HH (Ethiopia) v Secretary of State for the Home Department

Medical evidence in an asylum appeal must assist the fact-finder by addressing whether the physical or psychological condition is consistent with the account advanced. A medical expert should not express an overall opinion on the claimant’s credibility. That assessment belongs to the immigration judge, who must consider the medical report with the other evidence.

Mibanga [2005] EWCA Civ 367 does not impose a fixed order in which evidence must be considered. Its concern is a structural error: conclusively rejecting the central account before considering powerful, relevant medical evidence. Where that error is absent, and the medical evidence provides little support for the account, an adverse credibility finding may stand.

The appellant, an Ethiopian national, appealed against an Asylum and Immigration Tribunal decision dated 23 November 2005. The Tribunal had reconsidered an Immigration Judge’s dismissal of her asylum and Article 3 appeals under section 103A of the Nationality, Immigration and Asylum Act 2002.

Her claim relied on alleged persecution arising from her father’s and uncle’s OLF activities, and on her own alleged detention and ill-treatment. The Immigration Judge rejected her account, relying principally on her limited knowledge of the OLF and inconsistencies in her evidence. The appeal concerned the treatment of a medical report recording scars, depression and possible post-traumatic stress, including whether the judge had assessed that evidence in the round and whether it could properly be given little weight.

1. Appeal dismissed. The Immigration Judge had considered the alleged discrepancies, then the medical report, before reaching the final credibility conclusion. There was therefore no artificial separation of the medical evidence from the credibility assessment and no structural failing of the kind identified in Mibanga [2005] EWCA Civ 367.
2. No prescribed sequence of evidence. The Court agreed with the passage approved in S v SSHD [2006] EWCA CIV 1153: Mibanga does not impose a rule of law requiring fact-finders to consider evidence in a particular order. Its application depends on the nature of the error in the individual decision. Mibanga was described in S v SSHD [2006] EWCA CIV 1153 as an exceptional case because of the powerful and extraordinary medical evidence.
3. Proper function of medical evidence. A doctor may give evidence about the physical and psychological condition of an appellant and whether it is consistent with the account given. The doctor should not pronounce on the overall credibility of that account. Credibility is for the Immigration Judge, who must assess all the evidence, including the medical report.
4. Application to the evidence. The report did not materially support the appellant’s case. The scars were non-diagnostic and the described injuries would not typically leave permanent scarring. The diagnosis of post-traumatic stress and depression was entitled to little weight because it lacked specialist psychiatric evidence and substantially depended on accepting the appellant’s account. The Immigration Judge and the Tribunal were entitled to regard the medical evidence as having little real significance and disclosed no error of law.

There was a detailed assessment of the appellant’s publicly funded costs.

• Court of Appeal (Civil Division): The appeal was dismissed. Pill LJ and Moore-Bick LJ agreed with the reasons given by Keene LJ.
• Immigration Appeal Tribunal: On 23 November 2005, after reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002, the Tribunal upheld the dismissal of the appellant’s asylum and Article 3 appeals.