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KV (Sri Lanka) v Secretary of State for the Home Department, 2019
Country of Decision:
Country of Applicant:
Date of Decision:
06-03-2019
Citation:
KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10
Court Name:
Supreme Court
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Headnote:
This appeal considered what the correct approach is to the assessment of medical evidence in asylum claims alleging torture. Hence, it was declared that decision-makers can receive assistance from medical experts who are able to offer an opinion about the injury inflicted. The Supreme Court unanimously allowed the appeal and remitted KV’s appeal against the refusal of asylum to the Upper Tribunal for fresh determination.
Facts:
KV, a Sri Lankan asylum-seeker, claimed that the scares on his back and arm were the result of torture by Sri Lankan government forces, but his claim was disbelieved on the basis that the scars were self-inflicted by proxy (inflicted by another person at KV’s own invitation) as an incentive to manufacture evidence in support of a false asylum claim. The photographs he provided were deemed insufficient evidence and the decision maker found inconsistencies in his narrative, noting that no medical evidence was provided in support of his claim of torture which was rejected. The First-tier Tribunal dismissed his appeal. The UT was also unconvinced by KV’s evidence from a clinical point of view. The Court of Appeal dismissed his further appeal.
Decision & Reasoning:
The Supreme Court considered the “Istanbul Protocol”; a guide for medical experts to indicate for each wound the degree of consistency between it and the cause given by the patient. It consists of a scale from “not consistent” to “diagnostic of”.
Dr Zapata-Bravo, who was the medical expert in the Upper Tribunal, had stated that the clinical findings were “highly consistent” with KV’s account of what had happened. It was held that he had reached his conclusion in accordance with the Istanbul Protocol. The Court elaborates by stating that decision-makers can receive assistance from medical experts who are able to offer an opinion about the consistency of the wound inflicted with the asylum seeker’s account about the circumstances in which such wound was inflicted. It was also held that the conclusion about credibility always rests with the decision-maker following a survey of all the evidence.
The Court came to the conclusion that the tribunal failed to take into account the fact the evidence of extensive torture by state forces in Sri Lanka in 2009 and more importantly that self-infliction of wounds is highly unlikely, as per Dr Zapata-Bravo. This is because, in the field of immigration, there was no experience of such wounding.
Elias LJ also placed considerable weigh on the fact that injuries which are Self-Inflicted by Proxy (SIB) are likely to be extremely rare, as they typically involved co-operation of a qualified doctor and suffering of continuing pain and discomfort. [35]
The case was re-directed to the tribunal to determine KV’s appeal against the refusal of asylum.
Outcome:
Appeal granted.
Other sources cited:
SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302; [2007] Imm AR 1 236
RT (medical reports - causation of scarring) Sri Lanka [2008] UKAIT 00009
R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521
SS (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 310
Mehmet Eren v Turkey (2008) (Application No 32347/02)
Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”
Istanbul Protocol 1999,
Guidelines on the Judicial Approach to Expert Medical Evidence June 2010,
Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service July 2015, The UN Special Rapporteur on Torture
