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On appeal from: [2017] EWCA Civ 119

This appeal considered what the correct approach is to the assessment of medical evidence in asylum claims alleging torture.

The Supreme Court unanimously allowed the appeal and remitted KV’s appeal against the refusal of asylum to the Upper Tribunal for fresh determination.

The Court considered the “Istanbul Protocol”, which guides 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”. Therefore the Court held that when Dr Zapata-Bravo, the medical expert in the Upper Tribunal, stated that the clinical findings were “highly consistent” with KV’s account, he had framed his conclusion in accordance with the Istanbul Protocol. The Court held that decision-makers 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 account about the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained. It also held that the conclusion about credibility then always rests with the decision-maker following a survey of all the evidence.

The Supreme Court concluded that the tribunal failed to take into account the fact that self-infliction of wounds is inherently unlikely and that there is evidence of extensive torture by state forces in Sri Lanka at the relevant time. It approved the view of Elias LJ in the Court of Appeal, that very considerable weight should be given to the fact that injuries which are self inflicted by proxy are likely to be extremely rare.

For judgment, please download: [2019] UKSC 10
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (10 Dec 2018 morning session) (10 Dec 2018 afternoon session) (11 Dec 2018 morning session)