United Kingdom – Supreme Court rules against tribunal that had found applicant’s torture was self-inflicted

Wednesday, March 6, 2019

On 6 March 2019, the UK Supreme Court ruled in a case concerning the likelihood that the torture wounds of an applicant had been self-inflicted.

The appellant, a Sri Lankan national of Tamil ethnicity, claimed asylum in the United Kingdom on account of being persecuted and tortured by the Sri Lankan government. During the procedure the appellant produced photographs of scars on his body, which he claimed were the result of torture. The UK Home Office rejected the application after finding that his account had been inconsistent. In relation to his scars, it noted that he had produced no medical evidence in support of his account of torture, which it did not accept.

The applicant challenged the refusal of his claim before the First-tier Tribunal (FTT) and, following the latter’s dismissal, further on before the Upper Tribunal (UT). Despite the applicant’s accounts and a medical expert’s findings of torture, the UT denied that torture had taken place insinuating that this may be a case of self-inflicted torture by proxy. Upon review, the Court of Appeal held that the assessment made by the UT could not be considered unreasonable and the findings by the expert medical witness were, in any case, beyond his remit.

In coming to its decision, the Supreme Court first looked at the role of the medical witness. In this respect, it noted that the medical expert’s conclusions were in accordance with the Istanbul Protocol on the effective investigation of torture and the argument that the witness had gone beyond his remit could not be supported. The Court further observed that judges can be legitimately assisted by medical experts regarding the consistency of an account of torture with clinical findings. Their evidence does not have to be limited to the mechanism used but can also include the circumstances in which the scarring was sustained. They would only be beyond his professional capacity if the expert pronounced himself on the applicant’s credibility, as that assessment and conclusion should rest with the decision maker. This approach is also consistent with domestic and European case law.

The Supreme Court went on to note that, although the appellant’s significant lack of credibility means that the tribunal correctly touched upon the possibility of self-inflicted wounds, it failed to take into account the fact that self-infliction of torture is inherently unlikely. It pointed out that there is extensive evidence of torture by the Sri Lankan government at that time, whereas evidence of self-inflicted wounding in cases of asylum applicants is almost non-existent. The judges concluded that the fact that self-inflicted torture is likely to be extremely rare should bear decisive weight in this case.

The Court allowed the appeal and remitted the applicant’s case back to the Upper Tribunal for a new judgment.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE. 



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