UK - Court of Appeal, 10 October 2006, SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302

Country of Decision:
Country of Applicant:
Date of Decision:
10-10-2006
Citation:
[2006] EWCA Civ 1302
Court Name:
Court of Appeal
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Headnote: 
This case concerned expert medical evidence relied on in support of an asylum application. The case confirmed that Experts documenting torture should follow the Istanbul Protocol and in particular Chapter V. It was also confirmed that all evidence, including medical evidence, had to be considered before findings of credibility or fact could be made.
Facts: 
The applicant was a member of the Bendabow sub-clan of the minority Benadir clan in Somalia. He gave an account of torture in Somalia  and in support of his account produced an undated letter from a general practitioner (the GP). The GP described signs of an old injury, principally scarring on the applicant’s body.  The applicant also produced a letter from the United Somali Benadir Council confirming that he was a member of the minority clan.
 
His appeal at first instance was dismissed and a further appeal on the grounds that the Adjudicator (now known as Immigration Judge) had ‘compartmentalised’ the medical evidence was also dismissed. The Tribunal held that the medical evidence did not corroborate the applicant’s evidence. 
 
The Court of Appeal granted permission to appeal on what was termed the Mibanga point.
 
Note: Mibanga v Secretary of State of the Home Department [2005] EWCA Civ 367 was authority for the proposition that it was an error of law to make credibility findings before considering relevant medical evidence.

 

Decision & Reasoning: 
The court affirmed the reasoning of Mibanga, that all evidence including medical evidence, had to be considered before findings of credibility or fact could be made.

The purpose of medical evidence was to “corroborate and/or lend weight to the account of the asylum seeker by a clear statement as to the consistency of old scars found with the history given.”
 
In any non-contemporaneous or near contemporaneous report, the doctor should express an opinion as to the consistency of the injuries with the claimed causes, torture or other ill treatment. The court also referred to the desirability of the medical expert indicating the possibility of alternative or “everyday”   explanations or causes of injuries and where appropriate referring to physical indications which may make the applicant’s account more or less likely.
 
The court referred to Chapter Five of the Istanbul Protocol and quoted paragraphs 186-187 in full. They specifically referred to paragraph 161 which is the guidance on objectivity and impartiality.
 
The court advised those requested to supply medical reports supporting allegations of torture to bear those passages in mind.
 
The report in the applicant’s case fell short of those standards. The matter turned on the quality of the medical evidence, rather than the order of consideration. The court compared the medical evidence in the applicant’s case with the medical evidence in Mibanga. 
 
Insofar as the medical evidence in the applicant’s case was simply a repetition of the applicants explanations with no independent opinion as to causation and it was deemed to be inadequate. The applicant’s  representatives had invited the court to infer consistency but this was not acceptable.  The Adjudicator had rejected the applicant’s explanation for how he got the scars.  In the absence of any independent opinion from the GP on the consistency of the scars with the Applicant’s explanation, there was no error of law.
Outcome: 
The appeal was dismissed.
Observations/Comments: 
The court only considered physical scarring. Further this case was described by the Tribunal in RT (medical reports, causation of scarring) Sri Lanka [2008] UKAIT 00009 as a landmark decision.
Other sources cited: 
United Nations High Commissioner for Human Rights, The Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  (The Istanbul Protocol).
Case Law Cited: 

UK - Mibanga v Secretary of State of the Home Department [2005] EWCA Civ 367