IY (Turkey) v Secretary of State for the Home Department

When the Upper Tribunal considers evidence not placed before the First-tier Tribunal, rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 is not exhaustive. The Ladd v Marshall criteria may generally be applied by analogy, although exceptionality is descriptive rather than a legal test. An expert report is not binding merely because it was admitted or not challenged in cross-examination. A tribunal may reject it, provided it approaches the evidence with care and gives rational, justifiable reasons. Psychiatric evidence may materially support an account of torture, but the credibility of the underlying events remains for the tribunal, which must assess the evidence holistically.

The appellant, a Turkish citizen and Alevi Kurd, appealed against refusal of asylum and proposed removal to Turkey. The First-tier Tribunal dismissed his appeal after rejecting his account and treating a late psychiatric report diagnosing complex post-traumatic stress disorder as insufficient corroboration. The Upper Tribunal dismissed his appeal, finding no error of law in the First-tier Tribunal’s treatment of the report and credibility evidence. The Court of Appeal considered the admission of a further psychiatric report and whether the First-tier Tribunal was entitled to reject the unchallenged first report.

The appeal was dismissed. The Court of Appeal held that the Upper Tribunal correctly found no material error of law in the First-tier Tribunal’s treatment of the psychiatric evidence.

1. Fresh evidence. Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 was not exhaustive. The Upper Tribunal could generally have regard, by analogy, to the criteria in Ladd v Marshall [1954] 1 WLR 1489. Exceptionality described the usual circumstances in which fresh evidence might be admitted without consent, but was not the legal test; the decisive question was what justice required. The statutory scheme was directed to correcting errors of law and did not ordinarily permit a rehearing of facts. The further report was properly refused because it involved no fresh assessment or circumstances, could have been obtained earlier, and principally offered a running critique of the First-tier Tribunal’s reasoning, which was a matter for counsel rather than an expert.
2. Unchallenged expert evidence. The Secretary of State’s failure to obtain competing psychiatric evidence or cross-examine the expert created a risk that the report would be accepted if there were no other good reason to reject it. Nevertheless, the First-tier Tribunal was not bound to accept the report. It had to approach it with appropriate care and give good, rational and justifiable reasons. That approach was consistent with SS (Sri Lanka) v Secretary of State for the Home Department [2012] EWCA Civ 155.
3. Role of psychiatric evidence. The diagnosis of PTSD or complex PTSD was a highly material factor, and could sometimes be decisive. The expert assessed symptoms and clinically evaluated the account given in connection with those symptoms. The ultimate appraisal of credibility, plausibility and the factuality of the underlying events remained for the tribunal. The principles discussed in R (o/a Minani) v IAT [2004] EWHC 582 (Admin) and Y (Sri Lanka) v SSHD [2009] EWCA Civ 362 were applied and explained in that limited context.
4. Application. The First-tier Tribunal had considered the evidence holistically. It gave rational reasons for rejecting the report as corroboration, including the appellant’s ability to follow complex travel instructions, recount his account in detail, and give evidence and undergo cross-examination despite the expert’s opinion that he lacked that capacity. The tribunal’s other findings of implausibility and inconsistency were capable of undermining the factual basis of the psychiatric opinion. The Upper Tribunal was therefore entitled to find no error of law.

• Court of Appeal (Civil Division): Appeal dismissed; the Upper Tribunal had correctly found no error of law in the First-tier Tribunal’s decision: [2012] EWCA Civ 1560.
• Upper Tribunal (Immigration and Asylum Chamber): Appeal from the First-tier Tribunal dismissed. The Upper Tribunal held that the First-tier Tribunal was entitled to reject the psychiatric report and had given proper reasons for its credibility findings.
• First-tier Tribunal: Appeal dismissed against the Secretary of State’s refusal of asylum and proposed removal to Turkey.