U.K. Court of Appeal issues judgment regarding independent medical evidence of torture

Friday, October 4, 2013

United Kingdom: [2012] EWCA Civ 521: Court of Appeal (Civil Division): R (on the application of AM) and the Secretary of State for the Home Department

These proceedings concern AM's (the appellant's) claim that she was illegally detained, purportedly pursuant to paragraph 16(2) of the Immigration Act 1971 as an illegal immigrant pending removal, in the period between 10 October and 13 November 2008. On 13 November 2008 she was granted bail by the AIT and her detention ceased. On 10 October 2008 she had been in detention since 11 April 2008, but it was only on 10 October that her claim for judicial review was issued and served by new solicitors, Wilson Solicitors LLP, following their service on the previous day, 9 October, of fresh material and representations concerning her claim to asylum. That material included two reports prepared by Lucy Kralj of the Helen Bamber Foundation dated 7 October 2008 concerning the appellant's mental health and scarring. In the light of that fresh material and in particular Ms Kralj's reports the question arose whether, pursuant to the Secretary of State's Enforcement Instructions and Guidance (the "Guidance"), the appellant should have been regarded as unsuitable for detention and therefore released. (...) The appellant submits that Ms Kralj's reports contained independent evidence that she, the appellant, had been tortured and that on that basis the Secretary of State should have released her from detention from 10 October 2008 or shortly thereafter, but in any event before her actual release on 13 November. On 4 November 2008 the Secretary of State had replied to the fresh representations, rejecting them as constituting a new claim for asylum, and wholly discounting the reports of Ms Kralj in the light of the appellant's previous lack of credibility. The essential issue on this appeal therefore is whether Ms Kralj's reports contained independent evidence that the appellant had been tortured. The Secretary of State, below the defendant and in this court the respondent, denied that it did. She submitted that because the reports were based on the appellant's own information it did not constitute "independent evidence". The judge below, Mr Justice Burnett, agreed, and in any event found that there were very exceptional circumstances justifying detention. (...)

The Judge ruled:

- As to the independent evidence of torture:[paragraphs 29,30,31,32]

"In my judgment, Ms Kralj's reports constituted independent evidence of torture. Ms Kralj was an independent expert. She was expressing her own independent views. As the judge himself said, her scarring report provided independent evidence of AM's scarring, and that seven of the scars were consistent with deliberately inflicted injury. If they were deliberately inflicted, who had inflicted them? It may have been in theory possible that they were deliberately inflicted by AM herself, or even by another person for some reason other than torture, but that would not be likely. It was not a thesis that Ms Kralj put forward. On the contrary, it is evident from her assessment that she believed that AM had suffered torture and rape and that those misfortunes had rendered her the "grossly traumatized" woman that she found her to be, with "feelings of deep and intense shame and self-disgust", "feelings of shame and stigmatization", and a "fragile mental state". Those findings are Ms Kralj's interpretation of what she found, they are not the mere assertions of AM. (...) .The only reason ultimately given by the judge for not accepting Ms Kralj's reports as independent evidence of torture is contained in the last sentence of his paragraph 24, where he said: "But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant's account how they were caused" (emphasis added). If the judge was talking about Ms Kralj's belief, that was plainly independent evidence, even if it depended in part on formulating her opinion in the light of AM's account. If, however, the judge was referring to the "acceptance" by the Secretary of State, that is neither a matter of evidence, nor is it independent, and the judge would be adding a new requirement, not mentioned in the Guidance, to qualify the Secretary of State's policy. I therefore conclude that, irrespective of whether the burden of proof falls on the Secretary of State or on AM, Ms Kralj's reports constitute independent evidence that AM had been tortured."

- As to the "very exceptional circumstances" in favour of maintaining AM's detention:[paragraphs 34,35,36]
"The judge considered that there were, which he referred to compendiously at the end of paragraph 27 of his judgment by saying: "The immediate background to the receipt of these representations provided ample material to support detention very exceptionally pending a decision on permission to apply for judicial review". It is not entirely clear what factors the judge was taking into account in that sentence, especially bearing in mind that the assessment of very exceptional circumstances is ultimately for the court. However earlier in his judgment the judge had mentioned such things as the Secretary of State's assertion that the new representations were a try-on when set against the background of the total failure of AM's asylum claim to date; the AIT's view that AM was totally lacking in credibility; the previous refusal of bail on the ground of "a materially greater risk of her absconding" (as Immigration Judge Khan had put it); and Goldring J's view that a previous judicial review claim (lodged in July 2008) was totally without merit and hopeless.
 In this court Mr Jeremy Johnson QC for the Secretary of State relied on similar factors. However, such factors reflect the position before the new representations of 9 October 2008 and the new judicial review claim of 10 October 2008 based on those new representations had been made. Previously, AM had been (very largely) unrepresented, had made no witness statement, and had not been referred to the Helen Bamber Foundation. Previously there had been no health assessment and no report of scarring. Moreover, AM was neither an offender nor an absconder. Despite what Immigration Judge Khan had said, the facts reveal, stated on a single sheet of paper dated 30 October 2008 produced by UKBA itself, that AM had reported 34 times, had reported late on a single occasion, and had failed to report ("No shows") only 6 times, with the explanation of "subject unwell" against at least 4 of those times. Despite these facts, the Secretary of State in her opposition to bail had referred to the "risk of absconding"; and had also erred (as the judge had to remark) in saying that she had "presented a false passport on arrival". The real complaint was that a notice had been issued to her for having falsely obtained a visitor's visa, not for having presented a false passport.
In my judgment, however understandable it may have been that the Secretary of State was guided by the past results of AM's unrepresented litigation as an asylum seeker, she failed to give due regard to the significant change which had occurred with the representations of 9 October and the Kralj reports. These had to be considered on their own merits, however much scepticism may have been generated from the past, and on their own merits it was wrong to have described them as a "try-on". In any event, the Secretary of State did not at the time invoke the exception of "very exceptional circumstances". I do not rely on subsequent events for my conclusion that there were not here those "very exceptional circumstances" that could have justified a departure from policy, but merely point out that my conclusion is at any rate consistent with the subsequent decisions of the AIT to grant AM bail and of the FTT to allow her asylum appeal."

For the full text of the judgment please visit: Court of Appeal (Civil Division): R (on the application of AM) and the Secretary of State for the Home Department
For a relevant blog reference to this judgment please see:Free movement blog: Important judgment on the value of medical reports

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Credibility assessment
Medical Reports/Medico-legal Reports
Subsequent application