LE (Democratic Republic of Congo) v Secretary of State for the Home Department

In an asylum or human-rights appeal, expert evidence is not necessarily decisive merely because the witness has relevant professional expertise. A tribunal may treat a diagnosis with caution where its basis is unexplained and depends on accepting an account of events which the tribunal has rejected. The issue whether a community psychiatric nurse is qualified to diagnose post-traumatic stress disorder should not be decided where it is unnecessary to the outcome. A tribunal must focus on the actual risk on return and may take account of psychological effects caused by an applicant’s fears. Where the evidence was not properly explained or tested before the specialist tribunal, an appellate court should not remit the case simply to obtain a ruling on an abstract point of qualification.

The appellant, a citizen of the Democratic Republic of Congo, appealed against the Asylum and Immigration Tribunal’s dismissal of her appeal from an adjudicator and the Secretary of State’s refusal of her asylum and related human-rights claims. The claims included risks to her son, A, arising from sickle-cell anaemia, alleged psychological harm and possible suicide on return.

The tribunal rejected the appellant’s account of past persecution and treated with great caution evidence from a community nurse specialist who had described A as displaying post-traumatic-stress behaviours. Permission to appeal was granted on the question whether such a nurse was qualified to diagnose post-traumatic stress disorder. The central issue was whether the tribunal had erred in law by treating that evidence with caution and by dismissing the Article 3 and Article 8 claims.

1. Appeal dismissed. The tribunal made no error of law, and there was no basis for remitting the case for further reconsideration.
2. The tribunal had not ruled that the nurse’s evidence was inadmissible. It was entitled to treat the diagnosis with caution because the report did not explain the basis of the diagnosis, for example by reference to relevant guidelines, and because the diagnosis depended on accepting the appellant’s and A’s accounts of traumatic events.
3. Once the tribunal rejected the account of past trauma and the asserted risk that the family would be separated on return, the premise of the diagnosis had disappeared. That provided a compelling reason for caution, regardless of whether the nurse was professionally qualified to diagnose post-traumatic stress disorder.
4. The court correctly held that the tribunal focused on the risk to A on return and applied J v Secretary of State for the Home Department [2005] EWCA Civ 629. The tribunal was entitled to consider whether A’s mental health was being affected by what the appellant had told him as part of the Article 3 assessment.
5. The court declined to decide the general qualification point. Evidence of the kind produced after the tribunal hearing should be placed before the specialist decision-maker and, if necessary, tested by cross-examination. That had not occurred here, so the point did not arise.

The court’s observations did not criticise the medical support given to the family. Healthcare professionals were not responsible for assessing the merits of asylum and related human-rights claims.

• Court of Appeal (Civil Division): Appeal from the Asylum and Immigration Tribunal dismissed. The tribunal had dismissed the appellant’s appeal from an adjudicator, who had dismissed her appeal against the Secretary of State’s refusal of her asylum and related human-rights claims.