S v Secretary of State for the Home Department [C5/2005/2286]
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX,LORD JUSTICE HOOPER,LORD JUSTICE AULD,Lord Justice Rix |
| Judgment Date | 05 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1153 |
| Docket Number | C5/2005/2286 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 July 2006 |
[2006] EWCA Civ 1153
Lord Justice Auld
Lord Justice Rix
Lord Justice Hooper
C5/2005/2286
[AIT No. AS/55879/2003]
MS S NAIK (instructed by Messrs Dare Emmanuel, LONDON E1 1DU) , appeared on behalf of the Appellant.
MS C NEENAN (instructed by the Treasury Solicitor, LONDON SW1 9JS) , appeared on behalf of the Respondent.
Judgement
This appeal concerns a 30-year-old woman from Ethiopia. She based her claim to refugee status and also protection from return under Article 3 of the European Convention on Human Rights on the following account, which for present purposes I limit to its essential kernel.
She said that her husband had been a prominent member of the Oromo Liberation Front ("OLF") in Ethiopia and that she had been a member, too; that in July 2002 security men had raided their home; that her husband had been shot dead in trying to escape; and that she had been hurt by shrapnel from a bullet or from flying debris and had lost consciousness and woke up to find herself in hospital. She accepted that at that time she was not herself the target of that raid, and indeed she made a formal complaint in due course after a full recovery from her injuries. That was in January 2003.
Despite the tragic loss of her husband, however, she then resumed her political activities and allowed them to become known to a street girl, Beletu by name, whom her mother had befriended and had taken into the house, but who had later informed on her. As a result she was arrested and detained in June 2003; kept in prison for some 40 days; raped on two separate occasions by her prison guards until ultimately she was released by them with the help of a friend, a Mr Zechious, who had bribed the guards as a preliminary to organising her escape from Ethiopia with the help of an agent.
She left Ethiopia on 3 September 2003 and arrived in this country on the same day. She entered with the assistance of a false passport. She claimed asylum on the following day. She explained that she had intended, with the help of the agent in whose hands she was, to go on to the United States and had only come to England in transit. However, she had then been left in the lurch in England by the agent, and thus claimed asylum here. That is the essence of her story.
On this appeal there is a single ground of appeal, which can perhaps be explained in the words of Sedley LJ when he gave permission for this appeal as follows:
"What Miss Naik now relies upon is a single aspect of the immigration judge's reasoning, namely that he had reached his finding of total disbelief of the applicant's account before turning, as he finally did at paragraph 60 of his decision, to the medical evidence which was, on any view, capable of corroborating much of that account."
That evidence was the report of a psychiatrist, Dr Steadman, who, being medically qualified, was entitled to report in addition on the consistency of a number of minor disfigurements with the account given by the applicant of having been hit by shrapnel and suffering a fall in the course of the assassination of her husband, together with her continuing symptoms of post-traumatic stress disorder.
In this connection Miss Naik, who continues to represent the appellant, relies principally so far as the law is concerned on Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367; [2005] INLR 377, in particular, what was said there about the error of artificially separating a consideration of an applicant's credibility from that of the medical evidence relevant to that applicant's case.
The decision in question on this appeal is that of the immigration judge, Mr Dineen, promulgated on 15 August 2005. At that determination the appellant was represented by different counsel. After certain preliminaries and addressing the standard of proof, the immigration judge came straight away to the appellant's evidence, which he set out in detail under the heading of "The Appellant's Evidence" at paragraphs 14 to 45 of his determination. Much of the detail of it does not matter for the purposes of this appeal. I have set out the account which the appellant relied upon in its essence, but I need to refer to certain additional aspects of it in order to provide the background to the ground of appeal with which we are concerned today.
Thus, dealing with the raid on her home in July 2002, the immigration judge at paragraph 22 recited her evidence as follows:
"The security men ransacked the house, but did not find any incriminating material. They argued with the appellant's husband. He tried to escape from them by going out through the back door of the house. In order to do so he had to run past the bed where the appellant was lying. One of the security officers, who was armed, fired shots at him. The appellant was hit by part of a bullet or flying debris, fell out of bed and lost consciousness. The next thing she was aware of was that she woke up in hospital, where she was told that her husband had been shot dead in this incident. She has scars on her left shoulder, and some injuries on the back and left-hand side of her head. She also sustained an injury to her right eye, and no longer has clear vision in it. She has scars on her face, particularly on the right hand side of her top lip where she had stitches. She experiences pain in the whole of her right leg, and often has difficulties in walking. She cannot fully bend her right leg. She suffers from swollen ankles. As a result of her fall, she injured her nose, which she had an operation on after she had been discharged from hospital. She suffers from memory loss, sleeping difficulties, nightmares and flashbacks of the events of that day."
I refer next to passages at paragraphs 38, 39, 41 and 42 of the determination. In those paragraphs the immigration judge recorded the appellant's evidence that she was extremely upset at having to leave her children and mother behind in Ethiopia, feared persecution because of her race and political opinion, and felt herself to be particularly at risk having escaped from prison. When questioned as to why it was that the authorities had taken an interest in her husband at the time when they did, she said that he was not known to the authorities prior to the time of the raid which led to his death, but that she believed that a friend, whose name she was unable to give, had informed on him. When asked why the security men were interested in her husband but not in herself, she explained that by saying they did not know about her activities, which were connected only with the women's side of OLF.
When asked to explain how her friend Mr Zechious had managed to contact her when in prison, by putting notes in her food essentially asking if she would co-operate in being taken out of the country, she said that the notes had been put on the inside of a sandwich, between the pancake which formed the outer layer of the sandwich and the sauce which formed the inner part of the sandwich. That was how the notes had escaped the attention of the guards, who had only looked at the outside of the food. When asked how the notes would have survived contact with the liquid sauce forming the inside of the sandwich, she stated that they were wrapped in plastic.
In his final paragraph dealing with the appellant's evidence, the immigration judge referred to the appeal bundle of 159 pages which the appellant's solicitors had submitted, containing what the judge described as, "subjective and objective evidence". That bundle of evidence contained Dr Steadman's report to which I now turn. The judge did not describe its findings in the detail to which I now refer to it, but I do so in order to do justice to Miss Naik's submissions. It is a lengthy report written by a consultant psychiatrist, who also holds himself out as competent as a doctor to describe physical injuries.
At page 8 of the report Dr Steadman refers to the appellant's account to him of the circumstances of the July 2002 raid in which she was injured. She told Dr Steadman that the security men had chased and shot at her husband. She could not remember exactly what happened next, but described losing consciousness and waking up in hospital. She was told later by neighbours that she had fallen out of bed. She said that:
"She was not hit by a bullet but the hospital staff told her that she was probably hit by flying debris from the bullets, which caused her to lose consciousness."
She went on to describe an injury to her nose, which she said had been broken, and although she had had, ten days after her discharge from hospital, an operation on her nose to remove some fleshy part of it in order to improve her breathing, she had had no operation or procedure to set or repair the fracture of the nose. Dr Steadman reports that the scars which the appellant said were as a result of assaults upon her included scars on top of her left shoulder extending downwards in an area approximately nine centimetres square, in which there were some 40 scars ranging in size between 0.1 centimetre in diameter and up to 1.4 centimetres by 0.6 centimetres. She referred to scars on the back of her head, which the doctor said he could not see as her hair was long; and also to the scars above her upper right lip. She described all these scars as being from the flying debris which had hit her. Dr Steadman then said at page 53:
"One has to explain the...
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