KV (Sri Lanka) v Secretary of State for the Home Department, Court of Appeal - Civil Division, March 07, 2017, [2017] EWCA Civ 119,[2017] WLR(D) 159

Issuing Organization:Civil Division
Actores:KV (Sri Lanka) v Secretary of State for the Home Department
Resolution Date:March 07, 2017

Neutral Citation Number: [2017] EWCA Civ 119

Case No: C5/2014/3914




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 07/03/2017






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Richard Drabble QC, Ronan Toal and Charlotte Bayati (instructed by Birnberg Peirce and Partners) for the Appellant

Neil Sheldon (instructed by Government Legal Department) for the Respondent

Stephanie Harrison QC, Shivani Jegarajah and Ali Bandegani (instructed by Freshfields Bruckhaus Deringer LLP) for the Interested Party

Hearing dates: 17 & 18 January 2017

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Sales LJ:

1. This is an appeal from the decision of the Upper Tribunal (UT Judges Storey, Dawson and Kopieczek) (``the UT'') promulgated in 2014 - KV (scarring - medical evidence) Sri Lanka [2014] UKUT 230 (IAC) - whereby it re-made the decision on the appeal of the appellant against the decision of the Secretary of State refusing his claim for asylum, with the consequence that he should be removed to Sri Lanka, and dismissed that appeal. The appellant claims that he was tortured by the government authorities in Sri Lanka while in detention there between 2009 and 2011 during the former civil war, but that he managed to make his escape from detention and leave Sri Lanka by plane in 2011. He claims that he would face a real risk of persecution or serious ill-treatment if now returned there, on the grounds that there is a real possibility that the authorities would regard him as having been actively involved with the LTTE (known as the Tamil Tigers), the opposition in the civil war, and would by reason of that target him for ill-treatment if he went back to Sri Lanka.

2. The appellant's body is scarred on his back and upper right arm from what medical evidence indicates was the application of a heated metal rod. There are five scars on his back, which from their pattern are probably indicative of a lengthy heated metal rod being laid three times across his back with partial healing of what were originally three scarring burns. From their position, these scars could not have been inflicted by the appellant on himself. They are neat and sharply defined.

3. There are two scars on the appellant's arm. These are sharply defined in a similar way, so as to indicate that they too were probably inflicted by application of a heated metal rod, but the scars are less neat in appearance, which indicates that either the appellant's body moved while they were inflicted or they were inflicted with less care than the scars on his back.

4. An issue arose in the case whether the appellant might have arranged to have these burn scars inflicted on himself by someone else whilst under general anaesthetic, in what was referred to as ``self-infliction by proxy'' (``SIBP''). The UT took this case to be a suitable vehicle for consideration in general terms of the issue of SIBP as it might affect claims for asylum and having heard expert medical evidence bearing on the appellant's case it proceeded to issue guidelines for medical experts to take into account regarding the issue of SIBP when preparing expert evidence for use in asylum cases.

5. The UT had to assess the overall credibility of the appellant's account of what had happened to him in Sri Lanka, including his claims to have been tortured, in order to assess whether he would be subject to a real risk of ill-treatment if returned there now that the civil war has finished. Its assessment was carried out in the light of the latest country guidance case, which assesses the risk position for persons returning after the end of the civil war, and following the appropriate holistic or overall evaluative approach to assessment of future risk in light of claims by the asylum-seeker of what happened to him set out in the well-known authority of Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, CA.

6. A helpful summary of appellant's account is set out in a previous UT decision of 7 September 2012, as follows:

``The appellant ... arrived in the United Kingdom unlawfully and applied for asylum on 14 March 2011 based on a fear from the authorities because of his previous support as a Tamil for the LTTE. This had led to his detention following the surrender of many LTTE supporters in May 2009. The appellant was taken to Pambamadu detention camp where he was tortured and held until his escape with the assistance of a member of the EPDP who smuggled him out of the camp concealed in a lorry in February 2011. The appellant relies on scarring as evidence of that detention and torture. ...

As to the appellant's account, in summary, his father was a jeweller in Trincomalee. The appellant's father helped the LTTE through his business in 2002. The appellant started working for the LTTE in 2003 by valuing their jewellery they brought to him and he also helped dig bunkers and transport food. He started work as a jeweller in 2007 (the precise chronology is uncertain). In addition to this work the appellant pursued a course of study in Colombo where he lived in a house owned by his parents together with two LTTE members although their reason for being in Colombo is not clear. The appellant had previously made three unsuccessful applications for entry clearance to come to the United Kingdom as a student on 6 October 2006, 13 October 2006 and earlier on 27 June 2005. His case is that in the aftermath of an LTTE attack on Colombo Airport on 25 March 2007, one of the Tamils with whom he lived was arrested and the other had received a message from Vanni for him to return (it appears from the LTTE). The appellant decided to accompany him as he knew the authorities would be after him. There was no evidence of the appellant having previously encountered any difficulties from the authorities. On arrival in Vanni, the appellant stayed with his father's brother who was an LTTE member and started to help them. He ceased helping them in 2008. His arrest, as described above, followed on 10 May 2009 leading to his detention in Pambamadu. The EPDP member who facilitated his escape (called Sasi) had made contact with the appellant's parents. On his escape, the appellant was provided with a false Sri Lankan ID card in the name of a Muslim. He journeyed to Negombo where he was given a French passport and was accompanied by the agent through checks at the airport and who informed him not to claim asylum in France. He claims to have arrived in the United Kingdom on 24 February 2011. The agent called his uncle in the United Kingdom and after he was dropped off, that uncle made an appointment with the Home Office for the appellant to claim asylum. The appellant's mother's two brothers are also in the United Kingdom.''

7. The UT constitution which made the decision now under appeal found that there were many implausible or incredible elements in the factual account of the appellant in relation to his alleged relationship with the LTTE, how he had allegedly been picked up and detained by the authorities, how he had allegedly been treated in detention and how he said he had made his escape and then succeeded in leaving Sri Lanka. The UT's assessment was that the appellant would not be of significant interest to the Sri Lankan authorities if returned there and there would not be a real risk of his ill-treatment at their hands if he were returned.

8. Mr Drabble QC, who appears for the appellant on this appeal, does not suggest that there was anything improper or unlawful in the UT's assessment of the appellant's factual account. It is worth pointing out that the UT judges who sat on this appeal are experienced and expert in dealing with cases of this sort. Since there is no challenge on this appeal to the UT's assessment of these aspects of the appellant's account it is not necessary to go into them for present purposes. The full detail is set out in the UT's judgment. Clearly, without the scarring on his back and arm, the appellant's asylum claim appeal would have been dismissed by the UT and for perfectly proper reasons.

9. On this appeal, however, the appellant contends that the UT erred in its assessment of the significance of his scarring and the medical evidence in relation to his case. He also makes an application to adduce additional medical evidence in support of his asylum claim.

10. In addition, the Helen Bamber Foundation (``HBF''), a charity which campaigns against torture and provides assistance to asylum-seekers, was given permission to intervene in the UT and in this court. In this court, Ms Harrison QC for the HBF supported the submissions made by the appellant and contested the guidelines issued by the UT on assessment of injuries said to have been the result of SIBP. The guidelines are set out in an annex to this judgment.

The procedural background and the UT's judgment

11. The appellant is a national of Sri Lanka born in 1982. He arrived in the United Kingdom using a false passport on 24 February 2011. On 14 March 2011 he claimed asylum and had a screening interview. He was interviewed again on 22 March 2011. The Secretary of State did not accept his account of his treatment in Sri Lanka, including his claim that he had been tortured; nor did she accept his claim that he would be at real risk of serious ill-treatment if returned to Sri Lanka, and dismissed his asylum claim.

12. The appellant appealed to the First-tier Tribunal (``FTT''). In support of his appeal he adduced a medical report from Professor Sundara Lingam. The appellant's account to Professor Lingam was that he suffered all the burns on one day from application of heated metal rods, and that he felt pain and fainted. Professor Lingam stated in his report, in the proper way, that he understood his duty...

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