KV (Sri Lanka) v Secretary of State for the Home Department, 2019
| Country of Decision: | United Kingdom |
| Country of applicant: | Sri Lanka |
| Court name: | Supreme Court |
| Date of decision: | 06-03-2019 |
| Citation: | KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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Torture
Description
“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/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her 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.” |
Headnote:
This appeal considered what the correct approach is to the assessment of medical evidence in asylum claims alleging torture. Hence, it was declared that decision-makers can receive assistance from medical experts who are able to offer an opinion about the injury inflicted. The Supreme Court unanimously allowed the appeal and remitted KV’s appeal against the refusal of asylum to the Upper Tribunal for fresh determination.
Facts:
KV, a Sri Lankan asylum-seeker, claimed that the scares on his back and arm were the result of torture by Sri Lankan government forces, but his claim was disbelieved on the basis that the scars were self-inflicted by proxy (inflicted by another person at KV’s own invitation) as an incentive to manufacture evidence in support of a false asylum claim. The photographs he provided were deemed insufficient evidence and the decision maker found inconsistencies in his narrative, noting that no medical evidence was provided in support of his claim of torture which was rejected. The First-tier Tribunal dismissed his appeal. The UT was also unconvinced by KV’s evidence from a clinical point of view. The Court of Appeal dismissed his further appeal.
Decision & reasoning:
Outcome:
Appeal granted.
Other sources:
SA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1302; [2007] Imm AR 1 236
RT (medical reports - causation of scarring) Sri Lanka [2008] UKAIT 00009
R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521
SS (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 310
Mehmet Eren v Turkey (2008) (Application No 32347/02)
Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”
Istanbul Protocol 1999,
Guidelines on the Judicial Approach to Expert Medical Evidence June 2010,
Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation Medico-Legal Report Service July 2015, The UN Special Rapporteur on Torture