SS (Sri Lanka) v Secretary of State for the Home Department

The weight to be given to expert evidence is ordinarily a matter for the tribunal. A tribunal may reject psychiatric evidence without error of law if it considers it with appropriate care and gives adequate, cogent reasons.

Where a psychiatric report depends on an account materially contradicted by binding credibility findings, the contradiction may undermine the report. Critical scrutiny is particularly justified where symptoms were not raised earlier and recommended treatment was not pursued. Experts must receive the material documents relevant to their instructions; otherwise their opinions may properly be scrutinised closely or rejected.

The appellant, a Tamil citizen of Sri Lanka, sought asylum, humanitarian protection and protection under Articles 3 and 8 of the ECHR. An Immigration Judge rejected her account of past persecution and found that she would not face a real risk on return.

On reconsideration, the Upper Tribunal considered new psychiatric reports diagnosing complex post-traumatic stress disorder and major depressive disorder, including a claimed risk of suicide on return. Senior Immigration Judge Spencer gave the reports little weight, rejected the claimed suicide risk, and found in the alternative that family support and psychiatric facilities in Sri Lanka would remove any such risk.

The appellant contended that the Upper Tribunal had mishandled the medical evidence and had failed to consider the effect of removal on her son.

Appeal dismissed. Stanley Burnton LJ, with whom Lewison and Maurice Kay LJJ agreed, held that the Upper Tribunal’s determination disclosed no error of law.

1. The weight of expert evidence is generally for the trial judge or tribunal. Rejecting expert evidence is not, without more, an error of law. The relevant questions are whether the evidence was considered with appropriate care and whether adequate reasons were given. Those questions are closely connected because sufficient reasons ordinarily demonstrate the care taken.

2. The Upper Tribunal gave full and cogent reasons for discounting the psychiatrist’s evidence. The history given to the psychiatrist materially differed from the facts previously found. The appellant had shown no earlier difficulty in giving her account, had not sought treatment for the alleged severe symptoms, and had not acted on the psychiatrist’s treatment recommendations. In those circumstances, and following the adverse credibility findings, the Tribunal was entitled to scrutinise the evidence critically.

3. The court applied the distinction identified in Y and another (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362. Although a tribunal needs acceptable reasons to reject uncontradicted psychiatric evidence, a report may be undermined where its factual basis conflicts with the tribunal’s findings. This was such a case.

4. There was no evidential basis or argument before the Upper Tribunal requiring a separate assessment of the effect of removal on the appellant’s son. Its determination could not therefore be criticised on that ground.

5. There was also no basis to disturb the alternative finding that family reception and available mental-health care in Sri Lanka would obviate any suicide risk. Return would not breach Article 3 or Article 8 of the ECHR.

The court added, obiter, that parties obtaining expert reports must provide experts with relevant prior decisions, interview records and other material documents. A failure to do so may properly lead to critical scrutiny or rejection of the resulting opinion.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal and upheld the Upper Tribunal’s assessment of the psychiatric evidence.
• Upper Tribunal (Immigration and Asylum Chamber) — Senior Immigration Judge Spencer, by a determination dated 7 January 2011, dismissed the appeal after reconsideration.
• Upper Tribunal reconsideration — Senior Immigration Judge Goldstein ordered reconsideration in December 2009. Senior Immigration Judge Jordan rejected challenges to the original credibility findings but identified outstanding issues concerning return arrangements and possible camp risks.
• Asylum and Immigration Tribunal — Immigration Judge Roopnarine-Davis dismissed the appellant’s appeal against the refusal of asylum and humanitarian protection.