FS (Iraq) v Secretary of State for the Home Department

A tribunal may refuse an adjournment where existing evidence and the hearing itself enable it to assess whether a vulnerable witness understands the proceedings and can give a coherent account. Demeanour may be considered for that limited purpose, but not as a measure of credibility. A psychiatric expert may address medical reasons affecting reliability, but cannot decide whether particular assertions are truthful. Further evidence is unnecessary where the tribunal has accepted the relevant facts and existing reports adequately address the issues. The Article 3 threshold is high: accepted gibes and taunts fell well short of treatment engaging Article 3.

FS appealed to the Asylum and Immigration Tribunal against an Immigration Judge’s determination dismissing his claim that removal to Iraq would breach Article 3. The claim relied on his physical disability, mild to moderate mental retardation, alleged social isolation, past attacks and the adequacy of family support.

The Tribunal upheld the refusal of adjournments sought for further psychiatric, medical and sociological evidence. On a renewed application for permission to appeal, the central issue was whether refusing those adjournments caused material unfairness, particularly in relation to credibility and the presentation of the evidence.

1. Application refused. There was no arguable error of law in refusing the adjournments.
2. FS was a vulnerable witness and the need for appropriate assistance was important. A failure to provide assistance which prevented a party from putting forward his best account could create an Article 6 difficulty. However, the Immigration Judge was entitled to begin hearing the evidence and assess whether FS understood the proceedings and could participate fairly. The judge found that he gave a coherent and ordered account. His reference to demeanour was confined to that assessment and was not used to determine credibility.
3. A further psychiatric assessment of credibility was not required. An expert could comment on general reliability only where there was a medical basis for concern. It was for the adjudicator to decide whether particular assertions were truthful and which parts of the evidence should be accepted. The existing psychiatric report also provided no indication of an ascertainable current suicide risk requiring further assessment.
4. Further medical evidence was unnecessary because the judge accepted the obvious facial disfigurement and was principally concerned with how FS functioned, on which he accepted FS’s evidence. Sociological evidence about disability in Iraq was likewise unnecessary. The physical attacks were unrelated to disability, and the accepted evidence of gibes and taunts fell well below the high Article 3 threshold.
5. The adverse credibility finding concerning the family’s payment of $5,000 for FS’s removal arose directly from his own account and required no expert evidence. The proposed reframing of the family’s conduct had not been the case advanced before the Immigration Judge and would not have established that the family would shun him on return. The renewed application therefore sought to reopen matters already fully and fairly considered.

Order: application refused.

• Court of Appeal (Civil Division) — on a renewed application for permission to appeal, Toulson LJ refused the application, finding no arguable ground: [2007] EWCA Civ 928.
• Asylum and Immigration Tribunal — dismissed FS’s appeal against the determination of Immigration Judge Dearden promulgated on 21 February 2006.