Supreme Court reasserts the role of medical experts in asylum claims by torture survivors

Wednesday 6 March 2019

The appellant was represented by Ronan Toal and Michelle Brewer. Stephanie Harrison QC, Ali Bandegani and Mark Symes for the interveners.

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In a landmark judgment, the Supreme Court has ruled that the lower courts were wrong to override the conclusions of a medical expert when considering forensic evidence of torture in an asylum claim.

An asylum seeker from Sri Lanka, known as ‘KV’, appealed a Home Office decision to refuse his asylum claim. Expert medical opinion assessing evidence of torture and presented to the Tribunal concluded that the physical evidence of torture, mainly comprising scarring from having hot metal rods applied to his skin, was highly consistent with his account of torture.

The asylum tribunal dismissed his asylum appeal, ruling that ‘self-infliction by proxy’ (i.e. the infliction of injuries by a third party in order to leave fabricated evidence of torture scarring) had not been conclusively ruled out. The Court of Appeal upheld this finding and went even further in saying the medical expert had ‘trespassed’ into the territory of the decision-maker.

Three leading organisations with expertise in assessing evidence of torture: Freedom from Torture, the Helen Bamber Foundation, and Medical Justice, jointly intervened in the case at the Supreme Court. The organisations were assisted pro bono in their joint intervention by Stephanie Harrison QC, Ali Bandegani and Mark Symes, all of Garden Court Chambers and who were instructed by Ramya Arnold, Daniel Hunt and Craig Montgomery of Freshfields Bruckhaus Deringer LLP. The appellant was represented by Ronan Toal and Michelle Brewer of Garden Court Chambers, Richard Drabble QC of Landmark Chambers and Charlotte Bayati of Goldsmith Chambers, all of whom were instructed by Arun Gananathan of Birnberg Peirce.

The Supreme Court recognised that the Istanbul Protocol, the internationally recognised standards for documenting torture and ill-treatment endorsed by the United Nations, is 'equally authoritative' to the Tribunal's Practice Direction on the duties of experts when it comes to cases involving allegations of torture. The Court of Appeal was wrong to conclude that medical experts should limit themselves to documenting the immediate cause of each individual scar without coming to any conclusion about the overall clinical picture and its consistency with the account of torture. The Supreme Court also stated that evidence of ‘self-infliction by proxy’ on the part of asylum seekers is “almost non-existent”.

Sonya Sceats, Chief Executive of Freedom from Torture said:

“Today’s judgment emphatically reasserts the role of the medical expert in assessing evidence of torture in asylum claims. Deplorable efforts by decision-makers to dismiss this evidence are another symptom of the culture of disbelief that is the hallmark of the hostile environment. We should all be shamed by the almost impossible battle that torture survivors in the UK face to prove they have suffered torture. The UK has a proud tradition of offering safety to those in need and there can be none more deserving than a person fleeing torture. This judgment is a wake-up call for all asylum decision-makers tasked to ensure that no one is forced to return to a risk of further torture.”

Theresa Schleicher, Casework Manager at Medical Justice said:

“Medical evidence of torture frequently makes the difference between someone having their asylum request refused, being detained and being removed to the risk of being tortured again and them being able to start a new life, in the UK, safe from persecution. To be able to produce this evidence, clinicians need to be able to assess the full clinical picture and to what extent it is consistent with the reported torture history. We welcome today's judgment finding that that is indeed the role of the medical expert assessing evidence of torture. Survivors of torture also suffer if they are detained again in the UK. Evidence of torture is therefore a crucial part of any safeguard protecting vulnerable people from inappropriately being detained. Our doctors frequently see survivors of torture in immigration detention in the UK who are being retraumatised by detention. We document the evidence of their past torture as well as the effects their current detention. Today's judgment means we will be able to continue doing this and help protect survivors from further harm.”

Kerry Smith, Chief Executive, Helen Bamber Foundation said:

“The unanimous judgment of the Supreme Court highlights the clear value of expert medical evidence to decision makers in assessing both physical and psychological evidence of torture. This is a victory for those seeking international protection. The Supreme Court found that expert medical evidence can be pivotal in a case where the individual has suffered torture. This judgment is critical in reaffirming the UK’s strong tradition of protecting refugees. The responsibility of asylum decision makers is to make sure that no-one who has suffered extreme human cruelty is returned to face further risk of harm.  We welcome today’s judgment in acknowledging the support offered by experts in discharging this critical duty.”

The full judgment can be found here: KV (Sri Lanka)(Appellant) v Secretary of State for the Home Department (Respondent)

Ronan Toal, Michelle Brewer, Stephanie Harrison QC, Ali Bandegani and Mark Symes are members of the Garden Court Chambers Immigration Team.

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