KV (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lady Hale,Lady Black,Lord Briggs,Lord Kitchin |
| Judgment Date | 06 March 2019 |
| Neutral Citation | [2019] UKSC 10 |
| Court | Supreme Court |
| Date | 06 March 2019 |
[2019] UKSC 10
Lady Hale, President
Lord Wilson
Lady Black
Lord Briggs
Lord Kitchin
Supreme Court
Hilary Term
On appeal from: [2017] EWCA Civ 119
Appellants
Richard Drabble QC
Ronan Toal
Michelle Brewer
Charlotte Bayati
(Instructed by Birnberg Peirce)
Respondent
Neil Sheldon
Matthew Hill
(Instructed by The Government Legal Department)
Interveners
Stephanie Harrison QC
Ali Bandegani
Mark Symes
(Instructed by Freshfields Bruckhaus Deringer LLP)
Interveners:
• Helen Bamber Foundation
• Freedom from Torture
• Medical Justice
Heard on 10 and 11 December 2018
( with whom Lady Hale, Lady Black, Lord Briggs and Lord Kitchin agree)
KV, a national of Sri Lanka and of Tamil ethnicity, comes to the UK and claims asylum. He alleges that he was tortured by government forces there in the course of detention on suspicion of association with the LTTE (“the Tamil Tigers”). He has five long scars on his back and two shorter scars on his right arm, all of which were on any view the product of branding with a hot metal rod. He contends that they are evidence of the torture. But the tribunal in effect concludes that the scars represent wounding which was Self-Inflicted By Proxy (“wounding SIBP”), in other words which was inflicted by another person at KV's own invitation in an attempt on his part to manufacture evidence in support of a false asylum claim. It dismisses his appeal against the refusal of asylum. By a majority the Court of Appeal, [2017] EWCA Civ 119, [2017] 4 WLR 88, dismisses his further appeal and, in doing so, makes controversial observations about the limit of the role of a medical expert in contributing to the evidence referable to a claim of torture. Now KV brings a third appeal to this court. This court must address the Court of Appeal's controversial observations. They raise the point of general public importance which precipitated the grant to him of permission to appeal. But the disposal of his appeal will instead depend on whether he persuades us of an error of law, in particular an error of reasoning, in the dismissal of his appeal on the part of the tribunal.
KV was born in 1986 and lived in Sri Lanka until his arrival in the UK in February 2011. He made his claim for asylum promptly. In March 2011 he was interviewed on behalf of the Home Office. His account was
(a) that he had worked in his father's jewellery shop;
(b) that in 2003 he had begun to assist the Tamil Tigers in valuing jewellery which its members had brought to him and, with his father, in melting their gold at their request;
(c) that, while never having been a member of the Tamil Tigers, he had continued to assist in those ways until 2008;
(d) that government forces had arrested him in May 2009 and detained him in a camp until, with outside help, he had escaped from it in February 2011; and
(e) that during his detention they had beaten him with gun butts or wooden poles every few days and, having learnt of the assistance given by him to the Tamil Tigers in respect of its gold and other valuables, had thereby sought to extract information from him about where they were kept.
At the interview KV produced photographs of the scars on his back and right arm which, he said, were the product of an occasion of torture in about August 2009. It is important to note that in this initial interview his account, to which he has consistently adhered, was that his captors had first applied hot metal rods to his arm while he was conscious; that the pain had rendered him unconscious; that, while he remained unconscious, they had applied the rods to his back; that, when he regained consciousness, they had further increased the severity of the pain by pouring petrol on him and threatening to set him alight; and that some three months had elapsed before the skin had healed into scars.
Later in March 2011 the Home Office refused KV's claim for asylum. It identified various perceived inconsistences in his account; and, in relation to his scars, it noted that he had produced no medical evidence in support of his account of torture, which it did not accept.
In May 2011 the First-tier Tribunal dismissed KV's appeal against the refusal of his claim for asylum. But the Upper Tribunal held that an error of law had vitiated the dismissal and it directed that the appeal be reheard. It then identified the appeal as an appropriate vehicle for the issue of general guidance to medical experts invited to analyse scars allegedly caused by torture, in particular if suggested on the contrary to represent wounding SIBP; and so the appeal was directed to be heard by a panel of judges in the Upper Tribunal itself.
In the event the appeal was heard over three days by three of the most experienced judges of the Upper Tribunal, namely Judge Storey, Judge Dawson and Judge Kopieczek. The tribunal (as the Upper Tribunal will hereafter be described) permitted a charity, the Helen Bamber Foundation (“the HBF”), to intervene in the appeal. The HBF is recognised by the Home Office as a responsible provider both of expert support and treatment to those who have suffered torture or other serious harm and of medical reports intended to help UK public authorities to determine whether allegations of such suffering are true.
On 22 May 2014 the tribunal explained its dismissal of KV's appeal in a mammoth document, entitled “Determination and Reasons” which contains 368 paragraphs on 78 pages, [2014] UKUT 230 (IAC). Massive effort on the part of each of the three judges plainly underlies the determination. As a result of it the tribunal issued six propositions of general guidance to those preparing medico-legal reports in relation to scars borne by asylum-seekers who allege them to be the product of torture and particularly when, on the contrary, wounding SIBP is more than a fanciful possibility. The Court of Appeal, however, considered that wounding SIBP was generally so unlikely that it was inappropriate to issue the guidance. In particular the court disagreed with the apparent suggestion in the guidance that medical experts should routinely consider it even when not canvassed by the Home Office as being a reasonably possible explanation of the asylum-seeker's scarring. So the court directed that the tribunal's guidance be treated as of no effect. This court has not been invited to review whether it was right to jettison it.
The tribunal subjected KV's evidence, together with that of his two brothers and his uncle, to appropriately rigorous analysis. It recognised that throughout the three years since his arrival in the UK his accounts of his experiences in Sri Lanka had been broadly consistent and that background country information, including that set out in para 32 below, had confirmed the existence of a practice on the part of state forces there of torturing detainees by burning them with soldering irons. It nevertheless concluded that various aspects of his evidence were unconvincing, including in relation to his alleged work for the Tamil Tigers, the frequency and severity of his alleged beatings during the years of his alleged detention, the circumstances of his alleged escape and the surprising immunity of his father from arrest and detention. But the tribunal's substantial reservations about KV's credibility recede into the background in the light of its helpful identification of the central issue as follows:
“337. … If the appellant's scarring was caused by torture in detention then the possibility of the appellant's account being true, notwithstanding the identified shortcomings, becomes a real one.”
The tribunal thereupon embarked upon a detailed analysis of the medical evidence referable to KV's scarring, to some of which it will be necessary to return. Its conclusion was as follows:
“364. … In relation to the medical evidence, we have found that whilst it assisted in eliminating some possible causes, it left us with only two that were real possibilities: that the appellant was tortured as claimed; that his scarring was SIBP. Of these two real possibilities, we have found, on analysis, that the former claim does not withstand scrutiny. Certainly we cannot say in his case that the evidence inexorably points to SIBP, but given that we have concluded it is left as the only real possibility that we have not been able to discount, taking the evidence as a whole, we are satisfied that he has not shown his account is reasonably likely to be true.”
Thereupon the tribunal volunteered an emphatic rejection of almost all of KV's evidence:
“365. … We find that after 2003 he … remained in Colombo and at no stage then or thereafter did he come to the adverse attention of the army or police before coming to the UK.”
One should respectfully place a question-mark against the tribunal's disclaimer in para 364 of any conclusion that the evidence inexorably pointed to wounding SIBP. If your inquiry into the disputed circumstances of a past event leads you to conclude that there are only two real possibilities and if you then proceed to reject one of them (indeed in this case to reject it in terms which could not be more absolute: see para 365), you are necessarily concluding that the other real possibility represents what happened.
KV presented several pieces of medical evidence to the tribunal but much of it proved to be of limited use. The most important was that given by Dr Zapata-Bravo. He...
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