SA (Somalia) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Brooke,Lord Justice Moore-Bick
Judgment Date10 October 2006
Neutral Citation[2006] EWCA Civ 1302
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2006/0791
Date10 October 2006

[2006] EWCA Civ 1302

IN THE SUPREME COURT OF JUDICAT

COURT OF APPEAL (CIVIL DIVISI

ON APPEAL FROM IMMIGRATION APPEAL TRIBU

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Mark Potter The President of The Family Division and

Lord Justice Brooke

Vice President Court of Appeal and

Lord Justice Moore-Bick

Case No: C5/2006/0791

AS/15533/2004

Between:
Sa (Somalia)
Appellant
and
Secretary of State for The Home Department
Respondent

Sonali Naik (instructed by Messrs Dare Emmanuel Solicitors) for the Appellant

Charles Bourne (instructed by The Treasury Solicitor) for the Respondent

Sir Mark Potter, P:

Introduction

1

This is an appeal by SA against the decision of the Asylum and Immigration Tribunal ("The Tribunal") on 17 November 2005 dismissing his appeals against refusal of asylum and the Secretary of State's decision to remove him from the UK. The decision of the Tribunal was in turn a reconsideration of the determination of an adjudicator promulgated on 2 November 2004 dismissing the appellant's Immigration and Human Rights appeal from a decision of the Secretary of State refusing the appellant's application for asylum in the UK on the grounds of a well founded fear of persecution in Somalia. The Letter of Reasons was dated 21 July 2004.

2

The appeal involves a single point of law to the effect that, in considering the matter, both the adjudicator and the Tribunal failed to deal properly with certain medical evidence placed before them as corroborative of the claimant's account of his persecution in Somalia, in that they dealt with it on the basis stated to be incorrect by the Court of Appeal in the case of Mibanga v Secretary of State of the Home Department [2005] EWCA Civ 367; [2005] 1INLR 377.

Factual background

3

The appellant's case is that he is a member of the minority Bendabow sub-clan of the Benadir clan in Somalia, and that he suffered persecution as a result. He left Somalia for the Yemen in 1996 and came to the United Kingdom in 2004 where he claimed asylum. He claimed in particular to have suffered torture in Somalia. Before the adjudicator and in support of his claim to have been tortured, he produced an undated medical report in the form of a letter from a Dr Ashu Madan, a general practitioner in South- east London with whose practice the appellant registered at some stage after his arrival. That report described signs upon the appellant's account of his body of old injury, principally scarring, which it was submitted (although it was not so stated in the medical report) were corroborative of the appellant's treatment in Somalia. There was also produced a letter from the United Somali Benadir Council confirming the minority clan status of the appellant.

4

The adjudicator dismissed the claim of the appellant on the grounds of credibility.

5

On 13 December 2004, the Tribunal granted permission to appeal on the basis that the adjudicator arguably had "compartmentalised the medical evidence". However on 15 November 2005, upon full consideration, the Tribunal dismissed the appeal on the grounds that the medical evidence did not corroborate the case of the appellant.

6

Permission to appeal to the Court of Appeal was refused by the Tribunal on 13 February 2006 but was granted on paper by Maurice Kay LJ on 9 May 2006, confined to what was described as "the Mibanga point"

7

The appeal depends upon showing that the Tribunal should have allowed the appeal against the adjudicator's decision of 14 October 2004. It is thus common ground that for practical purposes the appeal is directed against the reasoning of the adjudicator and depends upon the contention that the adjudicator did not deal properly with Dr Madan's letter.

8

The Secretary of State denies that there was any error of law by the adjudicator given the particular facts and form of the doctor's letter. In the alternative he argues that, even if the principle in Mibanga was breached in this case, a different and proper approach by the adjudicator would not have affected the outcome. The latter point is made by way of a respondent's notice because it was not a reason expressed by the Tribunal.

9

It is pertinent to point out that, at the time of the adjudicator's decision, Mibanga had not been decided in the Court of Appeal and was therefore not available to the adjudicator by way of guidance.

The decision in Mibanga

10

Since the decision in Mibanga is the basis of the appellant's appeal in this case, I shall turn to it in a little detail. In that case the decision of an adjudicator was overturned by the Court of Appeal because, among other reasons, the medical evidence was not dealt with properly. The appellant claimed to be a refugee from persecution in the Congo and claimed to have suffered torture including the passage of an electrical current through his genitals. He relied on the report of Dr Norman, a doctor with special expertise in genito-urinary medicine, who was a part-time worker for the Medical Foundation for the Care of the Victims of Torture. She observed a mass of scars on his body, including two on his penis. Her report expressly addressed the question of the veracity of the history given by the appellant. She reported that a number of scars were consistent with beatings with a belt; that multiple circular scars on the legs and arms were consistent with bites from leeches on an occasion when, according to the appellant's account to her, he had by way of punishment had been thrown into a barrel of leeches; that scars on his legs were consistent with being kicked with booted feet; and in particular the scars underneath his penis were consistent with having being tortured by the application of electrodes to his genitals. She went on to say that, in her opinion, the veracity of the appellant's history was increased by his insisting that two of the scars had an innocent explanation; and that his emotional state when giving her his history, in the course of which he had at one point burst into tears and had been unable to speak for several minutes, was also, in her view, consistent with the history of torture which he had given to her (see paragraphs [12] and [13] of the judgment of Wilson J) .

11

The adjudicator in Mibanga had made eleven findings that aspects of the appellant's claims of persecution were not credible and, at that point in her determination, turned to Dr Norman's report. She said as follows:

"The medical evidence does not assist the appellant. The medical evidence, whilst noting the number and location [and] size of numerous scars on the appellant and his current, assessed to be fragile, mental state, does not consider, or deal with whether the scars could be the result of anything else, for example, childhood illness or skin disease. I conclude that the medical evidence does not assist in establishing the appellant's case and the doubts I have expressed on the credibility of the fundamental aspects of his claim have not been resolved by the medical evidence in any sense."

In a later passage, the adjudicator affirmatively asserted that the scars could "well be" from childhood disease, and not skin disease or illness. (see paras [15] and [16] of judgment) .

12

At paragraphs [24]-[26] of his judgment, Wilson J ruled that this approach involved an error of law, in that the adjudicator as fact finder had reached her conclusion before surveying all of the relevant evidence. He stated at paragraph [24] that:

"…What the fact-finder does at his peril is to reach a conclusion by reference only to the appellant's evidence and then, if it be negative, to ask whether the conclusion should be shifted by the expert evidence."

Wilson J referred to a statement in a decision in the Immigration Appeal Tribunal in the earlier decision of HE (DRC-Credibility and Psychiatric Reports) [2004] UKIAT 00321 at para 22 that:

"Where the report is specifically relied on as a factor relevant to credibility, the adjudicator should deal with it as an integral part of the findings on credibility rather than just as an add-on, which does not undermine the conclusion to which he would otherwise come."

13

At paragraph [25] of his judgment Wilson J concluded that the adjudicator had fallen into error when:

"She addressed the medical evidence only after articulating conclusions that the central allegations made by the appellant were, in her extremely forceful, if rather unusual phraseology, "wholly not credible". Furthermore, she said that she considered that the evidence did not assist her because of her belief that the scars could well be reflective only of illness or disease. Although I accept that the fact that the appellant had identified only two of the scars as being thus reflective did not establish that the others were inflicted in the course of torture, it does – and here I choose my words with care in the light of what I will be proposing to my Lords as the proper disposal of the appeal – seem at first a little unlikely that, to take one example, the scars underneath the penis were the result of illness or disease rather than of torture of the genitals, with which, by reference to a book on the medical documentation of torture, the doctor had regarded them as consistent. Unusually, the adjudicator's determination had not included the usual express reminder to herself for the requisite standard of proof. Had she had that standard even more in the forefront of her mind; had she in particular considered the scars on the penis and also, perhaps, the multiple linear scars on the back; and above all, if she had conducted her reference to the doctor's evidence at the right forensic times; then it is at least possible...

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