OA (Nigeria) v Secretary of State for the Home Department

When assessing credibility in an asylum claim, a tribunal may be required to adopt a holistic approach to the evidence, including relevant expert evidence. It need not accept the expert opinion. It may find parts of the applicant’s account incredible or conclude that symptoms were inaccurately described to the expert. However, it must engage with expert evidence that may materially bear on credibility. At the permission stage, the hurdle is low. Permission may be granted where it is arguable that the First-tier Tribunal failed to address material expert evidence and that the Upper Tribunal did not properly correct the error, particularly where its reasoning proceeded on a false factual premise.

The applicant, a Nigerian national, claimed asylum on the basis that she faced persecution from her late husband’s family and because of her sexual orientation. She relied on a psychiatric report diagnosing PTSD and attributing it, in part, to kidnapping, ill-treatment and rape in Nigeria.

The First-tier Tribunal accepted the diagnosis but rejected the applicant’s account and the proposed causation. The Upper Tribunal dismissed her appeal, placing reduced weight on the report because the expert allegedly had not known that an earlier tribunal had found her marriage to be a sham. The applicant sought permission to appeal, alleging that the expert evidence had not been properly considered. The central issue was whether that complaint disclosed an arguable error of law.

1. Permission granted. Lord Justice Hickinbottom granted permission to appeal on the ground concerning the treatment of expert evidence. The other grounds had already been refused.
2. In credibility assessments, a tribunal may need to take a holistic approach to the evidence, including expert evidence. It is not required to accept the expert opinion. It may find that parts of the applicant’s account are not credible, even where expert evidence points in the opposite direction, or that the applicant did not accurately portray her symptoms to the expert. The tribunal must nevertheless take account of expert evidence that may be relevant to credibility. This approach was illustrated by R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 and KB (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 1190.
3. It was at least arguable that the First-tier Tribunal had not properly considered Dr Katona’s expert evidence in relation to credibility. Although the tribunal accepted the PTSD diagnosis, its reasoning did not adequately address the expert’s opinion on causation. The Upper Tribunal appeared to accept that the analysis was deficient but relied on the additional point that Dr Katona had been unaware of the applicant’s deceptive conduct.
4. That factual premise was wrong. Dr Katona had been aware that the applicant’s second marriage had been held to be a sham. The Upper Tribunal therefore appeared to have proceeded on a false factual basis, and the alleged error had arguably not been corrected.
5. The permission threshold was satisfied because the proposed ground was arguable and raised an important issue of principle or practice concerning the proper treatment of expert evidence. The Court did not determine the applicant’s credibility, the causation of her PTSD, or the ultimate merits of the appeal.

• Court of Appeal (Civil Division): On 26 November 2018, permission to appeal was granted on the expert-evidence ground. [2018] EWCA Civ 3042
• Upper Tribunal (Immigration and Asylum Chamber): An appeal was dismissed by a determination promulgated on 30 April 2018.
• First-tier Tribunal (Immigration and Asylum Chamber): The asylum appeal was dismissed by a determination promulgated on 27 November 2017.