PA (Iran), R (On the Application Of) v Upper Tribunal (Immigration And Asylum Chamber)

In a Cart judicial review, a tribunal decision may be vitiated where the First-tier Tribunal materially misunderstands expert evidence relevant to credibility. The judge need not accept expert evidence, but must read and evaluate it accurately. A mischaracterisation of mild cognitive impairment as severe malfunctioning may distort the assessment of whether inconsistencies in an asylum account are attributable to cognitive difficulties. If that error could have affected the conclusion that an earlier adverse credibility finding remained safe, the decision contains an arguable error of law.

The appellant, an Iranian Kurdish national, challenged the refusal of permission to appeal against the dismissal of his fresh asylum and human rights claims. The First-tier Tribunal had relied on an earlier adverse credibility finding and rejected psychological and psychiatric evidence describing mild cognitive impairment. Permission to appeal was refused by the First-tier Tribunal and the Upper Tribunal, and permission for judicial review was refused by the Administrative Court.

The appeal concerned whether the First-tier Tribunal had materially misunderstood the medical evidence and thereby adopted an unfair or legally unsustainable approach to credibility and the earlier findings.

1. Appeal allowed. The proceedings were subject to the high permission threshold applicable to judicial review of Upper Tribunal refusals of permission to appeal. The appeal was determined on Grounds (2) and (3), concerning the treatment of the psychological and psychiatric evidence.
2. The First-tier Tribunal was not bound to accept the experts’ evidence or give it full weight. It was, however, required to consider that evidence carefully and base its findings on a proper reading of the reports.
3. The First-tier Tribunal fundamentally misread or mischaracterised the evidence of Dr McNulty and Dr Heydari by treating it as evidence of very severe malfunctioning or severe cognitive difficulties. Both experts had consistently described the appellant’s difficulties as mild. The judge also attributed to the experts a comparison of the appellant’s reasoning to that of a seven- or eight-year-old child, although that comment came from a non-expert witness.
4. That misunderstanding materially affected the reasoning. It led the judge to contrast the supposed severity of the impairment with the appellant’s presentation and written evidence, and to form adverse views about the appellant’s credibility and tactical conduct. The findings were therefore, at least in part, based on a flawed understanding of the evidence and were facially unsustainable.
5. The medical evidence, properly understood and considered alongside the appellant’s young age, arguably provided a plausible explanation for the infelicities and inconsistencies underlying the earlier adverse credibility finding. The First-tier Tribunal might consequently have concluded that the earlier finding was unsafe. Grounds (2) and (3) were sufficient to determine the appeal; Grounds (4) and (6) were unnecessary to decide and appeared to lack real merit.
6. The court observed that excessive detail in First-tier Tribunal judgments can impair consistency and cogency. Evidence relevant to the issues should be identified and analysed; length is not a substitute for analysis.

• Court of Appeal (Civil Division): appeal from the Administrative Court allowed on the basis of material errors in the First-tier Tribunal’s treatment of the medical evidence.
• High Court of Justice, Administrative Court: Mr Justice William Davis refused permission to apply for judicial review on 3 November 2015.
• Upper Tribunal (Immigration and Asylum Chamber): permission to appeal was refused on 25 August 2015.
• First-tier Tribunal: permission to appeal was refused on 2 July 2015 after the appellant’s asylum and human rights appeal had been dismissed.