KV (Sri Lanka) v Secretary of State for the Home Department

In asylum claims relying on scarring, medical experts should give objective evidence within their expertise and should not decide the claimant’s overall credibility or whether torture occurred. The Istanbul Protocol is a useful medical reference, but it is not the governing legal code for assessing return risk. Experts need not routinely raise self-infliction by proxy (SIBP) unless the issue is raised or case features engage their duty to alert the tribunal. The tribunal must assess all evidence holistically and need not identify the actual alternative cause of scarring after rejecting the claimant’s account. Fresh evidence on appeal is subject to the ordinary CPR and Ladd v Marshall requirements. By a majority, the appeal was dismissed and the UT’s SIBP guidelines were treated as of no effect.

The appellant, a Sri Lankan national, claimed asylum on the basis that he had been detained and tortured by Sri Lankan authorities and that his scars resulted from burns inflicted with heated metal rods. The First-tier Tribunal dismissed his appeal. The Upper Tribunal allowed the appeal for error of law, reheard the matter, dismissed the asylum and human rights appeal, and issued general guidance on self-infliction by proxy in scarring cases: [2014] UKUT 230 (IAC).

Before the Court of Appeal, the appellant challenged the UT’s assessment of the medical evidence and sought to adduce fresh evidence. The Helen Bamber Foundation intervened and challenged the UT’s guidelines. The central questions were whether the fresh evidence should be admitted, whether the UT had lawfully assessed the medical evidence and SIBP possibility, and whether its general guidance was valid.

Majority

1. Sales LJ, with whom Patten LJ agreed, dismissed the application to adduce fresh evidence and dismissed the appeal. The appeal was by way of review, not rehearing, and intervention required a decision that was wrong or unjust because of a serious procedural or other irregularity under CPR Part 52.11.

2. Fresh evidence remained subject to the overriding objective in CPR Part 1 and the criteria in Ladd v Marshall [1954] 1 WLR 1489, as affirmed as powerful persuasive authority in Sharab v Al-Saud [2009] EWCA Civ 353. The proposed evidence could reasonably have been obtained for the UT hearing, would not probably have affected the outcome, and would require a retrial. Asylum cases were not a special class permitting a relaxed test.

3. The Istanbul Protocol provides useful medical categorisation, but it is not the governing or determinative legal code for assessing whether an asylum-seeker faces a real risk on return. The governing approach is the holistic assessment described in Karanakaran [2000] EWCA Civ 11. Medical experts must provide objective, unbiased evidence on matters within their expertise. The wider assessment of credibility, causation in the legal sense and future risk belongs to the tribunal.

4. Medical experts need not routinely consider SIBP where it has not been raised, unless a feature of the case engages their duty to alert the tribunal. A mismatch between the medical presentation and the claimant’s account may require the expert to address the clinical plausibility of the account. SIBP cannot be excluded as a possible cause merely as a matter of principle. The UT’s general guidelines were, however, to be treated as of no effect because case-specific expert evidence and paragraph 10 of the relevant Practice Direction provided the proper guidance.

5. The UT had applied the required holistic approach and was entitled to reject the appellant’s account on the medical and other evidence. It was not required to identify definitively how the scars were inflicted, consistently with AJ (Cameroon) [2007] EWCA Civ 373. Its factual assessment was not irrational or legally erroneous.

Dissent

Elias LJ agreed that the fresh evidence should be excluded and that no additional general guidelines were necessary. He would nevertheless have quashed the UT’s decision and remitted the case. In his view, where the only realistic explanations were torture or SIBP, the extreme rarity of SIBP required particularly robust evidence before the tribunal could adopt it. The UT had not adequately explained the differing appearance of the arm and back scars and had made an insufficiently supported medical finding about the appellant remaining unconscious after fainting. A fresh tribunal should reconsider the evidence.

• Court of Appeal (Civil Division) — [2017] EWCA Civ 119: by majority, dismissed the appeal, refused the fresh-evidence application and held that the UT’s SIBP guidelines were of no effect. Elias LJ dissented on the substantive disposal and would have quashed and remitted.
• Upper Tribunal (Immigration and Asylum Chamber) — KV (scarring – medical evidence) Sri Lanka, [2014] UKUT 230 (IAC): re-made the decision after setting aside the First-tier Tribunal’s decision, dismissed the asylum and human rights appeal, refused humanitarian protection and issued SIBP guidance.
• Upper Tribunal — on 7 September 2012, allowed the appeal for error of law and set aside the First-tier Tribunal’s decision for reconsideration.
• First-tier Tribunal — decision promulgated on 18 May 2011: dismissed the appellant’s appeal.