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 UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2
		3 October 2013

1. LORD JUSTICE RICHARDS: This is a renewed application for permission to appeal against a determination of Deputy Upper Tribunal Judge Woodcraft sitting in the Upper Tribunal Immigration and Asylum Chamber by which, after a de novo hearing, he dismissed the applicant's asylum, humanitarian protection and human rights appeals. The applicant is a Jamaican national who entered the United Kingdom on a false passport and subsequently claimed asylum on the basis that he feared persecution in Jamaica (1) at the hands of state actors, as a witness to extrajudicial killings by the security forces, and (2) by a gang of organised criminals, as a perceived informant resulting from his early release following arrest by the security forces.
2. I will not attempt to summarise the detailed facts as set out in the Upper Tribunal's determination, nor the detailed analysis leading to the judge's conclusion.
3. On the applicant's behalf Mr Jesurum has argued strenuously and in detail that the judge erred in law in reaching the conclusion he did. I will take the matters raised in the order in which they are developed in the written grounds.
4. Grounds 1 and 2 relate to the asylum interview record which the applicant challenged in terms of legibility, accuracy and completeness. The case had previously been adjourned to allow the Secretary of State to provide a legible typed copy of the handwritten interview record but that had not been done, so the judge ruled that the Secretary of State could rely only on the passages that were legible. The applicant had also applied more than once for an adjournment to allow the interviewing officer to attend to give evidence. I am told that one such application was a joint application made to Deputy Upper Tribunal Judge Woodcraft himself. He refused that adjournment. Nevertheless in his eventual determination he relied to some extent on the asylum interview, in particular on discrepancies between that and subsequent statements by the applicant.
5. Mr Jesurum does not say it was necessarily of itself an error of law to refuse the requested adjournment, but does submit that it was wrong for any reliance to be placed on the interview record in the circumstances. He says that the applicant was deprived of the opportunity of putting the accuracy and completeness of the record to the person who made it and in effect that the reliance placed on the record was unfair. He also criticises the specific use that the judge made of some of the material.
6. It seems to me that it was within the proper discretion of the judge to refuse an adjournment for the interviewing officer to attend to give evidence and that it was also open to him, having refused that adjournment, nevertheless to rely on the legible parts of the record. It was of course necessary and important to take into account the applicant's challenge to the accuracy of some of what was attributed to him and, to the extent that it arose, to the completeness of the record. But the judge plainly did take the applicant's challenge carefully into account. For example, in paragraph 50 he refers to the applicant's denial that he had said in interview that he saw six people being killed. The judge observes that not only was his answer recorded to that effect, but a question quoting that figure was then put to him in terms and he responded to it. So if he had not said that he saw six people being killed, he had, as the judge put it, at least two opportunities in the interview to make it clear that he had not said it and it was not his case. In my view, the judge's approach to this was a rational one and it seems to me that the judge was entitled to place the weight he did on the record. Overall, I am not persuaded that there is a real prospect of establishing that the procedure adopted was unfair or that the use made of the interview record was unfair or unlawful.
7. Ground 3 contends that there was a failure by the judge to consider various points of evidence, in particular the background evidence, and to weigh the applicant's account against the relevant evidence. It is submitted that the judge made the same error as caused the original determination of the First Tier Tribunal to be set aside and the appeal to be heard de novo in the Upper Tribunal.
8. In support of this ground, Mr Jesurum has identified various points to which the Upper Tribunal's determination makes no reference and which it is said were not taken into account or were taken insufficiently into account. He has referred in particular to a document identifying the applicant's address as the one he claimed to occupy at the material time. He describes this as a critical document and says it is one on which no finding is made by the judge. He has also pointed to various other pieces of evidence in support of the applicant's case. He submits that the judge failed to assess whether there was a reasonable degree of likelihood that the applicant, living where he did, became caught up in the relevant events as he said he did. He has taken me to a number of specific documents, each of which he describes as critical and as not being the subject of findings by the judge, which tend to support the applicant's account.
9. The judge states in paragraph 47 that he has considered all the evidence in the round. His actual analysis is relatively detailed, although understandably he does not cover every point. He deals in the determination both with the applicant's general lack of credibility and with the specific reasons why he does not believe the applicant's claim to have been involved in the events to which the background evidence refers. It seems to me that he says enough both about the witness statements and about the background material to show that he had them well in mind.
10. I take the view that many of the points made by Mr Jesurum -- and made by him at some length -- go more to the merits of the judge's conclusion than to the existence of any arguable error of law and that they are not points that can therefore expect to be persuasive in this court. In so far as they amount, as perhaps they do, to a disguised challenge to the rationality of the judge's conclusion on credibility, in my view they do not have any real prospect of success, given the high threshold to be got over in establishing an irrationality challenge. They do not in my view establish any other legal error.
11. Ground 4 is a contention that the judge failed to take into account the medical evidence, or at least that he wrongly rejected the medical evidence relating to a diagnosis of PTSD. It is submitted in particular that it was an error of law to reject the medical evidence on the basis of a compartmentalised credibility finding and to fail to take it into account when assessing the significance to be attached to what the applicant said in interview, assuming the judge found, as he did, that the record of the interview was accurate.
12. That the judge took the medical evidence into account is clear enough from paragraph 52 of his determination, where he states that neither of the doctors had considered the impact on the applicant's general state of mind of various events over the years other than the alleged event on which the asylum claim was based. He states in particular that Professor Katona could reasonably have been expected to analyse any possible alternatives for what may have caused or had an influence on the applicant's symptoms, but the Professor had not done so. In the result the judge accepted that the applicant had some form of psychological difficulties but did not accept that that of itself confirmed the account which the applicant had given.
13. I do not think, and it does not appear to be submitted, that the judge's treatment of the medical evidence was arguably irrational. The contention that he adopted an erroneously compartmentalised approach of the kind criticised in Mibanga [2005] EWCA Civ 367 seems to me to be unsustainable. The judge plainly looked at the medical evidence as part and parcel of his overall assessment of credibility.
14. Ground 5 relates to that part of the judge's analysis in which he took into account in reaching his credibility finding the fact that the applicant sought to gain entry into the United Kingdom by the use of a false British passport. It is submitted that the judge failed to consider whether the deception perpetrated, that the applicant was a British citizen, was advanced to bolster an otherwise true claim and in particular was perpetrated because the applicant was acting in fear in seeking to avail himself of this route to safety. It is submitted that it was incumbent on the judge to give himself a Lucas direction or at least to apply the approach in Lucas as set out in MA (Somalia) [2010] UKSC 49.
15. A similar point is advanced, although I did not detect it so clearly in the grounds, in relation to the adverse inference drawn by the judge from the discrepancies between the interview record and subsequent statements by the applicant.
16. As Sir Richard Buxton observed in his reasons for refusing permission on the papers, the judge explained in some detail in paragraph 53 why the applicant's own explanation for the deception was implausible. The judge did not therefore commit the error warned against in Lucas of relying without further consideration on a person's dishonesty. I do not accept that the judge arguably needed to do more than he did in order to avoid the problem identified in Lucas. Sir Richard went on to say that Lucas applies in any event only to a case where there may be an alternative explanation for dishonest testimony, not a case where (as here) the applicant's conduct has been serially dishonest. In his written submissions Mr Jesurum seized on this as an important point of principle meriting the grant of permission, but in my judgment it does not strictly arise and I think that that was rightly accepted today by Mr Jesurum himself.
17. In any event, I agree with Sir Richard's primary reason that there was no failure by the judge to commit the error warned against in Lucas. He gave proper consideration to the possibility of an alternative explanation, indeed to the actual alternative explanation advanced, for A's dishonest conduct. More generally as to the basis of the adverse credibility finding, I am satisfied that the judge took into account all the matters advanced by the applicant and again did not fall into any trap of the Lucas kind.
18. Ground 6 relates to the judge's finding of sufficiency of protection and, as is accepted, does not arise if the judge's rejection of the applicant's case as to fear of persecution is upheld.
19. Ground 7 concerning article 8 is not pursued.
20. I have given brief reasons why I do not consider that the primary grounds, that is to say grounds 1 to 5, have any real prospect of success. I should add that even if I am wrong in relation to the arguability of some of the criticisms of the judge's analysis, I do not accept that there is sufficient in this case to meet the second appeal criteria. In saying that I make appropriate allowance for the fact that this was a de novo determination by the Upper Tribunal and also of the consequences for the applicant if his fear is indeed well founded in one respect or the other and the Upper Tribunal's contrary conclusion was wrong.
21. For all those reasons, the renewed application for permission is refused.