 July 2019. Somewhat remarkably, Judge Bibi, at paragraph 2, stated in terms that Judge Plumptre’s decision “contains a material error of law”. At paragraph 3, Judge Bibi said that Judge Plumptre “has erred in not granting an adjournment to enable the appellant to produce reliable evidence from a mental health professional properly qualified to assess his mental state, diagnose any relevant medical conditions and to offer an expert opinion on risk. The medical records could not properly be considered as a satisfactory substitute”.

It is inappropriate for a judge granting permission to appeal to assert that the decision under challenge contains a material error of law. Although, at paragraph 4 of her decision, Judge Bibi stated that “there is an arguable error of law that has been identified which merits further consideration ” , her views, as expressed in paragraphs 2 and 3, should have been couched in terms of arguability.

If Judge Bibi had been satisfied, not just that there was an arguable error of law, but that Judge Plumptre had in fact made an error of law in her decision, then Judge Bibi should have revi ewed that decision pursuant to r ule 35 of the Tribunal Procedure (First-tier Tribunal) ( Immigration and Asylum Chamber ) Rules 2014 . We are not suggesting that such a course would have been appropriate reaction to Judge Plumptre’s decision; merely that it is only in the context of review that a judge considering an application for permission to appeal is entitled to say that the decision under challenge is legally erroneous. As will be evident from what follows, the challenges to Judge Plumptre’s decision are, in fact, devoid of merit.

The oral and written grounds of challenge to Judge Plumptre’s decision to refuse to adjourn the subst antive hearing mis-characterise the application with which she was faced. As can be seen from the application sent by email on 10 May from Ms F of Duncan Lewis, the application to adjourn in order to obtain a psychiatric report was on the basis that this “is required to assess whether the appellant is capable of giving instructions and thus his ability to effectively take part in the legal proceedings”. Although Ms F made reference to the appellant having attempted to self-strangulate, the adjournment application was not made, even in part, so that a medical assessment could be obtained of the risk of the appellant committing suicide, if he were returned to Ghana.

When Mr Allison renewed the application before Judge Plumptre, it is evident from paragraph 11 of her decision that this was on the same basis as Ms F had put the written application. The email read out to the judge by Mr Allison, and recorded by her at paragraph 12 of her decision , is concerned with the appellant’s ability to give instructions, even if “he would be able to stand as a witness”.

Although the judge, at paragraph 14, recorded Mr Allison as saying that an adjournment was needed “for a professional medical assessment as to the appellant’s capacity to give instructions and possible suicide risk”, it is quite evident that this was no more than an aside. I t is noteworthy that Mr Allison’s written skeleton argument of 20 May 2019 dealt at length with the issue of suicide risk to the appellant but did not contain any submission that further evidence on this issue was necessary. On the contrary, paragraph 17 of the skeleton reads as follows:-

At paragraph 18 of the skeleton , Mr Allison’s submission that the respondent had an obligation to assess what treatment would be available in practice, to preclude the real risk of suicide, was couched in terms of what medical evidence might be available in Ghana. We have not been told that the psychiatrist whom Duncan Lewis wished to instruct has any expertise about mental health facilities in Ghana.

We are not satisfied that any criticism can be made of Judge Plumptre’s finding at paragraph 19 of her decision regarding Duncan Lewis having had an opportunity of consulting Dr Sahota at an earlier point in time. The medical evidence before the judge extended back ov er a considerable period . The appellant himself said that he had been taking antidepressant medication for three years. Over much of that period he had been instructing Dickson s Solicitors, who were making representations on his behalf following service of the notice of decision to make a deportation order in January 2017. The change of solicitors which, as we have said, appears to have occurred in January 2019 falls to be looked at in that light. In any event, the mere fact that the appellant had been in detention at the time Duncan Lewis began to represent him should not have posed significant difficulties for such an experienced immigration practice.

At the hearing, we asked Mr Allison whether Dr Sahota had produced a report. Mr Allison replied that he had not. The explanation given was that the Legal Aid A gency would not fund such a report unless and until the Upper Tribunal had found a material error of law in the First-tier Tribunal’s decision. Under questioning from us, Mr Allison was unable to say whether Duncan Lewis had, in the interim, made any approach to the LAA to secure exceptional funding, or the like, in order to enable such a report to be prepared.

We have to say that we find this stance problematic. The Upper Tribunal is being urged to set aside the decision of First-tier Tribunal Judge Plumptre on an entirely speculative basis. So far as concerns the alleged gap in medical records, referred to in the grounds of application for permission to appeal, Duncan Lewis could have obtained the appellant’s authority to get these from the respondent, in respect of the remaining period when the appellant was in detention. Given that the appellant has now been released, and lives in Cornwall, records could have been sought from his General Practitioner.

We make no professional criticism of Ms F; but the events described above raise the question of how a trainee solicitor was allowed by her firm to make the assertion that th is appellant was not capable of giving instructions, when a more experienced practitioner would have realised the difficulties with such a stance , as belatedly occurred: see paragraph 11 above.

We find that F irst-tier Tribunal Judge Plumptre did not err in law in refusing to adjourn. She properly addressed the application made to her.

As we have seen , Judge Plumptre dealt with the issue of suicide risk at paragraphs 67 to 74 of her decision. The criticism in the grounds of her finding at paragraph 68, regarding the absence of evidence of two further suicide attempts, fails for the reason we have just given: there is still no satisfactory evidence of these, let alone anything to show that it would have materially affected the judge’s analysis of the suicide risk, based on the evidence that was before her.

The appellant contends that Judge Plumptre misapplied the relevant law, in that J held that the risk of harm is not to be assessed by reference to the elevated threshold for “health cases”, such as one finds articulated in D v United Kingdom (1997) 24 EHRR 423 and in N v Secretary of State for the Home Department [2005] UKHL 31. Notwithstanding that J featured prominently in his written grounds, Mr Allison did not consider it necessary to provide the Upper T ribunal with a copy of the judgment or of that in Y and Z (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362, upon which he also relied.

At paragraph 67 of her decision, the judge set out a synopsis of the Court of Appeal’s judgment in J . We can see nothing wrong with what she there said. Under the heading “Foreign Cases” Dyson LJ set out the following requirements:-

That articu lation of the test was specifically in the context of “foreign cases”. However, at paragraph 33, under the heading “Domestic Cases” Dyson LJ said this:-

At paragraph 42, Dyson LJ said:-

The judgment of Sedley LJ in Y and Z makes reference to another Court of Appeal case that post-dates Y : R A (Sri Lanka) v Secretary of S tate for the Home Department [2008] EWCA Civ 1210. Richards LJ, giving the judgment of the Court, had this to say about the standard or threshold to be applied where the risk of Article 3 harm following return concerns the risk of suicide:

In Y and Z , Sedley LJ distinguished but did not disapprove what Richards LJ held at paragraphs 49 and 50 of RA . Those paragraphs accordingly remain an authoritative finding on risk of suicide after return. They fully accord with what Judge Plumptre held in the present appeal. It is unfortunate that we were not referred to RA at the hearing.

So far as UK suicid e risk was concerned, there was no evidence before the judge to show that the respondent was not responding appropriately, whilst the appellant was in detention, following the appellant’s suicide attempt. On the evidence before the judge, she was entitled to conclude at paragraph 69 that the appellant’s mental state was “consistent with being depressed about the breakdown of his relationship with his wife and lack of contact with his daughter whom understandably the appellant misses”. No suggestion was made by Mr Allison that the respondent would not take appropriate precautions to safeguard the appellant, in the event of him being detained with a view to effecting his removal.

So far as Ghana was concerned, there is no challenge to the judge’s finding at paragraph 74 that relevant drugs, including the commonly prescribed c italopram, m irtazapine, and s ertraline, are available in Ghana. Furthermore, paragraph 30 of J is highly important. There, Dyson LJ found that, if a person’s fear of harm on return is not well-founded “that will tend to weigh against ther e being a real risk that the removal would be in breach of Article 3”. The judge made findings of fact that the appellant was not a witness of truth and that his account of what he feared might happen to him in Ghana was a fabrication. For the reasons we will shortly give, the challenge to the judge’s conclusions is not made out. Accordingly, the appellant will know that there are no individuals in Ghana, such as Noah, waiting to harm him.

Mr Allison sought to rely upon Y and Z . Quite apart from what we have just said, the facts of Y and Z were entirely different from the present one, in that the appellants, who had been imprisoned and tortured in Sri Lanka, were so fearful of what might happen to them on return that there was a real risk that they would commit suicide, even though the Sri Lankan authorities might not any longer be adversely interested in them: paragraphs 49, 50 and 61 to 64.

We conclude that the Judge Plumptre did not materially err in law in her assessment of the suicide risk to the appellant.

At paragraph 23 of her decision, Judge Plumptre said that she would treat the appellant “as a vulnerable witness in accordance with the Joint Presidential Guidance Note No. 2 of 2010”. We assume that she meant “vulnerable adult”: see paragraph 2, footnote 2 to the Guidance Note and paragraph 1 of the Senior President of Tribunal s’ Practice Direction: C hild, vulnerable adult and sensitive witnesses. No point emerges from this slip.

The appellant’s final ground of appeal contends that, having decided to treat the appellant as a vulnerable adult, at no point did Judge Plumptre “appear to give effect to” this fact, when making her findings of fact including, importantly, the findings of credibility.

There is no merit in this challenge. The fact that a judicial fact-finder decides to treat an appellant or witness as a vulnerable adult does not mean that any adverse credibility finding in respect of that person is thereby to be regarded as inherently problematic and thus open to challenge on appeal .

By applying the Joint Presidential Guidance Note, No 2 of 2010, two aims are achieved. First, the judicial fact-finder will ensure the best practicable conditions for the person concerned to give their evidence. Secondly, the vulnerability will also be taken into account when assessing the credibility of that evidence.

So far as the second aim is concerned, the Guidance makes it plain that it is for the judicial fact-finder to determine the relationship between the vulnerability and the evidence that is adduced:

If one examines the judge’s findings, one can see that they are fully in accord with that second aim. At paragraph 40, the judge expressly stated that she had had regard to the appellant as vulnerable, given his diagnosis of depression “and that he should be accorded liberal application of the benefit of the doubt”. Mr Allison was completely unable before us to show that Judge Plumptre might not, in fact, have done what she expressly said she did. On the contrary, Mr Allison could offer no explanation of how the fact that the appellant has been on antidepressants is capable of having a positive bearing on the credibility of his account, by reference to his contradictory statements ranging over a considerable period of time. As the Vice President observe d at the hearing , there is nothing to show that the appellant’s answers at interview were any more or less to be taken at face value on this account th a n were his subsequent written submissions, including his witness statement of May 2019.

In any event, certain fundamental problems with the appellant’s account cannot rationally be ascribed to his depression. His inconsistencies regarding whether he has family in Ghana were attempted to be explained on the basis that he meant “my relatives not a direct family and even my friends as well” (paragraph 53). The appellant was not here asserting that he had forgotten about or been too depressed to remember whether he had family in Ghana. Likewise, the judge’s findings at paragraphs 60 to 62 were that it was unbelievable that an individual who had not known the appellant for long would give him drugs , or that the appellant would enter into such an arrangement. The same is also true of the judge’s finding th at it was not believable the appellant would put his best friend’s life at risk.