BN v The Secretary of State for the Home Department

A tribunal may reject an uncontradicted psychiatric diagnosis of depressive illness, but it must give clear reasons that adequately engage with the professional psychiatrist’s clinical judgment.

Where psychiatric evidence is relied on only to explain inconsistencies in an asylum account, its relevance depends on whether it addresses the full basis on which credibility was rejected. A diagnosis of depression will not be material if it provides no reasonable explanation for the wider implausibilities, inconsistent accounts, conduct in pursuing the claim, and other adverse credibility findings.

An error in the treatment of a diagnosis does not require the appeal to be allowed where, even accepting the diagnosis, the outcome could not realistically differ.

BN v The Secretary of State for the Home Department concerned an Albanian asylum claimant whose account of desertion from military service and feared ill-treatment was rejected as not credible by an Immigration Judge on 7 August 2009.

He sought reconsideration, contending that the Immigration Judge had erred in her treatment of psychiatric reports diagnosing depression. The reports were relied on principally to explain discrepancies between his screening and asylum interviews, especially the timing of his military service and alleged homosexual encounter.

Reconsideration was ordered because it was arguable that adequate reasons had not been given for rejecting the diagnosis. The Upper Tribunal had to decide whether there was an error of law and, if so, whether it was material to the dismissal of the asylum appeal.

1. Appeal dismissed. Although some criticisms made by the Immigration Judge of the psychiatric evidence were unsound, any error was immaterial. The Tribunal would have reached the same result.

2. The two psychiatrists agreed that the appellant had a depressive illness. The difference between descriptions of it as severe or moderately severe was not a sound reason to reject that diagnosis. Further, the Immigration Judge did not adequately engage with Dr Van Woerkom’s clinical view that the symptoms appeared genuine and were not malingering. A tribunal rejecting such a diagnosis must give clear reasons which address the professional psychiatrist’s judgment on clinical observation.

3. Nevertheless, the Immigration Judge was entitled substantially to reduce the weight given to Professor Prasher’s opinion about current fitness to give evidence. It was based on an examination more than a month earlier and was qualified neither by a recent assessment nor by recognition that mental state could change.

4. More importantly, the psychiatric evidence was advanced only as an explanation for inconsistencies. It did not address the broader basis for rejecting credibility: implausibilities in the account, conflicting explanations, the abandoned allegations against the interpreter, the detailed and apparently normal interview answers, and the appellant’s unexplained absence from the hearing. The psychiatrists had not read or evaluated the interview records, the appellant’s statement, or the solicitors’ letters when expressing views about the source of the discrepancies.

5. Even if the depressive diagnosis were accepted, it did not reasonably explain the many adverse features of the evidence and behaviour. It therefore could not affect the credibility outcome. The appellant also accepted that, if credibility failed, the psychiatric evidence did not establish a sufficiently strong return case under Article 3 of the European Convention on Human Rights.

• Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, dismissed the appeal and upheld the Immigration Judge’s rejection of the asylum claim.

• Reconsideration stage: Mr Justice Langstaff ordered reconsideration on 18 February 2010 because it was arguable that adequate reasons had not been given for rejecting the psychiatric diagnosis.

• Immigration Judge: On 7 August 2009, Immigration Judge Ransley dismissed the asylum appeal after finding the account and claimed homosexuality not credible.