Mudarikwa v Secretary Of State For the Home Department

A tribunal is not required to accept psychiatric evidence at face value. It may assess its weight against the report’s methodology and the other evidence, including credibility findings. Fresh evidence obtained after the hearing cannot ordinarily be introduced to establish a ground of appeal. It may be relevant where it demonstrates that the tribunal misunderstood evidence that was before it, but not merely because it provides further support for the claim. In an asylum appeal, the assessment of Article 8 may require separate consideration from the question of persecution under the Refugee Convention. Conduct falling short of persecution may nevertheless raise a distinct Article 8 issue, particularly where the authorities’ attitude to homosexual persons is relevant.

The appellant, a Zimbabwean citizen, claimed asylum on arrival in the United Kingdom. He relied on his homosexuality, alleged ill-treatment, political activity for the Movement for Democratic Change, and a psychiatric report diagnosing post-traumatic stress disorder and depression.

The special adjudicator rejected much of his account but accepted that he was homosexual. The Immigration Appeal Tribunal upheld the approach to the medical evidence, credibility and country evidence. Permission to appeal was refused on paper by Brooke LJ. The appellant renewed the application, relying also on later medical reports and on Article 8 of the Convention.

The central issue was whether the tribunals had erred in their treatment of the medical evidence and whether they had adequately considered Article 8 separately from persecution under the Refugee Convention.

1. Application allowed on the Article 8 ground only. Permission to appeal was granted because the tribunals may not have separately considered whether removal could breach Article 8, as distinct from whether the appellant faced persecution under the Refugee Convention.

2. The tribunals were entitled to reject or attach limited weight to Dr Coleman’s psychiatric report. Medical evidence need not be accepted at face value. Its weight may be assessed by reference to the extent to which it merely recounts the claimant’s account, the clinical assessment undertaken, the tests used, the available medical history and the report’s explanation of the diagnostic basis. The tribunals were entitled to conclude that the report did not displace their adverse credibility findings.

3. Later medical reports did not provide a ground of appeal. Haile [2002] INLR 283 concerned fresh material demonstrating a possible mistake at the hearing, such as misunderstanding evidence already before the tribunal. It did not open the way for new evidence to be adduced simply to strengthen the claim. Later evidence could instead be put before the appropriate authorities.

4. The country evidence concerning homosexuality and the Movement for Democratic Change had been adequately addressed, and the court could not interfere with those factual assessments at the permission stage.

5. The fact that homosexuality was unlawful in the receiving country did not, by itself, prevent removal. However, following Z [2002] EWCA Civ 952, careful consideration was required of the authorities’ attitude towards homosexual persons. It remained open for fuller argument that conduct not amounting to persecution might nevertheless engage Article 8.

• Immigration Appeal Tribunal: upheld the special adjudicator’s treatment of credibility, medical evidence and country evidence.
• Court of Appeal (Civil Division): Brooke LJ refused permission on paper. Lord Justice Buxton, on renewal, allowed the application on the limited Article 8 ground and directed that the appeal be heard by two or three judges.