KV v Secretary of State for the Home Department

Medical experts assessing alleged torture may give an opinion on whether clinical findings are consistent with the claimant’s account of the wider circumstances in which injuries were sustained. Their role is not confined to identifying the immediate mechanism of injury.

The decision-maker retains responsibility for credibility and must assess all the evidence against the asylum standard of a real possibility. Where torture and self-inflicted injury by proxy are the only realistic explanations, their relative likelihood must be compared. The decision-maker must address material medical distinctions and the inherent rarity and practical difficulties of self-inflicted injury by proxy before rejecting torture.

A Sri Lankan Tamil asylum-seeker alleged that government forces had tortured him by branding him with hot metal rods. Medical evidence described the resulting scars as highly consistent with his account. The Upper Tribunal nevertheless concluded that the wounds were self-inflicted by proxy and dismissed his appeal: [2014] UKUT 230 (IAC).

By a majority, the Court of Appeal dismissed his further appeal: [2017] EWCA Civ 119; [2017] 4 WLR 88. It also stated that a medical expert should ordinarily address only the immediate mechanism of injury, rather than the wider account of how it occurred.

The Supreme Court considered the proper scope of expert medical evidence in alleged torture cases and whether the tribunal’s reasoning contained an error of law requiring the asylum appeal to be determined afresh.

1. Appeal allowed unanimously. Lord Wilson delivered the judgment, with which Lady Hale, Lady Black, Lord Briggs and Lord Kitchin agreed. The tribunal was directed to determine the asylum appeal afresh.

2. The Court of Appeal’s restriction on the role of medical experts was erroneous. An expert acting within the expert’s competence may assess whether clinical findings are consistent with the asylum-seeker’s account of the wider circumstances in which scarring was sustained. The inquiry is not confined to the immediate mechanism of injury. Correlating differences between scars with the alleged sequence of torture may provide evidence of significant value.

3. The Istanbul Protocol uses “trauma” to include the wider circumstances in which an injury was allegedly sustained. Its focus upon the overall pattern of lesions and the torture account confirms that construction. Practice Direction 10 remained binding, including its prohibition on opinions outside the expert’s expertise, but it did not address the investigation of torture. For that specialised purpose, the Istanbul Protocol was equally authoritative.

4. An expert’s classification at either extreme of the Istanbul Protocol scale may be tantamount to belief or disbelief concerning the described cause of an injury. The intermediate categories do not authorise an expert to express belief in the account. Final responsibility for credibility always rests with the decision-maker after critical assessment of all the evidence. In an asylum claim, the decision-maker asks whether there is a real possibility that the account is true and need not form an overall belief in its truth.

5. The tribunal materially misunderstood the medical evidence when it failed to address the different appearance of the arm and back scars. The expert had consistently regarded that difference as supporting the alleged sequence of conscious and unconscious branding. An appellate court should not assume that an apparent first-instance mistake was resolved by unrecorded oral evidence.

6. Having identified torture and self-inflicted injury by proxy as the only realistic possibilities, the tribunal had to compare their likelihood before rejecting either. It failed adequately to weigh the extreme pain involved, the need for assistance and anaesthesia, the probable need for unethical medical cooperation, the general rarity of such conduct, and the unexplained location, presentation and number of the wounds. Its reasoning therefore could not sustain the rejection of torture.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and directed that the asylum appeal be determined afresh: [2019] UKSC 10.
2. Court of Appeal: By a majority, dismissed the appeal from the Upper Tribunal: [2017] EWCA Civ 119; [2017] 4 WLR 88. Elias LJ dissented and would have remitted the case for fresh determination.
3. Upper Tribunal: Dismissed the asylum appeal after a rehearing and concluded that the claimant had not shown his torture account to be reasonably likely: [2014] UKUT 230 (IAC).
4. First-tier Tribunal and Upper Tribunal: The First-tier Tribunal initially dismissed the appeal. The Upper Tribunal found an error of law and directed a rehearing before a three-judge panel of the Upper Tribunal.