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

An immigration tribunal must consider the best interests of children affected by its decision, where necessary of its own motion. Failure to do so is an error of law, although an appeal succeeds only if the error could have affected the outcome.

Medical evidence may support an asylum claimant’s credibility even where a diagnosis depends partly on the claimant’s account. Relevant clinical findings should receive proper weight. An error in assessing that evidence remains immaterial where an unchallenged alternative finding is independently fatal to the claim.

A Sri Lankan national appealed against the Upper Tribunal’s dismissal of her asylum appeal. She alleged that state forces had raped her, abducted her husband and subsequently sought her. The tribunal rejected her credibility, gave little or no weight to medical evidence concerning post-traumatic stress disorder and scarring, and alternatively found that she faced no risk on return even if her account were true.

The tribunal had not separately considered the best interests of her two children. The Court of Appeal considered whether that omission was an error of law, whether it justified a second appeal, and whether the tribunal had wrongly discounted the medical evidence.

1. Appeal dismissed. Permission for a second appeal was granted because the possible duty of the First-tier and Upper Tribunals to consider affected children’s best interests of their own motion raised an important point of principle. In the circumstances, the arguable adverse effect on the children also amounted to a compelling reason to hear the appeal.
2. Proceedings in both tribunals remain part of the immigration decision-making process. The tribunals must therefore observe section 55 of the Borders, Citizenship and Immigration Act 2009. The importance attributed to children’s best interests in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 meant that the tribunal had to address the issue even though neither party had made specific submissions upon it. Its failure to do so was a serious error of law.
3. The error did not affect the result. There was no evidence that the children had established significant roots or private life in the United Kingdom. Their best interests lay in living with their mother, subject to her receiving suitable treatment. It was not suggested that her physical or mental conditions could not be treated in Sri Lanka. Their family life would remain intact because they would return with her. The unchallenged finding that she faced no risk on return also removed any basis for concluding that her safety would prevent her caring for them.
4. The medical reports deserved substantially more weight than the tribunal had given them. The diagnoses of post-traumatic stress disorder, the reported flashbacks and the evidence of consistent scarring supported the appellant’s account, although the clinical opinions ultimately depended upon information supplied by her. The tribunal had been too ready to take an adverse view of this evidence.
5. A more receptive assessment might have altered the credibility finding, but could not have changed the outcome. The tribunal’s independent and unchallenged conclusion that the appellant faced no persecution or ill-treatment even if her account were entirely true was fatal to the asylum appeal.

Moore-Bick LJ delivered the judgment. Sullivan LJ and Maurice Kay LJ agreed.

1. Court of Appeal (Civil Division): Permission for a second appeal was granted, but the appeal was dismissed. The Upper Tribunal had committed errors of law concerning the children’s best interests and the medical evidence, but neither error could have affected the outcome.
2. Upper Tribunal: The tribunal identified an error of law in the First-tier Tribunal’s decision and reheard the case. It dismissed the asylum appeal, rejecting the appellant’s account and finding alternatively that she would face no risk on return even if that account were true.
3. First-tier Tribunal: The appellant’s appeal against the refusal of asylum was dismissed.