Kv (Scarring - Medical Evidence)
| Jurisdiction | UK Non-devolved |
| Judge | RE |
| Judgment Date | 03 March 2014 |
| Neutral Citation | [2014] UKUT 230 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 03 March 2014 |
[2014] UKUT 230 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Dawson
UPPER TRIBUNAL JUDGE Kopieczek
For the Appellant: Ms C Bayati and Mr N Paramjorthy, Counsel, instructed by Vasuki Solicitors
For the Respondent: Mr P Duffy, Senior Presenting Officer
For the Interested party: Ms S Jegarajah and Mr C Yeo, Counsel, directly instructed
KV (scarring — medical evidence) Sri Lanka
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1. When preparing medico-legal reports doctors should not — and should not feel obliged to — reach conclusions about causation of scarring which go beyond their own clinical expertise.
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2. Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring.
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3. Where there is a presenting feature of the case that raises self-infliction by proxy (SIBP) as a more than fanciful possibility of the explanation for scarring:—
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(i) a medical report adduced on behalf of a claimant will be expected to engage with that issue; it cannot eliminate a priori or routinely the possibility of SIBP; and
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(ii) a judicial fact-finder will be expected to address the matter, compatibly with procedural fairness, in deciding whether, on all the evidence, the claimant has discharged the burden of proving that he or she was reasonably likely to have been scarred by torturers against his or her will.
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4. A lack of correlation between a claimant's account and what is revealed by a medical examination of the scarring may enable a medico-legal report to shed some clinical light on the issue of whether SIBP is a real possibility.
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5. Whilst the medical literature continues to consider that scarringcannot be dated beyond 6 months from when it was inflicted, there is some medical basis for considering in relation to certain types of cases that its age can be determined up to 2 years.
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6. Whilst if best practice is followed medico-legal reports will make a critical evaluation of a claimant's account of scarring said to have been caused by torture, such reports cannot be equated with an assessment to be undertaken by decision-makers in a legal context in which the burden of proof rests on the claimant and when one of the purposes of questioning is to test a claimant's evidence so as to decide whether (to the lower standard) it is credible.
OUTLINE:
The general issues
Nomenclature
The appellant
Case management and procedural issues
The hearing and post-hearing: procedural issues
Istanbul Protocol
The Appellant
The appellant's claim at interview
The reasons for refusal by the respondent
The appeal before the First-tier Tribunal
Further evidence on the appellant's claim
Family evidence
Professor Lingam: written report
David Rhys Jones: written; oral; supplementary written
Dr Frank Arnold: written; oral
Dr Enrique Zapata Bravo: written; oral
Dr Joy Odili: written; oral
Professor Cornelius Katona: written; oral
Dr Sonia Allam: written report
The appellant's GP
Medical Investigation Handbook written by Peel and others, 2005; Shedding light on a dark practice: Using the Istanbul Protocol to document torture, 2009 Handbook; Others
COI reports
Report by Appathurai Vinayagamoorthy, LLB (Col)
Written submissions
Oral submissions
The Tribunal's questions:
Distinguishability between scars inflicted by torture and scars inflicted by SIBP
Evidence of medical intervention/palliative care
Dating of scarring
Other questions
Effect of infections on fresh burn scarring wounds
Effect of infections on appearance of scars
Résumé
A priori rejection of SIBP as a possibility
SIBP and routine consideration
SIBP and human experience
SIBP and medical experience
Self-inflicted harm
SIBP and reasonable likelihood/real possibility
SIBP and reasonable likelihood
SIBP and real possibility
Procedural fairness
Medical reports and background COI
Medical reports and veracity
Evidential burden of proof
Psychological evidence
General aspects
Medical aspects
The evidence of Mr Vinayagamoorthy
The appellant's case raises a number of issues concerning medical evidence, in particular the issue of whether doctors and/or decision-makers, when assessing claimants who have scarring which they attribute to torture, need to consider the possibility that they have deliberately had their scarring inflicted by a third party acting with their consent. We apologise for its length but think this reflects the success of the parties in convincing us that the issues raised by the case were complex and were ones that have not been squarely addressed hitherto. From an early case management stage it became clear that the medical issues involved were ones which could potentially affect the work done by medical experts engaged in writing reports on the cases of asylum-seekers claiming to have suffered ill treatment in their country of origin. At that point Freedom from Torture (FFT), one of two organisations whose work in this field has been formally recognised by the Home Office (most recently in its Asylum Policy Instruction, Medico-Legal Reports from the Helen Bamber Foundation (HBF) and the Medical Foundation Medico-Legal Report Service, Version 3.0, 17 January 2014 which is reproduced as Appendix B of this determination), applied to intervene. Despite the Tribunal acceding to their request, they later chose to withdraw. We are fortunate that shortly after this, the HBF, the other main organisation in the field, sought to intervene and, upon our accepting them as an interested party, proceeded to submit a significant body of relevant materials covering the main issues that arise in this case. The appellant's representatives also assisted greatly. We are grateful too to Mr Duffy who took over the case at short notice. We particularly wish to record our gratitude to the doctors who gave evidence. We are acutely conscious that to do this they had to take time out from their onerous responsibilities. In the writing of the determination which follows all members of the panel have played a part.
We should clarify at the outset that, as we made clear at the case management stage, it is not our task in this case to re-examine the issue of the extent to which the fact that a Sri Lankan national has scarring constitutes a risk factor. This case is not a country guidance case and whilst we refer to Country of Origin Information (COI) relating to the methods of torture used by the Sri Lankan authorities - which include scarring - our concern about scarring is confined to its relevance to the credibility of an asylum claim made by someone who alleges that the authorities of his country of origin inflicted scarring on him.
Throughout this determination we use the acronym “SIBP”, which stands for self-infliction of injuries by proxy, meaning injuries caused by a third party at a person's invitation. That may not necessarily be an apt term in the asylum field where the focus is on actors of persecution or serious harm. If injuries are inflicted “by proxy” that means they have been inflicted by a third party;if inflicted by consent, then the adjective “self-inflicted” may confuse. We stick with the acronym nevertheless because that is what medical experts who gave evidence in this case chose to call it and we are anxious not to encroach on their terrain. When we refer to claims brought by “asylum seekers” or to “asylum claims” or “asylum cases”, we mean (unless otherwise clear from the context) to refer to claims or cases alleging that a person faces a real risk of persecution or of serious harm, or of ill treatment contrary to Article 3 ECHR. We should also mention that in this determination we refer to the person being examined by a doctor for the purposes of preparing a medico-legal report regarding his or her claim to have been the victim of torture variously as “individual”, “alleged victim”, “subject” or “patient”. In so doing we reflect, we believe, usages prevalent in the medical evidence presented to us, but we would emphasise that we are of course aware that such a person will often not be receiving treatment from the doctor concerned and so may not be a “patient” in that sense.
The appellant is a national of Sri Lanka born in 1982 and he appeals against the decision dated 1 April 2011 to remove him as an illegal entrant. It is his case that he arrived in the United Kingdom on 24 February 2011 on a passport in the name of another having previously applied for entry clearance as a points-based Tier 4 Student in 2005 and on two occasions in 2006. On 14 March 2011 he claimed asylum at the respondent's offices in Croydon and on 22 March 2011, he was interviewed substantively about that claim. His appeal against the removal decision was dismissed by First-tier Tribunal Judge Jhirad for reasons given in her determination dated 18 May 2011.
In a decision dated 7 September 2012, Upper Tribunal Judge Dawson found error in that determination and set aside the decision. A copy of his decision is at appendix A from which will be seen, he indicated that in re-making the decision, guidance would be given by the Tribunal on the approach to asylum...
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