JL v The Secretary of State for the Home Department

Medical evidence in an asylum appeal may corroborate an appellant’s account and remains independent evidence even where the expert has relied substantially on the appellant’s history. That reliance may reduce its weight, but does not remove its evidential status.

Experts must provide an objective analysis, consider alternative causes, and leave the ultimate legal assessment of credibility to the Tribunal. A judge must nevertheless assess medical evidence as part of the overall credibility evaluation and may not exclude expert evaluation of the compatibility between injuries or symptoms and the alleged ill-treatment.

Where an appellant is vulnerable, the Tribunal must consider whether that vulnerability explains discrepancies in the evidence.

The appellant, a Chinese national, appealed against the First-tier Tribunal’s dismissal of her asylum and human-rights appeal. She alleged detention, torture and rape in China because of an alleged association with a suspected Taiwanese spy.

The First-tier Tribunal rejected her account and gave limited weight to medico-legal evidence from Dr Hartree of the Helen Bamber Foundation. It accepted that the appellant might have mental-health difficulties and had suffered domestic abuse in the United Kingdom, but did not treat those matters as capable of explaining inconsistencies in her account.

The central issues were whether the judge had lawfully assessed credibility, vulnerability and the medical evidence, including its status as independent evidence and its relevance to the claimed torture.

1. The appeal was allowed. The First-tier Tribunal had made material errors of law. Its decision was set aside and a further hearing was directed.

2. A judge may rely on reasons given in a refusal letter, but must explain why those reasons are considered to carry weight. It was insufficient to call the respondent’s reasons “cogent” without transparently addressing them.

3. Having accepted that the appellant might be vulnerable, the judge had to apply the Joint Presidential Guidance Note and consider whether vulnerability could explain inconsistencies or deficiencies in her account. That duty applies to written records as well as oral evidence.

4. The ultimate assessment of credibility is a legal appraisal for the Tribunal. However, it was erroneous to treat any medical evaluation bearing on credibility as outside an expert’s proper function. A medical report may assess the compatibility of scars, symptoms and mental condition with the history given. Under the Istanbul Protocol, the overall evaluation of lesions is important and alternative explanations should be considered.

5. A report does not cease to be independent evidence merely because the expert has received the appellant’s account. The extent of dependence on that account goes to weight. The judge had artificially given the report little or no weight because of a mistaken view of its legitimate role.

6. The judge was also wrong to cast doubt on Dr Hartree’s expertise without properly recognising her work for a medical centre acknowledged by UKBA as having relevant expertise in torture assessments. The further hearing was to permit any concerns about her evidence to be put directly to her, to consider credibility and the weight of the medical evidence, and to receive an updated medical report.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on an error of law, set aside the First-tier Tribunal’s decision, and directed a further hearing.
• First-tier Tribunal: Dismissed the appellant’s asylum and human-rights appeal in a determination sent on 26 April 2012.