England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		9 February 2006

1. LORD JUSTICE MAY: This is an appeal for which Brooke LJ eventually gave limited leave, I think, from a decision of an immigration judge, Mr Ward, sitting in the Asylum and Immigration Tribunal. The immigration judge rejected the appellant's claims for asylum under the Refugee Convention and the Human Rights Convention. The hearing was on 2 June 2005, and the decision promulgated on 9 June 2005. There had been a previous decision of an adjudicator under the legislative arrangements in force before 4 April 2005, when the Asylum and Immigration Tribunal became operatively effective. The adjudicator's decision was promulgated on 28 December 2004; it was adverse to the appellant. She was given permission to appeal to the Immigration Appeal Tribunal, but this became a transitional case under the legislation establishing the Asylum and Immigration Tribunal. The proceedings before Mr Ward were by way of reconsideration, and he heard the evidence afresh. It will not therefore be necessary to recount much of the detail of the first adjudicator's 2004 decision, although some reference to these proceedings will be necessary.
2. The appellant, Mrs C, is from Turkey. She is Kurdish and of the Alevi faith. She was born in 1981. She is illiterate and does not speak English. She was married in 1997 and lived with her husband in a village called Sarit near the town of Antep. In 1999 they had their first child. Her account in brief was that two of her husband's brothers were arrested and disappeared some time before her marriage. After that, police, gendarmes, as they were referred to, regularly came to her home to question her husband as to his brothers' whereabouts. In January 2000 her husband disappeared, and thereafter she lived with her mother-in-law in Sarit. She said that she did not know where her husband had gone. Mrs C says that after her husband left, gendarmes came to her mother-in-law's house repeatedly to question her and her mother-in-law about her husband. Around June 2000 she and her mother-in-law were multiply raped by these men. After that she was on various occasions questioned and subjected to serious ill treatment, at home and in nearby Antep. In September or October 2000 she was again multiply raped by men she believed to be gendarmes. She says that after that she continued to be targeted by gendarmes and police but she did not give specific incidents in her evidence.
3. In September 2003 she was again taken for questioning in Antep, where she says the police threatened to kill her and her daughter. She did not feel that she could move to live with her parents as the authorities took an interest in them on the grounds of the activity of two of Mrs C's siblings, and she did not feel that moving to a different area altogether would solve the problem, as she would have to register with the local authorities. Her father therefore put her into contact with an agent who took her into the United Kingdom in a lorry. On arrival here in October 2003 she discovered that her husband was here also, with some of his family. She claimed asylum and has advanced her claim under the Refugee Convention and under the Human Rights Convention. She says that she has a well-founded fear of persecution for convention reasons if she has to return to Turkey, and she says that the United Kingdom would be in breach of its obligations under Articles 3 and 8 of the Human Rights Convention. She relied in particular here on psychiatric reports of a Dr Turner, who in short has expressed the opinion that she is suffering from post traumatic stress disorder as well as a major depressive order; that these are likely to be exacerbated if she returns to Turkey, and that she might then have a moderate risk of suicide.
4. The Secretary of State, in a letter refusing her asylum dated 29 December 2003, stated that it was not believed that Mr C had ever been involved in political activities or had ever been of interest to the Turkish authorities, nor that Mrs C had suffered frequent visits from the authorities, let alone rape. The letter is long and detailed and expresses comprehensive disbelief for most of the details of her claim. It is believed, the letter says, "that you have fabricated these events solely to enhance your claim for asylum". This belief is supported in the letter with reference to facts that Mrs C did not seek medical attention after the alleged rapes, did not move to a different area but stayed on with her mother-in-law, and stayed on in Turkey for over three years after her husband had left.
5. Dr Turner's first report of February 2004 noted that Mrs C's husband did not know about the rapes and that he must not find out. The one point to note about the hearing before the adjudicator in 2004 is that Mrs C's husband did not then give evidence. This is said by Miss Phelan, then appearing as her counsel, to have been because the then presenting officer disregarded an agreement made with the adjudicator that he would not cross-examine about the rapes. It is said that he did so cross-examine, and Mrs C decided that her husband should not be called because she feared that he would get to know of the rapes. It is not, I think, necessary to decide exactly what the true facts are here. We do not have a statement from the first presenting officer, but Miss Phelan's statement which we do have does not entirely accord with paragraph 7.8 of the adjudicator's determination, which states:

"Mr Otu [the presenting officer] then asked the appellant why she had not been able to prepare an audiotape to send to her parents. I then pointed out to Mr Otu that the evidence indicated that the appellant was illiterate. I had mentioned to Mr Otu before his cross-examination started that this cross- examination should be conducted in a manner appropriate to the appellant's condition of health as shown in the medical report amongst the appeal papers. Also during cross-examination I suggested to Mr Otu that I did not consider it appropriate to question the appellant about the physical attacks on her themselves."

6. It seems to me that it is intrinsically unlikely that Mr Otu would have agreed to ask no questions at all about the rapes, when the main issue was whether Mrs C's account, whose central part was the rapes, was or was not fabricated; equally intrinsically unlikely that Mr Otu went back on an agreement he had just made without protest from Miss Phelan or reference to it by the adjudicator. The important point, however, is that Mrs C did not want her husband to know about the rapes she said she had suffered. That would be entirely understandable, if indeed it were true that she had been multiply raped on more than one occasion.
7. So we come to the reconsideration by Mr Ward, who as I say heard all the evidence again. Mrs C's husband did not on this occasion attend; he was apparently signing on at the time. It was at one stage misunderstood that it was at this hearing that the presenting officer, this time Miss D'Souza, had agreed not to cross-examine about the rapes, but that was wrong; Miss Phelan cleared up that point in a second statement. Mr Ward did not believe Mrs C's account of what had happened to her in Turkey. He gave his reasons for this in seven long and detailed closely typed paragraphs, covering nearly four pages. He then gave detailed consideration to Mrs C's psychiatric condition, with reference to two reports from Dr Turner. Subject to three points raised as grounds of appeal, for which Brooke LJ may or may not have given permission to appeal because he could not see that they raised points of law, and to submissions a) that it was wrong to take adverse account of the fact that Mrs C's husband did not give evidence, and b) that the immigration judge's treatment of Dr Turner's evidence was wrong and incidentally unfair to Dr Turner, there is in my judgment, no proper basis for impugning, in this court, the immigration judge's comprehensive rejection of Mrs C's factual case.
8. I do not set out his reasons at length, but the grounds of appeal have to be seen against the background of a properly considered and cogently reasoned detailed assessment. The reasons, in brief, included a) that the judge did not believe that a person who had suffered multiple rapes and beatings would have stayed in the same place, that she and her mother-in-law would have moved somewhere else, and the rapes were said to have been in 2000, but she came to the United Kingdom in 2003; b) he did not believe that gendarmes would have been looking for her husband in the circumstances she described; c) it was inconceivable that Mrs C did not know that her husband was in the United Kingdom as she claimed; d) the explanation for her husband not attending to give evidence was not a reasonable one -- he had provided his statement.
9. As to Dr Turner's report, the immigration judge identified its limitations. The main ones were that Dr Turner had not at that stage seen Mrs C's medical records or counselling notes, and secondly that Dr Turner had taken a history from Mrs C including her account of the ill treatment, including rapes, that she had suffered in Turkey and had proceeded on the basis that it was true. Dr Turner had himself recognised the possibility that a tribunal court might find that it was untrue, because of course he knew the context in which he was asked to express a psychiatric opinion. He respected that in the context of the proceedings it was the tribunal's function, not his, to make that judgment; but he expressed the opinion that Mrs C's psychiatric state as he found it was consistent with the truth of her factual account. As I read the immigration judge's determination, with one exception the main limitations which he expressed were limitations which Dr Turner himself had expressly recognised. The exception concerns the medical records which Dr Turner had asked for, although he had not received them at that stage.
10. In a third report, written after the immigration judge's decision, Dr Turner complains, in my judgment at a personal level with justification, that the immigration judge wrongly made adverse findings not only about Mrs C's credibility but also about Dr Turner's credibility. The tone, and some of the detail of the immigration judge's discussion is, I think, critical, and I do not think that this was justified. However, I do not think that this takes Mrs C's case on appeal very far because, first, Dr Turner himself recognised limitations relevant to his opinion; some of these have been supplied since – see his third report – but the immigration judge did conclude that Mrs C's account was fabricated. Secondly, Dr Turner's opinion that his psychiatric diagnosis was consistent with Mrs C's account was relevant and the immigration judge noted it, but it was, as Dr Turner entirely recognised, the immigration judge's central function to assess credibility. Third, the immigration judge did proceed on the basis of Dr Turner's psychiatric findings, when it came to addressing the specifically human rights appeal to which it was especially relevant.
11. The grounds of appeal have gone through a number of modifications or shifts of emphasis. The main ground of appeal, and the only one which to my mind would raise a point of law, is that during the hearing before Mr Ward, Miss D'Souza, the Home Office presenting officer, made a concession that Mrs C may indeed have been raped; that the immigration judge intervened, in effect to suggest that the concession should be withdrawn; that the judge should not have done this, which was, among other things, contrary to the approach set out in the Asylum and Immigration Tribunal's gender guidelines. The particular part of the guidelines referred to is paragraph 5.40 to the effect that women may face additional problems in demonstrating that their claims are credible, information to support a woman's claim may not be readily available, and the nature of women's experiences and position in society may make it difficult or impossible to document their claim or provide evidence. Mr Maukherjee, who now appears on behalf of Mrs C, suggests, correctly in my view, that this alerts judges to the difficulties which women may have in producing corroborative evidence in cases such as this. The logical connection between that guidance and the inappropriateness of a judge suggesting, if indeed he did, that a concession might be withdrawn, is not so easy to see.
12. The Secretary of State does not accept that any such concession was made, or at least that no concession was made in the terms suggested, nor that the immigration judge urged Miss D'Souza to withdraw it.
13. The material available to this court to determine this point consists of three statements from Miss Phelan, a statement from Miss D'Souza, and the immigration judge's manuscript notes. In Miss Phelan's first statement, there is this paragraph:


"Mrs C gave oral evidence. During submissions, the Home Office Presenting Officer, Miss D'Souza, stated, 'it is entirely possible that this appellant was molested or sexually assaulted'. Before she could elaborate, the immigration judge intervened, pointing out that this was not SSHD's view and not in the reasons for refusal letter. He advised her to consider her position and withdraw that statement; she did so."

It is, I think, clear, that the words in inverted commas in that paragraph come from Miss Phelan's notes, and her third statement confirms, I think, that that is correct. In her second statement, Miss Phelan says this at Paragraph 7:

"At the second appeal before Mr Ward, Mr C was not present, although his statement was in the bundle. Mrs C was cross-examined about the rapes. It was after hearing her evidence, that the Presenting Officer, Miss D'Souza, in submissions, conceded that she may well have been raped or sexually assaulted. I felt that Mr Ward's intervention was inappropriate. By requesting her to consider her position, there was an inference that Miss D'Souza was in the wrong to make such a concession. I did not think it appropriate that Mr Ward should advise her to withdraw the concession."

This is not the same as the first statement. The first statement had the words "molested or sexually assaulted"; in the second that has become "raped or sexually assaulted".

14. Then there is Miss D'Souza's statement, which materially reads as follows:

"My recollection is that I started my submissions by asking the immigration judge to make adverse credibility findings against the appellant, who I believed had fabricated her asylum claim. I further attempted to make an argument in the alternative by asserting that it was possible that the appellant could have been molested, however, if that were the case then it was purely because she was in a vulnerable position as a woman living without the protection of a man, in a lonely rural area, and not because she was targeted due to her husband's political activities as claimed.

"The immigration judge did interrupt my submissions, but as I recall, it was to challenge me into making a stand as to whether or not I accepted that the appellant had in fact been raped as alleged. When faced with this choice I clarified that my position was that I did not accept that the rapes had taken place as claimed.

"I would like to add that I do not recall Miss Phelan raised any objections during the discussion between Mr Ward and myself, nor as I recall did she express any concerns regarding this issue in he own submissions.

"I would like to state that I did not believe I was making any concessions, nor do I believe that I was pressurised by Mr Ward into doing anything except clarify my position."

So on that version, no concession and no pressure to withdraw from the immigration judge; an alternative submission which referred to a possibility of molestation, but not rape; and no objection from Miss Phelan.

15. And then in Miss Phelan's third statement, we have this:

"I have checked my note from the hearing. I did not keep a complete note of submissions, but my note records: HO - entirely possible that a molested or sex. assaulted. This is similar to Mr Ward's note at the top of p.13 of the Record of Proceedings.

"I do not recall that Miss D'Souza making this concession as an alternative argument. Having seen the Record of Proceedings I do now recall that she accepted that the gendarmes or people who harassed her were doing so because she was vulnerable.

"My recollection of Mr Ward's intervention is not dissimilar to Miss D'Souza's, save that I recall, and my note confirms, that Mr Ward asserted that this was not the Secretary of State's view. My firm recollection is that he then advised her to consider her position and withdraw that statement.

"I do not recall that Miss D'Souza clarified her position, save that she did withdraw the concession that Mrs C had been raped."

Again there is a shift, from "molested or sexually assaulted" in her note to "rape" in the final sentence. I just pause there to say that Mr Maukherjee has submitted that in the context of this case, where the main evidence of this kind was of rape, that molestation or sexual assault would have been understood in the context as referring to rape.

16. We then come finally to the manuscript notes of the immigration judge himself. To my mind these are quite clear as to the shape of Miss D'Souza's submission. The notes begin, indicating that these were Miss D'Souza's submissions, with these three lines:

"Rely on RFRI" [plainly a reference to the Secretary of State's refusal letter].

"Adverse credibility finding" [that actually says "adverse cred finding"]

"Fabricated claim"

That, in my view, shows quite clearly that Miss D'Souza's position in submission was that this was a fabricated claim. Further down the same page we have these three notes:

"More likely gendarmes or people who harassed her doing so because she was vulnerable.

"Possible App has been molested in the past.

"Highly unlikely she would have remained in a vulnerable position."

Those notes are, in my view, consistent with although not in exactly the same words as Miss D'Souza's account of what she recalls doing.

17. The first of the groups of notes to which I have referred, in my judgment shows quite clearly that Miss D'Souza's first and main case in submission was that this was a fabricated claim. The second, although it is not noted as an alternative, looks as if it corresponds with Miss Phelan's note but it is not a concession as to rape, nor anything beyond harassment or molestation. The immigration judge's note is further consistent with Miss D'Souza's statement that Miss Phelan did not complain at the time and did not, when it came to her turn to make submissions, rely on the concession which it is now said was made and withdrawn. It seems to me to be intrinsically unlikely that if there had been a concession such as is now suggested, that Miss Phelan would not have grasped it and put it forward as part of her submission.
18. It is in these circumstances entirely clear to me that Miss D'Souza's recollection, which accords with the immigration judge's note, is correct and, so far as they differ, that Miss Phelan's recollection is not. Miss D'Souza made no concession as to rape and no concession which she was invited to withdraw. The main submission was and remained that the factual claim was fabricated. It is not in the round at all surprising that Miss D'Souza firmly maintained the case of fabrication made in the refusal letter; it would have been surprising if she had not. For these reasons in my judgment the factual underlay for this ground of appeal falls away, and it is not necessary to consider what the position in law would have been if it had been established.
19. Mr Maukherjee's supplementary skeleton refers to a number of other matters or errors in the immigration judge's determination. It was at one stage suggested that the immigration judge should not have relied adversely on the fact that Mr C's husband did not attend to give evidence. Reliance was placed in part on what was said to have been the undertaking not to cross-examine about the rapes by the presenting officer at the hearing before the first adjudicator. I have already indicated scepticism as to whether there was such an undertaking; it does not appear to have been relied on at the hearing before Mr Ward. Mr Ward does refer to Mrs C's explanation that she did not want her husband to give evidence because he might find out about the rapes. I do not consider that Mr Ward was disentitled from regarding the explanation for the husband not attending as unreasonable. Mr Maukherjee does not now rely on this point, and it was in any event not an error of law.
20. Mrs C, through Mr Maukherjee, relies on what are said to be two errors of fact. First, that the immigration judge was mistaken in finding that she did not tell her parents about the rapes and other serious treatment from the authorities when they were looking for her husband, and second that he did not properly consider evidence from Mrs C about why she did not move to Antep or to her parents' home. These are, in my view, relatively small matters which do not impact on the immigration judge's main findings. I am not convinced that the first criticism is made out from a comparison of paragraph 31 of the immigration judge's determination with paragraph 17 to 20 of Mrs C's statement, where she says that her father did not know of the rape and the trauma that she had been going through. As to the second, the submission, I think, goes little further than the immigration judge not accepting parts of the evidence and not believing the reasons given. There is, in my judgment, no basis for supposing that this evidence was not taken into account, although eventually the immigration judge rejected it. His reasons for doing so in the round are sufficient. These points, in my judgment, are not errors of law by any version of authority as to how points which start off as points of fact might in certain circumstances amount to errors of law.
21. It is then said that the immigration judge did not give sufficient weight to the two reports of Dr Turner. I have already expressed concern about the tone and some of the content of the immigration judge's discussion of Dr Turner's report. As Dr Turner himself acknowledged, it was not his function to judge the truthfulness of the factual account which Mrs C gave. It was relevant that, in his opinion, her psychiatric state was consistent with her factual account; beyond that he could not go. The judge did take the reports into account in relation to his factual decision. What he said in paragraph 34 of his determination was this:

"It seems to me that Dr Turner's report has the limitations which I have identified. In my opinion looking at all of the evidence including the medical evidence I am still not satisfied that the appellant was raped and attempted suicide whilst in Turkey."

22. Further, the judge did accept Dr Turner's psychiatric conclusions as to post traumatic stress disorder and depression and suicide risk. These were mainly relevant in the event that the immigration judge rejected the main factual basis for the claim under the Refugee Convention to Mrs C's claim under the Human Rights Convention. The bones of this claim were that there would be violations of Articles 3 or 8 of the Convention if she were to return to Turkey because a) her psychiatric condition would become worse; b) psychiatric treatment in Turkey would not be as readily available as in the United Kingdom (I observe that no real attempt was made to establish this to any degree that would on the authorities be the standard required for Article 8 let alone Article 3); c) her children would be affected; d) she would be separated from her husband. The last two of these were unpersuasive, since her husband's claim for asylum has also failed and the immigration judge reckoned that he too would be returning to Turkey.
23. Dr Turner's third report, having seen the medical records, revises his opinion as to Mrs C's risk of suicide in the light of an attempted suicide in April 2004 when she was six and a half months pregnant. That, however, was not before the immigration judge, and we are concerned with whether the immigration judge made an error of law.
24. The immigration judge assessed the risk of suicide in the light of Dr Turner's report and of the fact that he had rejected Mrs C's factual account. He did not consider that there was a real risk of suicide. He said at paragraph 43 of his determination:

"On the medical evidence before me I do not consider that there is a real risk of the appellant trying to kill herself on return to Turkey. The best Dr Turner can say is that the appellant does not have a high suicide risk in the UK but that such a risk would increase if she were to be returned. He says that she might then have a moderate suicide risk. I do not consider that risk is significantly greater than the current risk which Dr Turner speaks of even if I had accepted what the appellant has stated was the truth. Furthermore there is evidence that there are medical services in Turkey for the treatment of mental illness."

As to the disruption of family life, the immigration judge said at Paragraph 42:

"I do not therefore consider that it would be disproportionate to return the appellant. I do not consider she is an exceptional case as was stated in the case of Huang & Others. She can of course access the medical services in Turkey for her PTSD if indeed she is suffering from that."

25. In my judgment these were judgments which the immigration judge was entitled to make on the evidence and they display no error of law, in particular no error as to the high standard which has to be reached if there is to be found a violation of Article 8, let alone Article 3. It is not necessary to lengthen this judgment by quoting in detail from the House of Lords decision in Rasgar [2004] UKHL 27. That was, as Mr Maukherjee has rightly said, a decision as to admissibility and not an eventual decision on the merits. Lord Bingham, in defining the first question that arose on that appeal to the House of Lords, expressed the question of principle in these terms:

"Can the rights protected by Article 8 be engaged by the foreseeable consequences for health or welfare of removal from the United Kingdom pursuant to an immigration decision, where such removal does not violate Article 3."

and his answer after discussion to that question appears at Paragraph 10 of his judgment in these terms:

"I would answer the question of principle in paragraph 1 above by holding that the rights protected under Article 8 can be engaged by the foreseeable consequences for health and removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate Article 3, if the facts relied on by the applicant are sufficiently strong. In so answering I make no reference to "welfare", a matter to which no argument was directed."

26. It would seem plain that as with medical treatments, so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage, as compared with the expelling state. Whilst of course that addresses in the first instance the question of relative advantage and disadvantage of medical treatment in two different states, it also shows that a high standard has to be achieved if it is suggested removal from the United Kingdom will itself seriously make worse a condition which has been diagnosed here. I note that in paragraph 32 of his judgment Lord Walker of Gestingthorpe, who took a rather different view on some points, said that he respectfully agreed with Lord Bingham's observations in paragraph 10 that where the appellant's case is based on his need for medical treatment or his welfare, he could never hope to resist expulsion without showing "something very much more extreme than relative disadvantage (as between the deporting state and the receiving state)".
27. In summary therefore, in my judgment the immigration judge's decision here as to the human rights claim is not impugned by the points which Mr Maukherjee has raised. For these reasons I would dismiss this appeal.
28. LORD JUSTICE LATHAM : I agree
29. LORD JUSTICE LONGMORE : I agree also

Order: Appeal dismissed.