The Court of Appeal has reviewed the meaning of ‘independent evidence of torture’ and the correct approach to the analysis of medical reports in R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521.

AM was unrepresented, her asylum application refused, her appeal lost and she was detained prior to removal. It looked pretty hopeless for her. Two medico-legal reports were nevertheless prepared by a registered nurse, working as clinical co-ordinator at the Helen Bamber Foundation, a fresh asylum claim was made and rejected and an application for judicial review followed.

The Secretary of State rejected the fresh claim and discounted the reports because of AM’s poor credibility. A High Court judge agreed: ‘It is clear …  that [the report writer] believed the claimant, taking everything she said at face value.’ He concluded that the fresh claim was a ‘try-on’. An appeal was then pursued to the Court of Appeal.

The ‘try on’ response to medical reports is seen all too often, but in this case the Court of Appeal held that conclusion to be wrong, even though the appellant was ‘totally lacking in credibility.’

The reports found AM to be

grossly traumatized … [but] … prone towards understatement and tends to require great encouragement to speak in a freely associative manner. However, once she begins to speak the content of her thoughts and feelings are intrinsically linked to her trauma.

A separate report by the same nurse practitioner documented nine areas of physical injury. One scar was “inconceivably caused by anything other than a blade or shard of glass,” yet the SoS rejected the report saying “… it is noted that the scars referred to in the report are slight and mainly restricted to the legs and there is no clear evidence that the scarring was obviously the result of torture or detention…” The Secretary of State also argued that “if [AM] had been detained and tortured as claimed, then the precise circumstances of these events would have been so searing as to have engraved” upon her memory.

It is difficult to explain how fundamentally misconceived this last piece of reasoning really is. Suffice it to say that it is totally at odds with all of the research and academic work on the impact of torture on memory, which actually suggests completely the opposite.

Giving the leading judgment of the Court of Appeal, Rix LJ disagreed that the nurse was merely taking everything AM said at face value:

[Her] reports constituted independent evidence of torture. [She] was an independent expert. … expressing her own independent views. … it is evident from her assessment that she believed that AM had suffered torture and rape and that those misfortunes had rendered her the “grossly traumatized” woman that she found her to be, with “feelings of deep and intense shame and self disgust”, “feelings of shame and stigmatization”, and a “fragile mental state”. Those findings are … interpretation of what she found, they are not the mere assertions of AM.

…[Her] belief was her own independent belief, even if it was in part based on AM’s account. … the judge was mistaken to suggest that such belief was merely as a result of ‘taking everything she said at face value’ … where the independent expert is applying the internationally recognised Istanbul Protocol… A requirement of “evidence” is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard …  is a matter of weight and assessment.

Rix LJ’s analysis is extremely important to the way in which the immigration tribunal (and UKBA case owners) engage with medical reports because the error on which the first instance decision was overturned by the Court is one that is not infrequently detected in immigration tribunal determinations:

The only reason ultimately given by the judge for not accepting [the nurse’s] reports as independent evidence of torture is contained in the last sentence of his para 24, where he said: “But the report did not provide independent evidence that the claimant had been tortured because that depended upon accepting the claimant’s account how they were caused” (emphasis added). If the judge was talking about [the nurse’s]  belief, that was plainly independent evidence, even if it depended in part on formulating her opinion in the light of AM’s account. If, however, the judge was referring to the “acceptance” by the Secretary of State, that is neither a matter of evidence, nor is it independent, and the judge would be adding a new requirement, not mentioned in the Guidance, to qualify the Secretary of State’s policy.

It is perhaps time for the immigration tribunal to move on from the extreme cynicism towards expert evidence expressed in the early and rather primitive starred determination of AE and FE [2002] UKIAT 05237. A handful of experts may be suspect, but the vast majority are not and are fully aware of their duty to the court. Proper respect is owed to fellow professionals.