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Supreme Court allows tortured Tamil asylum-seeker’s appealasad-khan

KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10 (6 March 2019)

In a recent judgment given by Lord Wilson the Supreme Court unanimously allowed KV’s appeal, remitting the matter to the UT for fresh determination. KV, a Sri Lankan asylum-seeker of Tamil ethnicity, claimed that the scars on his arm and back were the result of torture but his claim was still disbelieved on the basis that the scars were self-inflicted by proxy (SIBP), i.e. by another person at his invitation. While not a member of the Tamil Tigers, KV used to melt gold for the organisation. He claimed that Sri Lanka’s government detained and tortured him and tried to extract information about where the gold and other valuables were hidden. He contended that the government burned his arm with hot metal rods while he was conscious. The pain rendered him unconscious and during the time he remained unconscious hot rods were applied to his back. Upon regaining consciousness, his captors increased the intensity of his pain by pouring petrol on him and threatening to set him on fire. A few months later, his burnt skin healed into scars. Photographs he provided were deemed insufficient evidence and the decision-maker found inconsistencies in his narrative, noting that no medical evidence was provided in support of his claim of torture which was rejected. The FTT dismissed his appeal. The UT was unconvinced by KV’s evidence but it recognised that if his scarring was caused by torture then a real possibility arose that his story was true.

KV’s case was assisted by the expert evidence of Dr Zapata-Bravo who said that the scars were inflicted by burning with a hot metal rod. The scarring on the arm had blurred edges. But the scarring on KV’s back had such precise edges that he must have been unconscious while the burns were inflicted. Dr Zapata-Bravo concluded that his clinical findings were “highly consistent” with KV’s account of torture, and that it was unlikely the scars were SIBP. The UT’s determination and reasons, described by Lord Wilson as “a mammoth document” underpinned by “massive effort”, was against KV and dismissing his appeal UTJJ Storey, Dawson and Kopieczek held that it was clinically unlikely, given their precise edging, that (a) his scars could have been inflicted unless he was unconscious, and (b) that a person like KV could remain unconscious throughout multiple applications of hot metal rods to his arms and back, unless he was anaesthetised. The Court of Appeal held by a majority (Elias LJ dissenting) that the evaluation made by the UT was legitimately open to it and thus it could not be criticised as perverse or irrational, Moreover, it was beyond Dr Zapata-Bravo’s remit as an expert medical witness to state his opinion that his findings were “highly consistent” with KV’s claim of torture as a whole.

The Istanbul Protocol

The protocol imparts guidance to medical experts to indicate for each lesion the degree of consistency between it and the cause given by the patient, on a scale from “not consistent” to “diagnostic of”. It provides that “ultimately, it is the overall evaluation of all lesions, and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story”. Thus, in concluding that his clinical findings were “highly consistent” with KV’s claim of torture, Dr Zapata-Bravo had formulated his conclusion in accordance with the terms of the protocol.

The Supreme Court

Unanimously allowing the appeal, the Supreme Court described the Court of Appeal’s observations as “controversial”. The UT did not think that, in opining that his findings were “highly consistent” with KV’s claim of torture, Dr Zapata-Bravo had exceeded the boundaries of his role. The judges referred to authority supporting the principle that one of the functions of a medical report in relation to scars is to offer a clear statement in relation to their consistency with the history given. Equally, the Home Office did not complain to the Court of Appeal that Dr Zapata-Bravo’s views were professionally inappropriate in any way.

However, Sales and Patten LJJ had different ideas because he “trespassed beyond his remit as an expert medical witness into the area where it was for the UT to make an assessment of all the evidence.” Sales LJ held that any further guidance was unnecessary because the correct approach to instructing experts is found in the Practice Direction of the Immigration and Asylum Chambers of the First-tier and Upper Tribunal 2014. But Lady Hale, Lord Wilson, Lady Black, Lord Briggs and Lord Kitchin did not agree with Sales and Patten LJJ. Instead, they concurred with Elias LJ’s position that the majority had erred by holding that Dr Zapata-Bravo had exceeded the proper limit of his role in the manner alleged. Lord Wilson disagreed with two aspects of Sales LJ’s judgment, namely his very narrow construction of the word “trauma” in the protocol and his handling of Dr Zapata-Bravo’s oral evidence.

(i) Analysis

Lord Wilson said that the Home Secretary did not want to defend the majority’s position. Decision-makers’ difficult task of analysing whether scars are the really result of torture is such that they can legitimately receive assistance from medical experts who feel able to offer an opinion about the consistency of their findings with the asylum-seeker’s claim regarding the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained.

If Dr Zapata-Bravo only said that the scarring was caused by application of a hot metal rod, this would add nothing but the distinctions he drew between the scars on the back and the arm provided the UT assistance of significant potential value and the judges did not doubt his expertise. Keeping all this in mind, Lord Wilson overruled Sales LJ’s approach – namely that the references in para 187 of the protocol to the “trauma described” relate only to the mechanism by which the injury is said to have been caused – and held that:

  1. … That is too narrow a construction of the word “trauma”. It is clear that in the protocol the word also covers the wider circumstances in which the injury is said to have been sustained.

Notably, Sales LJ had himself quoted para 188 of the protocol which guides the expert towards the type of evaluation important in the assessment of “the torture story”. Furthermore, in formulating a clinical impression for the purpose of reporting evidence of torture, para 105 of the protocol recommends that experts should ask themselves six questions, including whether their findings are consistent with the alleged report of torture and whether the clinical picture suggests a false allegation of torture. Lord Wilson extracted para 122 of the protocol whereby “the purpose of the written or oral testimony of the physician is to provide expert opinion on the degree to which medical findings correlate with the patient’s allegations of abuse.”

Please see Part Two here.

This article was originally posted here.