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Vulnerable adults in the immigration tribunal

Vulnerable adults in the immigration tribunal

In SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC) the Upper Tribunal has provided a steer on how immigration judges should approach evidence given by vulnerable adults, in addition to that provided in the Joint Presidential Guidance Note No 2 of 2010. The key point is that adverse credibility findings can be made against vulnerable adults and it is not necessary for the tribunal judge to refer to the vulnerability when making each finding.

The appeal concerned an asylum seeker from Ghana who had been diagnosed with depression. At his appeal the First-tier Tribunal judge identified that this meant he was a vulnerable adult within the meaning of the Presidential Guidance on this issue, which states:

The consequences of such vulnerability differ according to the degree to which an individual is affected. It is a matter for you to determine the extent of an identified vulnerability, the effect on the quality of the evidence and the weight to be placed on such vulnerability in assessing the evidence before you, taking into account the evidence as a whole.

The guidance goes on to state the matters which must be recorded in the determination:

The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered the identified vulnerability had in assessing the evidence before it and thus whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof.

The Upper Tribunal was satisfied that the tribunal judge had followed this guidance correctly:

If one examines the judge’s findings, one can see that they are fully in accord with that second aim. At paragraph 40, the judge expressly stated that she had had regard to the appellant as vulnerable, given his diagnosis of depression “and that he should be accorded liberal application of the benefit of the doubt”. [Counsel for SB] was completely unable before us to show that Judge Plumptre might not, in fact, have done what she expressly said she did. On the contrary, [counsel] could offer no explanation of how the fact that the appellant has been on antidepressants is capable of having a positive bearing on the credibility of his account, by reference to his contradictory statements ranging over a considerable period of time.

The headnote records the role of the tribunal when deciding facts relating to the evidence of a vulnerable adult.

The official headnote

(1) The fact that a judicial fact-finder decides to treat an appellant or witness as a vulnerable adult does not mean that any adverse credibility finding in respect of that person is thereby to be regarded as inherently problematic and thus open to challenge on appeal.

(2) By applying the Joint Presidential Guidance Note No 2 of 2010, two aims are achieved. First, the judicial fact-finder will ensure the best practicable conditions for the person concerned to give their evidence. Secondly, the vulnerability will also be taken into account when assessing the credibility of that evidence.

(3) The Guidance makes it plain that it is for the judicial fact-finder to determine the relationship between the vulnerability and the evidence that is adduced.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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