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How Psychiatric Assessments Support Vulnerable Appellants in Human Rights Cases

ByUmut

Mental illness can affect how an appellant gives evidence: memory, the order in which events are recalled, comprehension and composure under questioning. The Tribunal’s guidance recognises this, and psychiatric evidence is often what establishes it.

The guidance the Tribunal applies

The Joint Presidential Guidance Note No 2 of 2010 (child, vulnerable adult and sensitive appellant guidance) remains in force, and paragraph 13 of the First-tier Tribunal’s Practice Direction of 1 November 2024 requires the Tribunal to have regard to it. The Guidance lists mental health problems among the factors that indicate vulnerability, and asks the judge to consider whether expert evidence is needed, particularly where there is a dispute about a person’s ability to participate in the proceedings.

Since Ferdous Alam Khan v SSHD [2026] EWCA Civ 148, a failure to follow the Guidance may, but will not automatically, amount to a material error of law: the question is whether any procedural unfairness affected the decision. It is better to raise vulnerability early, with evidence, than to rely on an onward appeal.

What a psychiatric report can address

  • Whether the appellant is vulnerable, and why
  • Adjustments that would help, such as breaks, plain questions or giving evidence by video
  • Fitness to give evidence, and whether giving evidence may cause distress or affect accuracy
  • Capacity to give instructions, and whether a litigation friend may be needed
  • How the condition may explain gaps, discrepancies or demeanour

Vulnerability and credibility

Treating someone as vulnerable does not mean their account must be accepted. In SB (vulnerable adult: credibility) Ghana [2019] UKUT 00398 (IAC), the Upper Tribunal said the Guidance serves two purposes: giving the appellant the best practicable conditions to give evidence, and taking vulnerability into account when assessing that evidence. How the two relate is for the judge.

Fitness to give evidence is not the same as capacity

The Royal College of Psychiatrists’ guidance on reports in asylum and immigration cases (CR199) asks the psychiatrist to say clearly whether, for clinical reasons, a person should not give evidence, or can give evidence but may become distressed in a way that affects its accuracy, and to keep that separate from capacity.

Practical points

  • Put the vulnerability questions in the letter of instruction.
  • Serve the report in time: late evidence may not be admitted (Maleci [2024] UKUT 00028 (IAC)).
  • Raise the adjustments at the case management stage, with the report.

Related service: psychiatric reports for asylum appeals. To instruct an expert, send us the case details and we will come back with the proposed expert’s CV, quotation and availability.

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