KV v The Secretary of State for the Home Department

Doctors preparing medico-legal reports on alleged torture must consider all possible causes of scarring, while remaining within their clinical expertise. Self-infliction by proxy cannot be excluded in principle or routinely. Where clinical or non-clinical presenting features make it a real, rather than fanciful, possibility, both the medical report and the fact-finder must engage with it.

Medical evidence may assist with clinical plausibility and alternative causes, but it does not determine the credibility of an asylum account or shift the burden of proof. The decision-maker must make a procedurally fair, holistic assessment of all the evidence. Scarring will ordinarily be dateable only within six to 12 months, although some cases may permit assessment up to two years.

The appellant, a Sri Lankan national, appealed against a removal decision after his asylum claim was dismissed by the First-tier Tribunal. He alleged detention and torture by Sri Lankan authorities, including burns from heated metal rods, and relied on medical evidence of scarring.

Upper Tribunal Judge Dawson set aside the First-tier Tribunal decision for a material error in its treatment of medical evidence. The remaking hearing before a three-judge Upper Tribunal considered extensive expert evidence and the intervention of the Helen Bamber Foundation. The central issues were the proper use of medico-legal evidence, whether self-infliction by proxy could be a possible cause of scars, and whether the appellant had established torture and future risk on the lower standard of proof.

1. Appeal dismissed. The Tribunal re-made the decision and dismissed the asylum and human-rights appeal. The appellant was not entitled to humanitarian protection.

2. Medico-legal experts should not decide matters outside their clinical expertise, but must consider all possible causes of scarring. Self-infliction by proxy (SIBP), meaning injury inflicted by another with the claimant’s consent, cannot be excluded as a possible cause either in principle or as a routine matter. The fact that SIBP may be clandestine means that a lack of reported examples does not establish its impossibility.

3. A medical report must engage substantively with SIBP where a presenting clinical or non-clinical feature makes it a real possibility. A mismatch between the account and the clinical features of the scars, or between the asserted circumstances of torture and established facts, may be such a feature. In the absence of such a feature, it is sufficient for the doctor to record that SIBP was considered but remains no more than remote.

4. The judicial fact-finder must address SIBP fairly where it is a real possibility, but need not make a definitive finding that it occurred. The claimant retains the burden of showing, on the lower standard, that torture was reasonably likely. Medical reports are valuable independent evidence, but they do not carry a conclusive or elevated status and cannot replace the holistic legal assessment of credibility.

5. Doctors may assess clinical plausibility and alternative medical causes, but should not conduct a general credibility assessment, act as advocates, or purport to be country experts. Scars cannot ordinarily be dated with precision beyond six to 12 months, although particular cases may permit assessment up to two years.

6. On the facts, the precise burn patterns and the appellant’s account of prolonged unconsciousness after the first burn disclosed a clinical mismatch. The Tribunal found his wider account implausible and inadequately explained. It was not reasonably likely that he had been detained or tortured as claimed. Applying GJ (post-civil war: returnees) Sri Lanka CG (Rev 1) [2013] UKUT 319 (IAC), he did not have a profile that would make him a present risk to the Sri Lankan authorities.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for material error of law by Upper Tribunal Judge Dawson on 7 September 2012. On remaking, the Upper Tribunal dismissed the appeal.
• First-tier Tribunal: First-tier Tribunal Judge Jhirad dismissed the appellant’s appeal against removal in a determination dated 18 May 2011.