Upper Tribunal (Immigration and asylum chamber), 2014-05-23, [2014] UKUT 230 (IAC) (KV (scarring - medical evidence))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Storey, Upper Tribunal Judge Dawson, Upper Tribunal Judge Kopieczek |
| Status | Reported |
| Date | 23 May 2014 |
| Published date | 23 May 2014 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 03 March 2014 |
| Subject Matter | scarring - medical evidence |
| Appeal Number | [2014] UKUT 230 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
KV (scarring - medical evidence) Sri Lanka [2014] UKUT 00230 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 3 and 4 February and 3 March 2014 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE DAWSON
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
KV
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
THE HELEN BAMBER FOUNDATION
Interested party
Representation:
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
© CROWN COPYRIGHT 2014
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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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Doctors preparing medico-legal reports for asylum seekers must consider all possible causes of scarring.
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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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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
(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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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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Whilst the medical literature continues to consider that scarring cannot 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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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.
DETERMINATION AND REASONS
OUTLINE:
INTRODUCTION
The general issues
Nomenclature
The appellant
Case management and procedural issues
The hearing and post-hearing: procedural issues
Istanbul Protocol
THE EVIDENCE
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
Expert 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
Other Medical Documentation
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
Background Country Evidence
COI reports
Report by Appathurai Vinayagamoorthy, LLB (Col)
SUBMISSIONS
Written submissions
Oral submissions
DISCUSSION
Istanbul Protocol
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
SIBP
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
ASSESSMENT OF THE APPELLANT’S APPEAL
General aspects
Medical aspects
The evidence of Mr Vinayagamoorthy
Conclusion
APPENDIX A: Error of law decision
APPENDIX B: Home Office Policy Instructions on Medico-Legal reports, January 2014
INTRODUCTION
The general issues
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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.
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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.
Nomenclature
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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...
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