YL (Rely on SEF) China [2004] UKIAT 00145 (08 June 2004) [2004] UKIAT 00145

UKIAT
YL (Rely on SEF) China [2004] UKIAT 00145 (08 June 2004)
[2004] UKIAT 00145 · 2004-06-08
[1]APPEAL No. YL ( Rely on SEF ) China [2004] UKIAT 00145 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 15 April 2004 Date Determination notified: 08 June 2004 Before Mr J Perkins (Vice President) Miss J M Braybrook Mr A Smith Between Secretary Of State For The Home Department Appellant and YL RESPONDENT For the appellant: x For the respondent x DETERMINATION AND REASONS Before us, the appellant, hereinafter 'the Secretary of State' was represented by Mr D. Saville, a Home Office Presenting Officer, and the respondent, hereinafter the claimant, was represented Mr M. Kraehling-Smith of Counsel, instructed by McLaughlin & Co. Solicitors.[2]The claimant is a citizen of China. She was born on 25 October 1965 and so is now thirty-seven years old. In a determination promulgated on 28 August 2003 an Adjudicator, Mr George Jamieson, sitting at Belfast, allowed her appeal against the decision of the Secretary of State that she was not entitled to refugee status and that removing her was not contrary to her rights under the European Convention on Human Rights. It is against that decision that the Secretary of State now appeals.[3]The grounds of appeal essentially make two points. They complain that the Adjudicator wrongly attached weight to a medical report that, properly understood, had no relevance and the Adjudicator misunderstood the significance of the form SEF, that is the form to be completed by the appellant issued to a person after she claimed asylum.[4]In essence it was the claimant's case that she practised Falon Gong and had incurred the wrath of the Chinese authorities as a result. In particular she claimed that she had been severely tortured by the Chinese authorities who used a distinctive and, in our experience at least, unusual method. It is said that they put a chemical agent inside a jacket and then required the claimant to wear the jacket whilst standing under the hot sun. This caused the chemical agent to react with her skin leaving her with blister-like burn marks over her body and groin.[5]There was some medical evidence from a Dr Martin Emmanuel, a general medical practitioner practising from an address on the Falls Road in Belfast. In an undated report to the claimant's solicitors Dr Emmanuel reported scarring and hypo-pigmentation and other problems on the claimant's body and said that he had transmitted photographs to a Dr Virginia Murray who is a consultant in toxicology at Guy's Hospital in London. Those were sent 'For an opinion on what agent may have been used, in the powder'.[6]The Adjudicator concluded that the claimant had indeed been tortured in the way that she described. He dealt with this at paragraph 15 of his determination where he also considered the medical report. The Adjudicator said 'It is one of the deficiencies of the medical report that it is unable to state whether a toxic agent was used, resulting in the appellant's burns, but I attach some weight to the fact that the doctor has transmitted the appellant's photos to a toxicologist in London 'for an opinion of what agent may have been used, in the powder, and await her opinion'.[7]With the help of both advocates we have looked very carefully at this passage in an effort to ascertain the Adjudicator's intended meaning. The Adjudicator did, in his words, 'attach some weight' to the fact that the medical practitioner had sent the photographs to a toxicologist. We have read the medical report several times but it is quite plain to us that the general medical practitioner did not know what had caused the injuries that he had seen and he did not form the view that the injuries were in fact caused by a powder, whether administered in the circumstances described by the claimant or at all. The general medical practitioner had decided that the suggestion that the injuries were caused by a powder was one that he could not assess properly on the limited material before him and he asked for the help of a toxicologist. This is not at all the same as the medical practitioner saying that he accepted that it was reasonably likely that the injuries had been caused by chemicals, still less in the circumstances that the claimant described. No weight whatsoever should have been attached to the fact that he sent photographs to a toxicologist. The general medical practitioner's letter is not any kind of medical or other expert opinion that the injury was caused by chemical agents. All the general medical practitioner did was recognise that as a possibility that he wanted investigated further.[8]We do not know how much weight the Adjudicator attached to this. His reference to 'some weight' might be thought, colloquially, to mean "some but not very much" although in fact the word "some" does not necessarily have that meaning. It may have been his view that a lot of weight should have been attached to it. We do not know. It is quite clear to us that the Adjudicator should not have attached any weight whatsoever to the fact that the general medical practitioner had sent photographs to a toxicologist. It is also plain that he did attach some weight and that weight was instrumental in his reaching the conclusion that the claimant was telling the truth about her injuries.[9]Mr Kraehling-Smith invited us to say that the Adjudicator was entitled to reach the conclusion that he did on the claimant's oral evidence alone and so we should not conclude that the Adjudicator was wrong because he gave some weight to the medical evidence. The problem with that argument is that the Adjudicator did not reach the decision that he did on the oral evidence alone. He reached it after giving some weight to something to which he should have given no weight. With great respect the Adjudicator was wrong. The reasons he gives to support his conclusion that the claimant was injured as she describes are inadequate. This finding on our part seriously undermines the confidence we can have in the determination.[10]Additionally the Adjudicator misunderstood the significance of the form SEF. The Adjudicator noted that there were inconsistencies between points made in the form SEF and the claimant's later oral evidence, whether given to the Adjudicator or to an interviewing officer. The Adjudicator was not concerned about these inconsistencies. He said in paragraph 12 of his determination the appellant "may well have signed this document but it was prepared by her solicitor and the purpose of her SEF was to give some general indication of the [the claimant's] asylum claim". That is not the purpose of the SEF, or more accurately, the "Statement of Evidence Form –SEF Self Completion –." The purpose of the form SEF is explained on the form SEF. The printed rubric at the top of the form says 'You should use this part of the form to tell the Secretary of State why you qualify for asylum in the United Kingdom.' There is a declaration at the end of the form. It is in very clear terms. The declaration says 'You must now read the declaration at 1 below and sign it. You are personally responsible for the accuracy of the statements contained in this form, and the declaration must be signed by you and not by any other person, including your representative.' It then sets out how a minor should complete the form.[11]The declaration is in these terms:
'I hereby apply for asylum in the United Kingdom. The information I have given is complete and is true to the best of my knowledge. I am aware that making a false statement or any representation may constitute an offence or to the immigration legislation.'
[12]The point is emphasised under the heading 'Part D – Further Information'. This says:
'If there is anything else which you think may be relevant to your application for asylum and which you have not mentioned elsewhere on this form, please give details below, using additional sheets where necessary.'
Then the following words are underlined:
'you should mention any compassionate circumstances or humanitarian reasons why you should not be removed from the United Kingdom should your application for asylum be refused.'
[13]The following words also appear:
'Providing all relevant information at this stage will greatly assist us in considering your claim. If you do not mention information relating to you claim, of which you are aware at this stage, but you seek to rely on that information later, there is a possibility that that information may not be believed.'
[14]As is usually the case, the appellant was invited to attend for an interview and did attend. Standard forms have been prepared to assist the interviewer. An indication of the importance that the Secretary of State attaches to the form SEF is apparent at the start of the interview. The following words were read to the claimant who was required to sign a note to say that she understood what had been explained to her. This included the following statement:
'I have read all the information in the Statement of Evidence Form you sent us. There is no need for you to repeat this information today. This interview gives me the opportunity to ask you for some further details on the information form. You will also have the opportunity to add to, amend, or clarify the information which you provided on the form.'
[15]Then, at the start for the interview itself, two questions were asked. These questions were printed to assist the interviewing officer to ask them properly. Question 1 is in these terms 'Who completed the Statement of Evidence Form which you submitted in support of your asylum claim.' Question 2 is in this form:
'Are you fully aware of its contents and are you satisfied that it fully explains the reasons why you are claiming asylum.'
In answer to the first question the claimant indicated that her solicitor had helped her and to the second question she answered unequivocally with the word 'Yes'.[16]The Secretary of State argues that it is not satisfactory for the Adjudicator to brush aside inconsistencies in the way that he has and, despite Mr Kraehling-Smith's best endeavours, we find that we agree with the Secretary of State.[17]It is right to say that the claimant has given her evidence in a consistent way after the form SEF. This is something that the Adjudicator was entitled to consider and, if he was so minded, something to which he could give considerable weight. However, there are inconsistencies that have to be explained and it not satisfactory for the Adjudicator to explain them in the way that he did. At the very least there should have been a proper explanation for his decision not to attach any weight to the answers given in the form SEF.[18]The grant of permission to appeal to the Tribunal included the phrase 'The Tribunal may wish to give some guidance on the significance of discrepancies between an SEF and oral evidence and in particular the function of and weight to be attached to the SEF.' We have decided to do that.[19]When a person seeks asylum in the United Kingdom he is usually made the subject of a 'screening interview' (called, perhaps rather confusingly a "Statement of Evidence Form – SEF Screening–). The purpose of that is to establish the general nature of the claimant's case so that the Home Office official can decide how best to process it. It is concerned with the country of origin, means of travel, circumstances of arrival in the United Kingdom, preferred language and other matters that might help the Secretary of State understand the case. Asylum seekers are still expected to tell the truth and answers given in screening interviews can be compared fairly with answers given later. However, it has to be remembered that a screening interview is not done to establish in detail the reasons a person gives to support her claim for asylum. It would not normally be appropriate for the Secretary of State to ask supplementary questions or to entertain elaborate answers and an inaccurate summary by an interviewing officer at that stage would be excusable. Further the screening interview may well be conducted when the asylum seeker is tired after a long journey. These things have to be considered when any inconsistencies between the screening interview and the later case are evaluated.[20]The Statement of Evidence Form –SEF Self Completion – (that is the "SEF" that the adjudicator considered) is an entirely different document. As has been explained above, it is the appellant's opportunity to set out his case. The asylum seeker has to return the form by a specified date, usually about a fortnight after the form is given to him. However the asylum seeker is allowed to choose his own interpreter and obtain all the assistance he wants in order to complete the form. He is in control of how the form is answered. It is hard to imagine a fairer way to enable the claimant to set out his case. That being so, the Secretary of State, and if it comes before him, an Adjudicator, is entitled to assume that it is right.[21]It is one of the core functions of legal representatives to take a client's instructions and faithfully reproduce them in an orderly and intelligible form. That can be a difficult and time consuming job but it is something that legal representatives really should get right.[22]We recognise, of course, that sometimes mistakes will be made and sometimes, for whatever reason, claimants will withhold information until a later stage or will answer questions inaccurately or downright untruthfully. However, the starting point must be that the form SEF is a complete and accurate statement of a case. If it is not, and the asylum seeker has been advised properly, he will say so at the first possible opportunity so that complaints can be investigated and put right. If an error has been made by solicitors then the Secretary of State, or the Adjudicator, can expect to see evidence from the solicitor concerned explaining how the mistake came to be made and exhibiting any notes or instructions in support. It is hard to see why a claimant who had been let down in this way would not waive any privilege that prevented proper instructions being disclosed. Solicitors who carelessly set out a claimant's case can be expected to be reported to their professional body.[23]If an application is refused and a person appeals to an Adjudicator, there will be a direction that the claimant prepares a full witness statement. The very least that this must do is confirm the contents of the form SEF or explain thoroughly its deficiencies. Of course, if this is not done and points have to be made an Adjudicator may permit them to be made in oral evidence or they may emerge in cross-examination but a competent representative will deal with them before that stage and, in the absence of a proper explanation, an Adjudicator should be very slow to believe evidence introduced at a late stage.[24]I hope it is clear from the above that it is the view of the Tribunal that forms SEF must be completed carefully and accurately and the Secretary of State and the Adjudicator is entitled to assume that this has been done. If, for any reason, it is not the case then it is incumbent upon the asylum seeker to give a full and proper explanation for any deficiency at an early stage. The case has been reported so that this can be made clear.[25]It may be that there are perfectly proper reasons for the inconsistencies in this case. We do not know what they are and it is plain to us that the Adjudicator has not given proper weight to the contents of the form SEF. It is also plain us that this has affected the reliability of his credibility findings as a whole.[26]We are sorry it has been necessary to criticise the Adjudicator in this way. It is not intended to attack the determination as a whole, which in many ways was a properly structured and careful document, but it does contain these two errors which we find are sufficient taken together, and, at least in the case of the misunderstanding of the SEF, on its own, to make the determination unreliable. The only way that this can be remedied is for the case to be heard again.[27]In the circumstances we allow the Secretary of State's appeal to the extent that we direct that it be heard again by an Adjudicator other than Mr Jamieson. Jonathan Perkins Vice President[15]April 2004