“The Tribunal’s conclusion was… that [in order to fabricate an asylum claim] the appellant had allowed himself to be anaesthetised and then branded with a hot metal rod”

 – Elias LJ, KV (Sri Lanka)

In this area of law, it is sometimes hard to live with the reality of what human beings can do to one another. It is trite to say that the white heat of a traumatic experience can be lost in the cold sterility of judicial evaluation. But it bears repeating that judges who specialise in immigration and asylum law are human beings, too. They have the capacity to become inured to the sea of trauma and loss simmering below the black and white of their paperwork, the legal arguments and the rest.

Sometimes it takes a relative outsider – in this case a judge of the Court of Appeal – to set out in stark terms the implications of a finding made by the specialist tribunal, even if those judges could not bring themselves to state it in terms. “If not a moral judgment, it … certainly demeans the appellant”, Elias LJ went on to say, with characteristically judicial understatement.

His comments formed part of a coruscating dissent in the Court of Appeal’s decision in KV (Sri Lanka) [2017] EWCA Civ 119, which upheld a decision of the Upper Tribunal (by a majority) to dismiss the appellant’s appeal and reject his account. In the same decision the Court of Appeal did, however, unanimously lay waste to the tribunal’s guidance on self-inflicted wounds by those seeking asylum in the UK.

Background

The appellant in question, KV, had fled Sri Lanka following the conclusion of the civil war between LTTE (Tamil) separatists in the north and the government in Colombo. Upon reaching the UK in 2011 he made a claim for asylum, alleging that he had been detained and tortured during the dying embers of the conflict and held for a lengthy period of time on the basis of his association with the LTTE. He submitted photographs of wounds to his arms and back which, he said, were the result of the ill-treatment he had received.

KV’s claim was rejected by the Home Office on credibility grounds: they did not believe that he was an LTTE member or associate, nor that he had ever been arrested or detained, or that he would face a real risk of persecution if returned.

Sri Lanka c. 2009

As anyone familiar with Sri Lankan cases will tell you, suspected LTTE members and associates detained by the government during the civil war period and following were not well treated. Background reports from international organisations, country guidance cases from the tribunal, as well as Home Office guidance broadly attest to their heightened risk of torture during this time, which was common, if not routine.

The US State Department 2009 Country Reports on Human Rights Practices, for example, makes specific reference to the branding of detainees with hot metal objects during this time. At the time of KV’s asylum claim in 2011, those falling into certain risk categories would qualify for asylum in the UK if they could make out their case to the Home Office that they were at risk of persecution on return, with evidence of past ill-treatment a fairly significant indicator of that future risk. The relevant country guidance case at that time was TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049.

Enter the tribunal

KV appealed to the tribunal against the Home Office decision to refuse his claim. The case eventually made its way to the Upper Tribunal where it was determined in KV (scarring – medical evidence) Sri Lanka [2014] UKUT 230 (IAC) that he had not been tortured, and that the wounds had instead been ‘Self-Inflicted By Proxy’ (SIBP).

In other words, KV had purposefully scarred his own body, probably with the help of a medically qualified third party, in order to fabricate his claim for asylum.

The tribunal also decided, in a claim where the Home Office had not even argued that KV’s wounds were self-inflicted, that the case should be used as a vehicle to issue general guidance about what decision-makers should do when confronted with evidence where self-infliction was a ‘more than fanciful possibility’ of the cause of the scarring.

The Upper Tribunal determination in KV begins with an apology for its length [paragraph 1], and over the course of the following 122 pages much ink is spilled producing guidance, directed at both the writers of medical reports as well as judicial fact-finders. The guidance details the need, where self-infliction is a ‘more than fanciful possibility’ for the cause, to engage with this issue of whether the individual with the scars had, effectively, done it to themselves.

Context

It is difficult to think of any type of scarring which could not conceivably have been deliberately self-inflicted (at least with the help of a third party).

This is important because the context in which these types of decisions are made is key. The very fact that such guidance was promulgated by the tribunal suggests that the problem is widespread. However, there is no evidence that it is, and none appears to have been advanced in the proceedings.

It might also be said that to import into scarring cases the question of whether or not an appellant has deliberately mutilated themselves for the purposes of their asylum claim as a primary issue does not create an atmosphere conducive to fair-minded fact-finding. The question “what happened to this appellant?” is a much better starting point than “is this appellant lying?”

Thanks for coming

Following the decision of the Upper Tribunal to reject his account, KV appealed to the Court of Appeal.

In its decision the Court of Appeal essentially decided that separate guidance, in addition to pre-existing court practice directions regulating the provision of expert evidence before the tribunal, was unnecessary. There is a tone of bafflement in the judgment as to what the Upper Tribunal were actually trying to achieve.

“I respectfully question whether it was ever going to work very well. The UT itself emphasised the limited assistance the expert evidence provided on the three questions it originally identified. In my view, medical evidence will usually have to be so case-specific that it is unlikely that generalised formulations by the UT or a court will ultimately provide much of a substitute for instruction of experts who examine the individual in question and provide what assistance they properly can within the area of their expertise, following the approach set out in the Practice Direction.” [89]

And with a massive legal shrug the Court of Appeal rendered the Upper Tribunal’s 122-page effort worthless:

“In my judgment, the guidelines issued by the UT … should be treated as of no effect”

What of KV?

However, the Court of Appeal decided, by a majority, to uphold the Upper Tribunal’s finding that KV had “allowed himself to be anaesthetised and then branded with a hot metal rod”. The findings of the Upper Tribunal were within the range of legally permissible outcomes from the evidence presented.

These conclusions meet with unusually heavy and sustained criticism in a brilliant dissent from Elias LJ, who dismantles the findings made by the Upper Tribunal’s [paragraphs 102-117], exposing some significant holes in the evidence presented. He starts with a reality check:

“In my view very considerable weight should be given to the fact that injuries which are [self-inflicted] are likely to be extremely rare. An individual is highly unlikely to want to suffer the continuing pain and discomfort resulting from self-inflicted harm, even if he is anaesthetised when the harm is inflicted. Moreover, the possibility that the injuries may have been sustained in this way is even less likely in circumstances where the applicant would have needed to be anaesthetised. This would in all probability have required the clandestine co-operation of a qualified doctor who would have had to be willing to act in breach of the most fundamental medical and ethical standards, and who had access to the relevant medical equipment.”

Elias LJ also had particular difficulty with the issue of the two sets of scars – one set to the back, the other to the arms – which were of a different appearance:

“In my view it is bordering on the fanciful to believe that if these burns were SIBP, they would have been inflicted on more than one occasion. The scars on the back were so placed that they were only compatible with SIBP or torture; on the assumption that they were [self-inflicted], why would the appellant willingly undergo further burning on his arms on a different occasion?”

The dissent concludes that

“the evidence needed to be particularly robust to justify such an unlikely conclusion. In my view it was not.”

This will be cold comfort to KV, whose life will have no doubt been defined for the past six or so years by the twists and turns of this litigation. He is left demeaned and branded once more, with a powerful – but legally empty – dissent from a Court of Appeal judge, highlighting the significant deficiencies in the case against him.