United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004555
	First-tier Tribunal No: PA/00890/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 18 ^th of February 2025

 

Before

 

UPPER TRIBUNAL JUDGE PERKINS

DEPUTY UPPER TRIBUNAL JUDGE SKINNER

 

Between

 

RN

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr K. Wood, legal representative, instructed by IAS

For the Respondent: Ms Lecointe, Senior Home Office Presenting Officer

 

Heard at Field House on 7 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

 

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court .

DECISION AND REASONS

 

1.              The appellant is a Kurdish national of Iraq. He arrived in the UK and claimed asylum in 2021. That claim was refused by the respondent on 26 January 2024 and the appellant appealed that decision to the First-tier Tribunal ("FTT"). By a decision promulgated on 2 August 2024, First-tier Tribunal Judge Jepson ("the Judge") dismissed his appeal. Permission to appeal the FTT's decision was granted by First-tier Tribunal Judge Parkes on 27 September 2024. The appeal was heard via MS Teams, with the parties attending remotely. There were no technical issues and we were satisfied that everyone could see and hear each other.

2.              Before the FTT, an application was made that the appellant should be treated as vulnerable on the basis of his PTSD, which was evidenced by way of psychiatric report, and the fact of which the Judge appears to have accepted. Various adjustments were sought to the manner in which cross-examination would be conducted, but, as there was no Presenting Officer in attendance on behalf of the respondent, these were refused as unnecessary.

 

3.              The appellant's vulnerability was however relied on by his representative as relevant to the Judge's assessment of his credibility. This was important in this case because the appellant's account has not been altogether consistent, and his credibility was the central basis on which the Judge dismissed the appeal: at para.45, the Judge held, "The discrepancies go to the core of the narrative. As a result, I do not believe any of the Appellant's account." The Judge addressed the appellant's mental ill-health in relation to his credibility at para. 43. He said,

"As to credibility, Ms Ballard seeks to address any inconsistency on two front [sic] - first the low standard of proof required for a protection claim and second reference in the expert's report to memory problems potentially impacting the Appellant's memory. I have taken that into account. It cannot, however, be considered a free pass by which any discrepancy can simply be ignored. There is no suggestion the Appellant is so unwell he could not provide instructions to his representatives or give evidence."

4.              The first ground of appeal contends that the Judge erred in this paragraph in his approach to the appellant's vulnerabilities. In particular, Mr Wood submitted that Judge had:

1. not complied with the Immigration and Asylum Chamber Presidents' Joint Presidential Guidance Note No 2 of 2010 on Child, vulnerable adult and sensitive appellants ("the Guidance Note") and in particular the requirement in para.15 of that Guidance Note that "The decision should record...the effect the Tribunal considered the identified vulnerability had in assessing the evidence...";
2. erred in conflating vulnerability with capacity; and
3. erred in treating vulnerability as either conferring a free pass or not in relation to credibility (i.e. treating it as a binary question).

5.              We do not consider that the Judge did conflate vulnerability with capacity. The fact that the appellant did not lack capacity was not said by the Judge to mean that he was not vulnerable. It was simply a way of expressing his view as to how vulnerable (or not) the appellant was. It is perhaps a somewhat infelicitous way of expressing it, but the meaning is in our view clear and does not demonstrate error.

6.              Where we do find the Judge fell into error is in relation to the first and third of Mr Wood's submissions.

 

7.              Para.3 of the Guidance Note provides that "It is a matter for you [that is, a Judge] to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole." Para.15, as we have already noted, requires that the effect the Tribunal considered the identified vulnerability had in assessing the evidence must be recorded in the decision.

8.              It is obviously correct from this that, as the Judge said, having a vulnerability does not provide a "free pass" in the sense (which we understand the Judge to have meant) that it follows from a vulnerability that an appellant must be believed. However, the fact that it does not provide a free pass does not mean that no regard is to be had to an appellant's vulnerability in assessing his or her credibility. While the Judge does not say so in terms, that appears to us to be what he meant.

9.              Most importantly, there is no record in the FTT's decision of what effect the Judge considered the identified vulnerability had in his assessment of the appellant's credibility. It is clear that the Judge did not find the appellant to be credible, but it is wholly unclear what allowance, if any, the Judge made for the appellant's memory issues, nor why. It may be - and we do not suggest that the Judge would not have been entitled to do so - that he considered that notwithstanding the appellant's vulnerability, he did not consider that the discrepancies in his evidence could reasonably be explained by those vulnerabilities and therefore that the appellant was not credible. If that was the Judge's reasoning, it is not recorded, as required.

10.          We therefore conclude that the Judge failed to comply with the requirements of the Guidance Note. The Guidance Note is central to the fair administration of justice in the Immigration and Asylum Chamber, in which appellants and other witnesses who are  vulnerable frequently appear and/or give evidence. Following the Guidance ensures that fact-finders provide the best practicable conditions for a  vulnerable person to give their evidence, and for their  vulnerability to be taken into account when assessing their evidence:  SB ( vulnerable  adult: credibility) Ghana [2019] UKUT 398 (IAC); [2020] Imm AR 427. In  AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123, the Senior President of Tribunals (with whom Underhill and Gross LJJ agreed) held at [30], that a failure to follow the Guidance Note will "most likely be a material error of law". In our judgment, the expression "most likely" in that phrase applies to the question of materiality, not whether it amounts to an error. Failure to follow the Guidance Note is an error, it just may not always be a material one.

11.          Miss Lecointe sought to persuade us that it was clear that the Judge did not believe the appellant's evidence and therefore the error was not material. That is in our view a non sequitur. As already noted, it is clear that the Judge found the appellant not to be credible, but the question for the purposes of deciding whether the Judge's errors are material is whether the decision would inevitably have been or would have been bound to have been the same had the errors not been made: Detamu v SSHD [2006] EWCA Civ 604 at [14] and [18]; Sadovska v SSHD [2017] UKSC 54; [2017] 1 WLR 2926 at [31]. The Judge's errors here go to the heart of his credibility assessment and the Judge's failure to explain what effect the appellant's vulnerability had on this assessment mean that it is not possible for us to assess what difference the proper application of the Guidance Note would have had. We accordingly reject the submission that these errors are immaterial.

12.          The appellant was granted permission on a second ground, but the parties were agreed that if we found for the appellant on ground one, we should set aside the decision and remit the appeal to the FTT for redetermination de novo and that it was unnecessary for us to consider ground 2. The appeal is accordingly allowed on ground 1.

Notice of Decision

 

The decision of First-tier Tribunal Judge Jepson dated 2 August 2024 involved the making of an error of law and is set aside. The appeal is remitted to the First-tier Tribunal to be determined de novo. There are no preserved findings.

 

 

Paul Skinner

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

11 February 2025