Introduction
KV is a Sri Lankan national. He came to the UK and claimed asylum in 2011. He stated that he had been tortured by the authorities as a result of his familial connections with the LTTE.[3] Body maps produced alongside a medico-legal report by a medical expert in support of KV’s claim detailed extensive scarring on his back and shoulders. The pattern of scarring was in keeping with the style of torture seen in many other Sri Lankan cases.[4]
However, in a 2011 Home Office information report on Sri Lanka, it was recorded that someone linked to the Sri Lankan Government had told a British Official that ‘many Sri Lankans who had claimed asylum abroad had inflicted wounds on themselves in order to create scars to support their stories.’[5] The developed nomenclature for this phenomena is ‘Self Infliction by Proxy’ (‘SIBP’)
The UK Home Office (‘UKHO’) dismissed KV’s asylum claim in 2011, determining that as his subjective evidence was not reliable, there was no evidence to how he received such extensive scarring.
In 2011, the First-tier Tribunal (Immigration and Asylum Chamber) (‘FtT’) dismissed KV’s appeal. The Immigration Judge agreed with the UKHO that KV was not a credible witness. The FtT could not therefore also find that his attribution for his scarring was credible. The question of what caused the scarring remained unanswered. SIBP was suggested as being a possibility. Permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) (‘UT’) was granted in 2013.
On behalf of the Helen Bamber Foundation (‘HBF’)[6] in 2013-14, I instructed three medical experts[7] and two direct access barristers[8] in order to intervene and help the UT understand the process of producing medico-legal evidence. Permission to intervene was granted on the basis that the UT was constituted to not only decide the asylum appeal, but to also consider the role of expert medical evidence in asylum appeals and then issue guidance to medical experts in asylum applications and appeals.
The UT dismissed the appeal[9] concluding that KV had not proven that his account was reasonably likely to be true. Within their lengthy determination of 368 paragraphs, the UT also set out new guidance for medical experts.[10]
Following the promulgation of the UT’s determination, permission to appeal to the Court of Appeal (‘CoA’) was sought and granted. I continued to act on behalf of HBF. However, given both the importance of the issue and the time required to substantively deal with this extensive and complex intervention, I became the client and instructed Freshfields Bruckhaus Deringer on behalf of HBF.
In March 2017, the CoA comprised of Lord Justices of Appeal, Elias, Pattern and Sales determined the case of KV. In dismissing the appeal, Sales, LJ delivered the lead judgment with support from Patten, LJ. Sales, LJ concluded that KV may have paid a third party to inflict burns onto his back and thus attempt to give rise to an asylum claim by providing false allegations of torture.
It was explained at the outset of the judgment of Sales, LJ that:
‘The UT … 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.’[11]
Sales, LJ continued:
‘ … 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.’[12]
The issues firmly under appeal clearly relate to how the expert evidence was treated and to what extent the medical evidence was or could be helpful to the just determination of this matter.
Elias, LJ summed up his own dissenting position in respect of SIBP by stating that ‘the Tribunal’s conclusion was, in effect, that the appellant had allowed himself to be anaesthetised and then branded with a hot metal rod. If not a moral judgment, it is certainly demeans the appellant. In my judgment the evidence needed to be particularly robust to justify such an unlikely conclusion. In my view it was not.’
KV appealed to United Kingdom Supreme Court (‘UKSC’). The matter was heard over two days on 10 and 11 December 2018. As of 11 January 2019, the UKSC has not handed down Judgment. The central question for the UKSC is: ‘What is the correct approach to the assessment of medical evidence in asylum claims alleging torture?’[13]
In this essay, I seek to answer the set question by initially defining torture and reviewing the domestic legal context faced by people making torture claims.
In the second section, I review the burden and standard of proof required in asylum claims.
In the third section I consider the Istanbul Protocol; First-tier Tribunal and Upper Tribunal (Immigration and Asylum Chamber) Tribunal Practice Directions; and the policies published by the UKHO in regard to medical evidence.
In the fourth section I review the application of these issues within KV.
Finally, I draw conclusions and make recommendations.
It is important to note first, that how medical evidence is treated by the UKHO and HM Courts and Tribunals Services (‘HMCTS’) has been examined by civil society and so a possible answer to this answer has been given. Freedom from Torture (‘FfT’) published ‘Proving Torture’[14] in 2017 and argued, based on their research that expert medical evidence is often incorrectly dealt with by UKHO asylum caseworkers.[15] In an article for the International Journal of Refugee Law, Wallace and Wylie wrote that the UKHO would question and disregarded the expertise of doctors, that they would undermined the medical evidence submitted on behalf of the claimant, and routinely make decisions based upon their own non-clinically qualified opinion.[16]I consider these positions when reaching my conclusions.
What is ‘torture’?
The definition of torture in the international legal context can be found in Article 1 of the UN Convention Against Torture (‘UNCAT’):
For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.[17]
Article 5 of the Universal Declaration of Human Rights[18] and Article 7 of the International Covenant on Civil and Political Rights[19] provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 3 of the European Convention on Human Rights[20] similarly provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. These rights are absolute.
Whilst the rights enshrined within the above declaration, covenant and conventions are absolute, torture continues to be regularly reported and evidenced. Amnesty International reported that during the period of 2009-2014, they had discovered evidence of torture in more than 140 countries.[21]
Burden and Standard of Proof in Asylum Claims
The UK Immigration Rules (‘IRs’),[22] implement the 2011 Qualification Directive[23] and sets out who bears the burden of proof. [24] The consideration of the standard of proof in asylum applications is discussed below.
Hathaway and Foster, both experts on international refugee law have written that ‘credible evidence of an applicant’s actual experience of persecution in her home state will often be an excellent indicator of the fate that may await her upon return to that country’[25] Paragraph 339K of the IRs sets out that evidence of past persecution is ‘a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.’[26]
There are a number of established tests from HMCTS which guide and rule on what needs to be done by refugees to demonstrate a risk on return. In Sivakumaran, the House of Lords handed down Judgment confirming the standard of proof was not to the relatively high civil standard and that the asylum claimant has to instead show a ‘real and substantial danger of persecution.’[27]
The Supreme Court later approved HJ (Iran) noting that the House of Lords test ‘remains the test’.[28] Lord Walker agreed with Lord Templeman and ruled in HJ that ‘‘Risk’ … factors in both the probability of harm and its severity.’[29]
The Supreme Court also considered this issue in MA (Somalia), ruling that for asylum claimants it was ‘both difficult and important’ to prove past persecution.[30]
Evidence has to be considered in the round. This is a well-established principle in asylum law. The Court of Appeal decided in the matter of Karanakaran that determining evidence is an issue ‘not of hard fact but of evaluation’.[31] An asylum claimant is not therefore expected to prove to the criminal standard of ‘beyond reasonable doubt’ or to the lower civil standard of ‘balance of probability’. The claimant has to give evidence which will be considered by a decision maker in the round and the decision maker will consider whether there is ‘a reasonable degree of likelihood’.[32]
Guidelines for the Production of Medico-Legal Evidence
Guidelines for medical experts providing Medico-Legal evidence in asylum claims are set out in a number of differing sets of instructions.
Firstly, and not in any specific order, it is important to review that there are two UKHO Asylum Policy Instructions: one for Foundation Reports (HBF and FfT); and another for non-Foundation Reports. Secondly there are set practice directions for the both the FfT and UT. Finally, there is the Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. I will now consider these guidelines.
UKHO Guidance on Medico-Legal Reports
The UKHO provides two Asylum Policy Instructions to guide its caseworkers in considering medical evidence. One refers to reports from HBF and FfT.[33] The other policy instruction refers to reports coming from other expert sources.[34]
UKHO Guidance on non-Foundation Reports
The purpose of the non-Foundations policy instruction is to guide UKHO decision makers when considering evidence received from a medical expert not working for either HBF or FfT where the expert may not have the exposure to extensive training and support offered by HBF or FfT.
The policy guides UKHO decision makers inter alia to ‘ascertain whether a doctor who has been personally involved in the applicant’s medical assessment and/or treatment has prepared the medical report’ and affirms that a report should always be signed by the medical expert.[35] The policy further stipulates that when ‘medical reports are received, they must always be given consideration.’[36]
In contrast with the evidence expected from HBF and FfT, this policy and the expectations as set out are unsophisticated, and do not appear to expect a particular or specific forensic process. The policy is also now, given the development of the position in respect of medico-legal evidence, significantly out of date, being published in 2007 and last updated in 2008 (for the purposes departmental branding).
UKHO Guidance on Reports from HBF and FfT
Reports from HBF and FfT, by contrast with the non-Foundation policy, are subject to a greater number of requirements. It is arguable, that rather than for specific procedural requirements, these requirement arise from the stated professional practices of both HBF and FfT; this latter point is especially relevant given that both organisations worked alongside the UKHO to produce the policy instruction in 2012.
It is important to note the background to this specific policy. Firstly, the API arose in recognition of the expertise the Foundations have in the examination of people who have experiences of torture and documentation of their injuries. The policy confirms that ‘recognised expertise’ means that reports prepared by HBF and FfT ‘should be accepted as having been compiled by qualified, experienced and suitably trained clinicians and health care professionals’. It is also noted that the experts working for HBF and FfT are trained to be ‘objective and unbiased.’[37]
Practice Directions
Guidance for Medical Experts is set out in paragraph 10 of the FtT and UT Practice Directions.[38]
Paragraph 10 confirms that there are specific expectations to define the relationship: between the expert and the Tribunal; between the expert and those instructing them; and to confirm key aspects of their writing procedure within their report.[39]
Paragraph 10 provides inter alia that:
- Experts have a duty to give evidence within their own expertise only (i.e. a medical expert should not give evidence as to the situation medical situation in a specific country unless they have that relevant expertise);[40]
- The duty of the expert is to the Court and not those who instruct them;[41]
- Experts should be independent;[42]
- Experts must not advocate for the subject of their report; and[43]
- Experts must confirm their qualifications as to their own expertise and opinions.[44]
The Practice Directions are expected to be followed by all practitioners who work in the FtT and the UT. It is therefore expected that practitioners adequately instruct medical experts, referring to the expectations of the Practice Directions when doing so.
The Istanbul Protocol
The Istanbul Protocol (‘IP’) is ‘the result of three years of analysis, research and drafting, undertaken by more than 75 experts in law, health and human rights, representing 40 organizations or institutions from 15 countries.’[45] Physicians for Human Rights refer to the IP as being ‘the global standard for torture documentation.’[46]
‘ … Trained clinicians examine all signs and sequelae of physical and psychological abuse and produce a medical-legal affidavit documenting their conclusions. These affidavits serve as key evidence to prosecute perpetrators of torture, to help victims obtain redress in civil courts, and to substantiate claims of asylum in new countries.’ [47]
FfT refer to the IP as being ‘a model of multi-professional, robust international consensus providing clear guidelines as to how physical and psychological evidence of torture should be gathered’.[48] Furtmayr and Frewer outline that the IP is ‘an acknowledged standard for documenting cases of alleged torture and other forms of severe maltreatment’.[49]
In KV before the UT, HBF submitted that the IP has attained the status of customary international law.[50] It was further confirmed that both HBF and FfT train their medical experts to follow the IP.[51]
It is also noted however, that neither of the UKHO policies referred to above explicitly state the IP should, or must be followed. Further, the Tribunal Practice Directions do not direct experts to follow the IP. The IP is therefore followed, but done so by both HBF and FfT, and many other independent medical experts in the UK, without the requirement of the UKHO or HMCTS.
KV
The issue for KV, as outlined above, is that the UKHO, an Immigration Judge, three out of three Senior Immigration Judges, and two out of three Lord Justices of Appeal all believed that medical evidence submitted in support of KVs applications and appeals did not rule out a possibility that the scarring found all over his body was caused by a third party to give rise to an asylum claim. To date, KV has not been able to prove that his scarring was caused as a result of torture.
The Upper Tribunal unanimously determined that it is in fact possible that KV subjected himself to SIBP by having a third party burn him. The majority Court of Appeal agreed.
Dr Juliet Cohen, the Head of Doctors at FfT, has conducted specific research in respect of Sri Lankan burn cases. Dr Cohen has reported in 2017 that there is ‘no published clinical literature of cases of asylum seekers inflicting significant injuries via a proxy to bolster their claim.’[52]
KV and SIBP
Medical evidence produced by KV throughout his case provides clear evidence relevant to two specific issues: the scarring, including his consistent approach to the attribution of the scarring; and also, with some difficulty the position related to whether or not it was possible to discount SIBP as the cause of KV’s scarring.
All the doctors who met with KV concluded that his scarring was consistent with his attribution: that he was most likely branded whilst being restrained by torturers. Taking into account the language of the IP, the clinical opinion of the doctors on the consistency of scarring relevant to attribution (as per paragraph 187 and 188 of the IP) varied from ‘highly consistent’[53] to ‘typical of’.[54] In her report, Dr Joyce Odili found that the scarring she saw on KV’s back was ‘typical of being burnt with a metal rod as claimed’.[55] Dr Zapata-Bravo gave his clinical opinion that the scarring did ‘not only … not contradict his history, but [was] highly consistent with it.’ [56]
As to whether or not it could be demonstrated with medical or clinical certainty that there would be identifiable differences between a scar caused by a torturer or by a person asked to inflict the wound, the medical experts stated that in their clinical experience there was no current methodology for differentiating between a wound caused as a result of self-infliction with a wound caused as a result of torture.
The medical evidence was accordingly clear: KV had scarring that was, in the language of the IP at least ‘highly consistent’ and generally ‘typical of’ his stated attribution; and that there was no current medical procedure or any other known process for determining who was holding the implement, or their intention when holding an implement that would cause a wound leading to a scar. Regardless, this was not enough for the UT who proceeded discount the evidence provided by KV and the evidence submitted by HBF. Moreover, the UT, regardless of the lack of methodology which can assist in the differentiation of how scarring was caused, deigned it necessary to issue guidance requiring all clinicians to consider SIBP as standard procedure.
It is of some consolation to medical experts that this final issue was overturned by the CoA. As a result of the extensive submissions by HBF as a central aspect of the intervention in respect of what experts should be expected to do, Sales, LJ considered whether or not experts needed to have such strict guidelines, as set out by the UT. In drawing his judgment to a conclusion, Sales, LJ confirms that: In my judgment, the guidelines issued by the UT and set out in the Annex below should be treated as of no effect. The best guidance available for expert witnesses is set out in para. 10 of the Practice Direction, and medical witnesses should have their attention explicitly drawn to this when they are instructed to prepare expert evidence.[57]
As things stand, the UT guidance to medical experts remains good law, subject to the judgment of the UKSC, which is due soon.
Conclusions and Recommendations
The question posed at the outset was: Taking into consideration the Judgment of the Court of Appeal in KV how should medical evidence be treated in the just determination of asylum claims?
It is my conclusion that guidance for medical experts as set out within the IP and the Practice Directions, is sufficient for medical experts completing medico-legal reports on behalf of asylum seekers and victims of torture. Given the low standard of proof, to expect or require medical experts to be able to move from talking about consistency of scarring and attribution to confirming who was holding the weapon or object that caused the wound, or their intention in causing harm, is to surely raise the standard higher than required by both international and domestic law.
Medical experts should generally remain confident that their evidence will be properly understood in the correct context and I believe that the UKSC will confirm this when they hand down judgment.
However, taking into account how the UT and CoA have dealt with these important issues, it is also fair to say that regardless of how well evidence is instructed and constructed, torture will not always be properly dealt with by the courts.
I offer the following recommendations.
Recommendation 1: SIBP remains, and arguably always will be a possibility. This position, coupled with the medical experts position that no current methodological process is available to discount SIBP, means that guidance should be issued which confirms that unless specific evidence confirms SIBP in a given case, any reference to SIBP must not be included in an attempt to discount medical evidence which finds torture to be a real possibility.
Recommendation 2: If the UKHO and HMCTS are going to maintain the low standard of proof in asylum claims, any view taken to do anything other than rule out SIBP without clear corroborating evidence that SIBP has taken place, would be unreasonable given the stated low standard of proof.
Recommendation 3: The IP is, in my view, the best available guidance for medical practitioners investigating allegations of torture. However, it is important in light of the case of KV as well as other current matters relevant to asylum applications in Europe at this time, to consider reviewing the guidance given and consider whether the IP remains fit for purpose.
Ultimately, the just determination of an asylum claim is a difficult job for any decision maker; whether a new UKHO official or a seasons Lord Justice of Appeal. What is however necessary is that the decision maker always reminds themselves of the low standard of proof, examines the evidence as submitted and takes into account the difficult circumstances that everyone faced with having to make an asylum claim is likely to have faced.
Finally, and in reference to the quote at the outset of this paper, I believe that for those people entering the UK in order to seek protection, sanctuary and help, to be faced with the accusation that the trauma they faced in their home country, or en route to the country that they arrived in, did not happen and that they instead instigated the harm themselves so as to give them evidence, we must truly pause for thought to consider not only the psychological harm that such a suggestion can cause, but also the effect on standards in both domestic and international human rights law. This goes significantly beyond the ‘demeaning’ comment by Elias, LJ. The consequences of SIBP remaining an actual proposition could actually cause irreparable damage to integrity of the UK asylum system.
Bibliography
Publications and Reports
- Amnesty International, Torture in 2014: 30 Years of Broken Promises, 2014, available at: https://www.amnestyusa.org/reports/torture-in-2014-30-years-of-broken-promises/.
- Cohen, J, Pettitt, J, Wilbourn, E, ‘Intentional burn injury: Assessment of allegations of selfinfliction’, Journal of Forensic and Legal Medicine, 2017: 51.
- Freedom from Torture, Methodology employed in the preparation of Medico-legal reports, available at: https://www.freedomfromtorture.org/document/referrals/5768.
- Freedom from Torture, Out of the Silence: Ongoing torture in Sri Lanka, 2011, available at:
- https://www.freedomfromtorture.org/sites/default/files/documents/Sri%20Lanka%20Ongoing%20Torture_Freedom%20from%20Torture_Final%20Nov_07_2011.pdf.
- Freedom from Torture, Proving Torture: Demanding the impossible – Home Office mistreatment of expert medical evidence, 2016, available at: https://www.freedomfromtorture.org/proving_torture.
- Furtmayr, H and Frewer, H, ‘Documentation of torture and the Istanbul Protocol: applied medical ethics’, 2010: 13, page 279.
- Hathaway, J and Foster, M, The Law of Refugee Status, Cambridge, Second Ed, 2014, page 161.
- Wallace, Rebecca, and Wylie, K, ‘The Reception of Expert Medical Evidence in Refugee Status Determination’, International Journal of Refugee Law, 2013.
Case Law
- HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 31 (07 July 2010), available at: https://www.bailii.org/uk/cases/UKSC/2010/31.html.
- Karanakaran v. Secretary of State for the Home Department, [2000] EWCA Civ. 11, available at: https://www.refworld.org/cases,GBR_CA_CIV,47bc14622.html.
- KV (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 119 (07 March 2017), available at: https://www.bailii.org/ew/cases/EWCA/Civ/2017/119.html.
- KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC), available at:
- https://www.bailii.org/uk/cases/UKUT/IAC/2014/[2014]_UKUT_230_iac.html.
- MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49, available at: https://www.bailii.org/uk/cases/UKSC/2010/49.html.
- Sivakumaran, R (on the application of) v Secretary of State for the Home Department [1988] AC 958, available at: https://www.refworld.org/cases,GBR_HL,3ae6b67f40.html.
- Supreme Court Case Details, KV (Sri Lanka) (AP) (Appellant) v Secretary of State for the Home Department (Respondent) and another, available at: https://www.supremecourt.uk/cases/uksc-2017-0124.html.
Government Policy, Statutory Instruments and EU materials
- Courts and Tribunals Judiciary, Practice Directions, Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, 2014, available at: https://www.judiciary.uk/wp-content/uploads/2014/11/revised-pd-3112014.pdf.
- Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, 2011, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0095.
- European Convention on Human Rights, Article 3, available here:
- https://www.echr.coe.int/Documents/Convention_ENG.pdf.
- Home Office, Asylum Policy Instruction, Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service, 2015, available at:
- https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/444410/MLR_Foundation_Cases__External_v4_0.pdf.
- Home Office, Asylum Policy Instruction, Non-Medical Foundations cases, 2008, available at:
- https://www.gov.uk/government/publications/medical-evidence-non-medical-foundation-cases-instruction.
- Home Office, Immigration Rules (HC395, as amended), available at:
- https://www.gov.uk/guidance/immigration-rules.
United Nations Publications
- Office of the United Nations High Commissioner for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2004, available here: https://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
- UN Convention Against Torture, Article 1, available at: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx.
- UN Universal Declaration of Human Rights, Article 5, available at: http://www.un.org/en/universal-declaration-human-rights/.
- UN International Covenant on Civil and Political Rights, Article 7, available at:
- https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
- UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, available at: https://www.unhcr.org/4d93528a9.pdf.
Websites
- Physicians for Human Rights, The Istanbul protocol, available at: https://phr.org/issues/istanbul-protocol/.
- Stanford University, Mapping Militant Organisations, Liberation Tigers of Tamil Elam, available at: http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/225.
[1] KV (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 119 (07 March 2017), available at:
https://www.bailii.org/ew/cases/EWCA/Civ/2017/119.html.
[2] Father Greg Boyle, available at https://www.safetyfirstforgirls.org/2018/05/refugee-status-determination-rohingya.html.
[3] ‘The Liberation Tigers of Tamil Eelam (LTTE), commonly known as the Tamil Tigers, were a separatist militant organization fighting for an independent homeland for Sri Lanka’s Tamil minority in northern Sri Lanka.’ Stanford University, Mapping Militant Organisations, Liberation Tigers of Tamil Elam, available at: http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/225.
[4] ‘Many Sri Lankan torture victims are left with visible scarring attributable to both blunt force trauma and burns which suggests impunity for perpetrators of torture in Sri Lanka’, Freedom from Torture, Out of the Silence: Ongoing torture in Sri Lanka, 2011, available at:
https://www.freedomfromtorture.org/sites/default/files/documents/Sri%20Lanka%20Ongoing%20Torture_Freedom%20from%20Torture_Final%20Nov_07_2011.pdf.
[5] KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC), see paragraph 191, available at:
https://www.bailii.org/uk/cases/UKUT/IAC/2014/[2014]_UKUT_230_iac.html.
[6] Helen Bamber Foundation. Their website is available at: http://www.helenbamber.org/. HBF is an expert medical/clinical charity in London which provides medical evidence for asylum seekers and victims of torture. As head of their legal department from 2012 through to 2017, I was responsible for oversight of the production of over one thousand medico-legal reports.
[7] Professor Cornelius Katona, Consultant Psychiatrist and Medical Director at Helen Bamber Foundation; Dr Frank Arnold, Surgeon and Scar Tissue Expert; and David Rhys Jones, current Legal Officer at Helen Bamber Foundation (former Legal Officer at Freedom from Torture, joint author (with Dr Juliet Cohen) of FfT’s methodology for writing medico-legal reports, available at: https://www.freedomfromtorture.org/document/referrals/5768.
[8] Shivani Jegarajah of Mansfield Chambers and Colin Yeo of Garden Court Chambers.
[9] KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC), available at:
https://www.bailii.org/uk/cases/UKUT/IAC/2014/[2014]_UKUT_230_iac.html.
[10] Ibid, see headnote.
[11] KV (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 119 (07 March 2017), see paragraph 7, available at:
https://www.bailii.org/ew/cases/EWCA/Civ/2017/119.html.
[12] Ibid, see paragraph 8.
[13] Supreme Court Case Details, KV (Sri Lanka) (AP) (Appellant) v Secretary of State for the Home Department (Respondent) and another, available at: https://www.supremecourt.uk/cases/uksc-2017-0124.html.
[14] Freedom from Torture, Proving Torture: Demanding the impossible – Home Office mistreatment of expert medical evidence, 2016, available at: https://www.freedomfromtorture.org/proving_torture.
[15] Ibid, see page 12.
[16] Rebecca MM Wallace & Karen Wylie, ‘The Reception of Expert Medical Evidence in Refugee Status Determination’, International Journal of Refugee Law, 2013, see page 12.
[17] UN Convention Against Torture, Article 1, available at: https://www.ohchr.org/en/professionalinterest/pages/cat.aspx.
[18] UN Universal Declaration of Human Rights, Article 5, available at: http://www.un.org/en/universal-declaration-human-rights/.
[19] UN International Covenant on Civil and Political Rights, Article 7, available at:
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.
[20] European Convention on Human Rights, Article 3, available here: https://www.echr.coe.int/Documents/Convention_ENG.pdf.
[21] Amnesty International, Torture in 2014: 30 Years of Broken Promises, 2014, see page 6, available at: https://www.amnestyusa.org/reports/torture-in-2014-30-years-of-broken-promises/.
[22] UK, Home Office, Immigration Rules (HC395, as amended), available at: https://www.gov.uk/guidance/immigration-rules.
[23] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, 2011, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0095.
[24] Note that paragraph 339I of the Immigration Rules provides that the burden of proof lies with the applicant. Though also note para 196 of UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, available at: https://www.unhcr.org/4d93528a9.pdf.
[25] James C. Hathaway and Michelle Foster, The Law of Refugee Status, Cambridge, Second Ed, 2014, page 161.
[26] UK, Home Office, Immigration Rules (HC395, as amended), see paragraph 339K available at:
https://www.gov.uk/guidance/immigration-rules.
[27] Sivakumaran, R (on the application of) v Secretary of State for the Home Department [1988] AC 958, available at:
https://www.refworld.org/cases,GBR_HL,3ae6b67f40.html.
[28] HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 31 (07 July 2010), available at:
https://www.bailii.org/uk/cases/UKSC/2010/31.html.
[29] Ibid.
[30] MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49, available at:
https://www.bailii.org/uk/cases/UKSC/2010/49.html.
[31] Karanakaran v. Secretary of State for the Home Department, [2000] EWCA Civ. 11, available at: https://www.refworld.org/cases,GBR_CA_CIV,47bc14622.html.
[32] ‘The level of proof needed to establish the material facts is a relatively low one – a reasonable degree of likelihood – and must be borne in mind throughout the process.’ Home Office: Asylum Policy Instruction, Assessing credibility and refugee status, see page 11, available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/397778/ASSESSING_CREDIBILITY_AND_REFUGEE_STATUS_V9_0.pdf.
[33] Home Office Asylum Policy Instruction, Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service, 2015, available at:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/444410/MLR_Foundation_Cases__External_v4_0.pdf.
[34] Home Office Asylum Policy Instruction, Non-Medical Foundations cases, 2008, available at:
https://www.gov.uk/government/publications/medical-evidence-non-medical-foundation-cases-instruction.
[35] Ibid, page 10.
[36] Ibid.
[37] See section 3.1., Home Office Asylum Policy Instruction, Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service, 2015, available at:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/444410/MLR_Foundation_Cases__External_v4_0.pdf.
[38] Courts and Tribunals Judiciary, Practice Directions, Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, 2014, available at: https://www.judiciary.uk/wp-content/uploads/2014/11/revised-pd-3112014.pdf.
[39] Ibid.
[40] Ibid, 10.2.
[41] Ibid, 10.2.
[42] Ibid, 10.3.
[43] Ibid, 10.4.
[44] Ibid, 10.9.
[45] Office of the United Nations High Commissioner for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2004, see page 2, available here: https://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
[46] Physicians for Human Rights, The Istanbul protocol, available at: https://phr.org/issues/istanbul-protocol/.
[47] Ibid.
[48] Freedom from Torture, Proving Torture: Demanding the impossible – Home Office mistreatment of expert medical evidence, 2016, See page 3, available at: https://www.freedomfromtorture.org/proving_torture.
[49] Holger Furtmayr and Andreas Frewer ‘Documentation of torture and the Istanbul Protocol: applied medical ethics’, 2010: 13, page 279.
[50] KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC), see paragraph 222, available at:
https://www.bailii.org/uk/cases/UKUT/IAC/2014/[2014]_UKUT_230_iac.html.
[51] Freedom from Torture, Proving Torture: Demanding the impossible – Home Office mistreatment of expert medical evidence, 2016, See page 11, available at: https://www.freedomfromtorture.org/proving_torture.
[52] Juliet Cohen, Jo Pettitt, Emily Wilbourn, ‘Intentional burn injury: Assessment of allegations of selfinfliction’, Journal of Forensic and Legal Medicine, 2017: 51, see page 19.
[53] Office of the United Nations High Commissioner for Human Rights, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2004, see paragraph 187(d), available here: https://www.ohchr.org/Documents/Publications/training8Rev1en.pdf.
[54] Ibid, paragraph 187(d).
[55] KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC), see paragraph 195, available at:
https://www.bailii.org/uk/cases/UKUT/IAC/2014/[2014]_UKUT_230_iac.html.
[56] Ibid, paragraph 134.
[57] KV (Sri Lanka) v Secretary of State for the Home Department [2017] EWCA Civ 119 (07 March 2017), see paragraph 96, available at:
https://www.bailii.org/ew/cases/EWCA/Civ/2017/119.html.