Commentary
This case has important lessons for psychology and psychiatry expert witnesses and also for lawyers. It makes clear that, at least in the Asylum and Immigration Chamber, psychologists are expected to consider general practitioner records.
There is a curious reference to how the appellant’s solicitors sought a 'psychiatric and psychological' evaluation to confirm whether he suffered from any mental health conditions. I know only three experts who have professional qualifications in both psychiatry and psychology (i.e. not counting psychiatrists who have a degree in psychology). One is, I think, completely retired (name forgotten), one, Professor Michael Kopelman, is retiring, and the third, Professor John Livesey, who trained with me in Edinburgh is in Vancouver. Perhaps this is yet again an illustration of how solicitors do not know the difference between a psychiatrist and a psychologist.
Learning points
Perhaps the most important lesson is that clinical truth and legal proof are different concepts.
A psychologist may competently diagnose complex PTSD. A court may even accept that diagnosis. Yet the legal question is different:
- How much evidential weight should be attached to the opinion?
- Is it based on all reasonably available material?
- Does it fit with the objective evidence?
- Does it establish the legal test for resisting deportation?
Conversely, lawyers must appreciate that expert evidence is strongest when it is fully documented, carefully instructed, and integrated with the factual record. An excellent expert opinion can lose much of its persuasive force if avoidable omissions—such as failing to provide GP records—allow the tribunal to question the completeness of the assessment. This case illustrates that successful advocacy depends not only on obtaining expert evidence but also on ensuring it is robust and capable of withstanding judicial scrutiny.
Case
Rusty Tayhopon, a national of the Philippines now aged 31 years, entered the United Kingdom during 2007 with indefinite leave to enter to join a parent. When he was convicted in July 2023 of three specimen counts of offences involving the making, and possession, of prohibited images of children and animals and sentenced to 14 months' imprisonment, he was ordered to be deported.
This is the judgment given upon appeal following the decision of the First-tier Tribunal (FTT) dismissing his appeal against deportation. The appellant's evidence was that he was a victim of abuse and childhood trauma. This matter was raised for the first time at the hearing and was supported by a report from a clinical psychologist, Dr Anna Maria Tino. The judge took no issue with his account of his life experiences and the circumstances of his offending. Nonetheless, his appeal was dismissed with the judge prepared to attach only limited weight to the psychologist's report.
He was granted permission to appeal to the Upper Tribunal.
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