Diaby v Secretary of State for the Home Department [2005] EWCA Civ 651

Case No C4/2004/2539[2005] EWCA Civ 651
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Venue Royal Courts of JusticeDate Thursday, 12th May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LAWS
LORD JUSTICE SCOTT BAKER
Between
LADJI DIABYAppellant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A MUSTAKIM (instructed by City Legal Partnership Solicitors) appeared for AppellantMR P PATEL (instructed by Treasury Solicitors) appeared for Respondent
J U D G M E N TThursday, 12th May 2005

LORD JUSTICE SCOTT BAKER:

The

[1]appellant is aged 36 and a citizen of the Ivory Coast. He arrived in the United Kingdom on 4th June 2003 and claimed asylum two days later. His application was refused on 31st July 2003. The adjudicator dismissed his appeal on asylum and human rights grounds on 20th November 2003. He appealed with leave to the Immigration Appeal Tribunal, who in turn refused his appeal on 8th October 2004.[2]His claim was that he feared persecution from the authorities in the Ivory Coast because of membership of the RDR, a political party, and because of his ethnicity as a Malinki. He claimed that in September 2002 he was captured by rebels, taken away and questioned about his uncle. He was released and then detained a few days later by the national military who held him for three and a half months whilst questioning and ill-treating him. There was a woman prisoner with him who was also ill-treated. In December 2002 he was left for dead and he claimed that he and an old woman made their way to Ghana where they found a European who contacted his father and arranged for money to pay for his travel to England.[3]The adjudicator did not believe the appellant. At the start of the hearing before the adjudicator, the appellant's representative, Mrs Srindran, said that she wanted an adjournment for a psychiatric report to be obtained, and also that her client had produced a video cassette which her firm, O'Keefe's, had failed to do anything about. She accepted that there had been negligence on the part of her firm creating the state of affairs that caused her then to ask for an adjournment.[4]The adjudicator's response was that he would hear the evidence and then decide whether he ought to adjourn for further disclosure. Paragraph 22 of his determination records what he did. It reads as follows:
"At the conclusion of the hearing, in response to a further request from the Appellant's representative, I reluctantly agreed to allow a short period of time for medical evidence to be submitted on the Appellant's behalf. I made it clear, however, that there had to be finality and that such evidence would have to be received in my chambers by Friday 31st October 2003, after which it would not be considered."
[5]The hearing had taken place on 17th October and it was in fact not until 6th November 2003 that the adjudicator received a report from the appellant's general practitioner, (dated 21st October) and a psychiatric report (dated 23rd October) written by a Dr Bose.[6]The adjudicator dealt with this material, which had been sent under a covering letter with a copy to the Home Office representative, in these terms:
"I should add that I finally received medical evidence, in the form of a psychiatric report and one from a GP, on 6th November 2003. Although I have considered the same, they are clearly based for the most part (particularly with regard to the Appellant's psychological state) on what he told the doctors. As I did not find him to be a credible witness, I am unable to attach much weight to the contents. I have not considered the video, or the report of it, which was also sent, as I had not given permission for such evidence to be adduced."
Nothing turns on the video and no complaint is made about the adjudicator's refusal to consider it.[7]Neither side was given the opportunity to make any further representations to the adjudicator on the medical evidence, although in that regard it is true to point out that in the covering letter that sent the two reports to the adjudicator, the appellant's representatives did not seek to make any representations about it, nor did they ask for any further opportunity.[8]The adjudicator appears to have made a decision on the appellant's credibility without taking into account anything in either report. That is apparent from the sentence which I have read from his determination:
"As I did not find him to be a credible witness, I am unable to attach much weight to the contents."
[9]The Secretary of State concedes that what has occurred, and in particular the manner in which the adjudicator approached his conclusions on credibility, was an error of law. But, he submits, the error of law was immaterial to the outcome of the case.[10]In granting permission to appeal the Immigration Appeal Tribunal said amongst other things the following:(1) That apart from two short references to what the Secretary of State had said about it in his refusal letter, the adjudicator made no reference whatsoever to the contents of any objective evidence about the situation in the Ivory Coast. Pausing there. It is plain that he approached the case simply on the basis that he did not believe what the appellant had told him.(2) However unlikely the appellant's account seemed at first sight, his credibility had to be decided on the whole of the evidence, including the medical evidence, assuming it was appropriate for the adjudicator to receive it in the circumstances that he did.(3) The medical evidence might have been expected to deal with questions of memory, ability to give evidence and scarring, including other matters.[11]So, in granting permission the tribunal was setting out clearly what it anticipated would have to be considered by the tribunal when it heard the appeal.[12]When the matter came before the tribunal on the appeal both sides were represented, but for some inexplicable reason the tribunal was neither provided with, nor apparently asked for, the medical evidence in the form of the general practitioner's report and the psychiatric report that had been sent to the adjudicator.[13]By this time the appellant was represented by new solicitors; the City Law Partnership. Their grounds drew attention to negligence in the conduct of the matter on the part of the appellant's previous solicitors and sought a remittal for a fresh hearing before a different adjudicator with full and proper medical records. It may be that the appellant's representatives fell into error in assuming that the matter would be remitted to a fresh adjudicator for such a hearing, and they did not give proper consideration to the question of the materiality of such error, or errors, of law as there had been.[14]Be that as it may, the tribunal proceeded without looking at the two medical reports that the adjudicator had seen. It seems to me that in the ordinary course of events those reports ought to have been already on the file that was provided to the tribunal for the hearing. If for any reason they were not on the file, particularly bearing in mind the grounds on which permission had been granted, it seems to me that it was incumbent on the tribunal to make it clear to both parties, and the appellant in particular, that they required to have a copy of these documents so that they could carefully consider the materiality of the error of law that there had undoubtedly been.[15]However, this did not happen and the tribunal appears to have taken the view that it may have been a conscious decision on the part of the appellant's representatives not to provide this medical evidence. It is unclear upon what evidential basis the tribunal was able to reach that conclusion. Indeed, it is inconsistent with the observations of the chairman when he refused permission to appeal to this court mentioning that it was possible that there may have been a procedural misunderstanding on the part of the appellant's solicitors.[16]At any rate, the tribunal found that it was up to the appellant to establish that the error of law was material and that the appellant's representatives had failed to do so. The tribunal said:
"The appellant has failed to establish that there is any medical or psychiatric evidence going to the question of his ability to give evidence and provide a clear and consistent account of events. "... the Adjudicator erred in law by making an adverse credibility finding and only then considering the medical evidence. All the evidence should have been looked at in the round. However the appellant has not shown that this is an error with any material adverse consequence. We have no medical evidence to show that, had this been considered by the Adjudicator in the round with the rest of the evidence, it would have made any difference."
[17]In other words, they proceeded on the assumption that the GP and psychiatric reports contained nothing relevant to the appellant's credibility.[18]As I have already mentioned in refusing permission to appeal, the Vice President of the tribunal said this:
"It was for the claimant to adduce medical evidence to support his grounds of appeal. No good reason for the failure to do so has been given, apart from a possible misunderstanding of the proper procedure on the part of those acting for the claimant."
[19]In my judgment, although there may very well have been an error on the part of the appellant's advisers, the Vice President is putting it too high, bearing in mind the grounds on which leave to appeal had been given, to say that the onus was, in these circumstances, on the appellant and that the tribunal could, in effect, proceed on the assumption that the medical evidence contained nothing of materiality.[20]I turn, therefore, next, to look at what the medical evidence in fact contained. The general practitioner's report, which is to be found at page 58 in the bundle, records that the appellant appears to have had mental health problems for which he attended Lewisham Hospital. Then in the third paragraph this:
"He has apparently burns on his left leg while in Ivory Coast by the military. He also has evidence of burns affecting medial aspect of his thigh with heavy scars. He also has complained of chemicals being poured into his eye and has some visual problems related to that."
[21]Then at the bottom of page 58 the last sentence:
"These injuries in certain [and I think the word 'respects' may be missing] are consistent with the client's account of events."
[22]Then the psychiatric report, which commences at page 60, indicates that the appellant was interviewed by the psychiatrist over a period of one and a half hours in the presence of a french interpreter. On page 61 he records:
"He is a muslim and was captured and tortured by the rebel Ivory coast militia between September 2002 and January 2003. He was gagged for months and had a torch shone directly into his eyes which resulted in him having an eye defect."
[23]Then on examination, at page 63, he is described as presenting as "a young African gentleman who had an obvious eye defect and probably because of this made poor eye contact."[24]Then, finally, on page 64:
"[He] gives an account of 4 months continuous torture at the hands of the Ivory coast militia in the jungles. He was repeatedly burnt and dipped into boiling water up to his waist. There are scars on his left leg and groin areas indicative of burns in those areas."
[25]It is necessary, next, to turn back to see what the adjudicator had to say in his conclusions, on which the passages of the medical evidence that I have read might have had some bearing. The adjudicator's conclusions begin at paragraph 23. He makes it clear that it is his belief that the appellant has lied with regard to central parts of his story and that he has not come to the United Kingdom because of fear of persecution as alleged. The adjudicator then goes on in the next sub-paragraphs to summarise his concerns. In the course of paragraph (1) he recites the appellant's evidence, "I know the rebels put something in my eyes", to which the adjudicator says, "I do not regard this as a satisfactory explanation."[26]At paragraph 6:
"I am unable to avoid the conclusion that his distress was related to the difficulties he knew he was in, because of giving different accounts, rather than for any reason associated with his medical state."
[27]I would interpose at this stage that during the course of his evidence to the adjudicator, the appellant appears to have broken down and the adjudicator adjourned until he felt better.[28]Then, at paragraph 11, he refers to photographs which are alleged to show the burnt out house of the appellant's family. He goes on to say that in view of the fact he does not accept he is credible in regard to many important parts of his evidence, he is unable to accept that these photographs show what the appellant says that they purport to show.[29]Then at paragraph 12:
"Finally, with regard to the Appellant's medical condition, whilst there are many appointment letters et cetera, and it is clear that the Appellant has been prescribed some medication, he agreed that he has had no treatment to date for his eyes."
[30]A little later:
"I do not believe that the scarring resulted from the treatment he claims he was subjected to, and I am similarly not inclined to accept that he has received any significant eye injury as a result of ill treatment."
[31]I have not read out all the other bases on which the adjudicator concluded that the appellant was not credible. But what is clear is that, first of all, he did not accept that the appellant had suffered an eye injury as the appellant alleged and, secondly, that the scarring had been caused by the ill-treatment as the appellant had alleged.[32]In the course of the earlier part of his determination, the adjudicator appears to have relied on his experience in personal injury cases to conclude that the scarring was much too old to have been caused when the appellant says that it was caused.[33]In my judgment the medical reports to which I have referred give some indication that the scarring was consistent with being caused in the way alleged by the appellant, that the problems with his eye, again, were consistent with his account of what had been done to his eye and the fact, further, that he suffered from post traumatic stress is at least a possible explanation for the appellant's breakdown rather than as concluded by the adjudicator, that he realised that he had been telling inconsistent accounts.[34]In my judgment, if the adjudicator had approached the question of credibility, giving proper consideration to the medical reports that were sent to him after the conclusion of the hearing, and without forming a view about credibility before taking into consideration those matters to which I have referred in the report, it is possible, and I put it no higher than that, that he would have reached a different conclusion on credibility.[35]I say possible, because it is plain, looking from the adjudicator's conclusions, that there were a substantial number of other matters that gave rise to serious question marks about whether the appellant had indeed been telling the adjudicator the truth. Therefore, it may be that if there is the rehearing which, in my judgment, should take place before a different tribunal, it is still possible that the result may well be the same.[36]But, in my judgment, the error of law in this case was a material error and in fairness to the appellant his case should be reconsidered by a fresh tribunal. For my part, I would allow the appeal and remit the case accordingly.

LORD JUSTICE LAWS: I entirely agree. The appeal is therefore allowed.

ORDER

appeal allowed; appellant's costs of the appeal.

Cited in 2 later judgments