S v Secretary of State for the Home Department [2006] EWCA Civ 1153

Case No C5/2005/2286[2006] EWCA Civ 1153
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. AS/55879/2003]
Venue Royal Courts of JusticeDate Wednesday, 5 th July 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE AULD
LORD JUSTICE RIX
LORD JUSTICE HOOPER
Between
SAppellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS S NAIK (instructed by Messrs Dare Emmanuel, LONDON E1 1DU), appeared for Appellant.MS C NEENAN (instructed by the Treasury Solicitor, LONDON SW1 9JS), appeared for Respondent.
J U D G M E N T

LORD JUSTICE RIX:

This

[1]appeal concerns a 30-year-old woman from Ethiopia. She based her claim to refugee status and also protection from return under Article 3 of the European Convention on Human Rights on the following account, which for present purposes I limit to its essential kernel.[2]She said that her husband had been a prominent member of the Oromo Liberation Front (“OLF”) in Ethiopia and that she had been a member, too; that in July 2002 security men had raided their home; that her husband had been shot dead in trying to escape; and that she had been hurt by shrapnel from a bullet or from flying debris and had lost consciousness and woke up to find herself in hospital. She accepted that at that time she was not herself the target of that raid, and indeed she made a formal complaint in due course after a full recovery from her injuries. That was in January 2003.[3]Despite the tragic loss of her husband, however, she then resumed her political activities and allowed them to become known to a street girl, Beletu by name, whom her mother had befriended and had taken into the house, but who had later informed on her. As a result she was arrested and detained in June 2003; kept in prison for some 40 days; raped on two separate occasions by her prison guards until ultimately she was released by them with the help of a friend, a Mr Zechious, who had bribed the guards as a preliminary to organising her escape from Ethiopia with the help of an agent.[4]She left Ethiopia on 3 September 2003 and arrived in this country on the same day. She entered with the assistance of a false passport. She claimed asylum on the following day. She explained that she had intended, with the help of the agent in whose hands she was, to go on to the United States and had only come to England in transit. However, she had then been left in the lurch in England by the agent, and thus claimed asylum here. That is the essence of her story.[5]On this appeal there is a single ground of appeal, which can perhaps be explained in the words of Sedley LJ when he gave permission for this appeal as follows:
“What Miss Naik now relies upon is a single aspect of the immigration judge’s reasoning, namely that he had reached his finding of total disbelief of the applicant’s account before turning, as he finally did at paragraph 60 of his decision, to the medical evidence which was, on any view, capable of corroborating much of that account.”
That evidence was the report of a psychiatrist, Dr Steadman, who, being medically qualified, was entitled to report in addition on the consistency of a number of minor disfigurements with the account given by the applicant of having been hit by shrapnel and suffering a fall in the course of the assassination of her husband, together with her continuing symptoms of post-traumatic stress disorder.[6]In this connection Miss Naik, who continues to represent the appellant, relies principally so far as the law is concerned on Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367; [2005] INLR 377, in particular, what was said there about the error of artificially separating a consideration of an applicant’s credibility from that of the medical evidence relevant to that applicant’s case.[7]The decision in question on this appeal is that of the immigration judge, Mr Dineen, promulgated on 15 August 2005. At that determination the appellant was represented by different counsel. After certain preliminaries and addressing the standard of proof, the immigration judge came straight away to the appellant’s evidence, which he set out in detail under the heading of “The Appellant’s Evidence” at paragraphs 14 to 45 of his determination. Much of the detail of it does not matter for the purposes of this appeal. I have set out the account which the appellant relied upon in its essence, but I need to refer to certain additional aspects of it in order to provide the background to the ground of appeal with which we are concerned today.[8]Thus, dealing with the raid on her home in July 2002, the immigration

judge at paragraph 22 recited her evidence as follows:

“The security men ransacked the house, but did not find any incriminating material. They argued with the appellant’s husband. He tried to escape from them by going out through the back door of the house. In order to do so he had to run past the bed where the appellant was lying. One of the security officers, who was armed, fired shots at him. The appellant was hit by part of a bullet or flying debris, fell out of bed and lost consciousness. The next thing she was aware of was that she woke up in hospital, where she was told that her husband had been shot dead in this incident. She has scars on her left shoulder, and some injuries on the back and left-hand side of her head. She also sustained an injury to her right eye, and no longer has clear vision in it. She has scars on her face, particularly on the right hand side of her top lip where she had stitches. She experiences pain in the whole of her right leg, and often has difficulties in walking. She cannot fully bend her right leg. She suffers from swollen ankles. As a result of her fall, she injured her nose, which she had an operation on after she had been discharged from hospital. She suffers from memory loss, sleeping difficulties, nightmares and flashbacks of the events of that day.”
[9]I refer next to passages at paragraphs 38, 39, 41 and 42 of the determination. In those paragraphs the immigration judge recorded the appellant’s evidence that she was extremely upset at having to leave her children and mother behind in Ethiopia, feared persecution because of her race and political opinion, and felt herself to be particularly at risk having escaped from prison. When questioned as to why it was that the authorities had taken an interest in her husband at the time when they did, she said that he was not known to the authorities prior to the time of the raid which led to his death, but that she believed that a friend, whose name she was unable to give, had informed on him. When asked why the security men were interested in her husband but not in herself, she explained that by saying they did not know about her activities, which were connected only with the women’s side of OLF.[10]When asked to explain how her friend Mr Zechious had managed to contact her when in prison, by putting notes in her food essentially asking if she would co-operate in being taken out of the country, she said that the notes had been put on the inside of a sandwich, between the pancake which formed the outer layer of the sandwich and the sauce which formed the inner part of the sandwich. That was how the notes had escaped the attention of the guards, who had only looked at the outside of the food. When asked how the notes would have survived contact with the liquid sauce forming the inside of the sandwich, she stated that they were wrapped in plastic.[11]In his final paragraph dealing with the appellant’s evidence, the immigration judge referred to the appeal bundle of 159 pages which the appellant’s solicitors had submitted, containing what the judge described as, “subjective and objective evidence”. That bundle of evidence contained Dr Steadman’s report to which I now turn. The judge did not describe its findings in the detail to which I now refer to it, but I do so in order to do justice to Miss Naik’s submissions. It is a lengthy report written by a consultant psychiatrist, who also holds himself out as competent as a doctor to describe physical injuries.[12]At page 8 of the report Dr Steadman refers to the appellant’s account to him of the circumstances of the July 2002 raid in which she was injured. She told Dr Steadman that the security men had chased and shot at her husband. She could not remember exactly what happened next, but described losing consciousness and waking up in hospital. She was told later by neighbours that she had fallen out of bed. She said that:
“She was not hit by a bullet but the hospital staff told her that she was probably hit by flying debris from the bullets, which caused her to lose consciousness.”
[13]She went on to describe an injury to her nose, which she said had been broken, and although she had had, ten days after her discharge from hospital, an operation on her nose to remove some fleshy part of it in order to improve her breathing, she had had no operation or procedure to set or repair the fracture of the nose. Dr Steadman reports that the scars which the appellant said were as a result of assaults upon her included scars on top of her left shoulder extending downwards in an area approximately nine centimetres square, in which there were some 40 scars ranging in size between 0.1 centimetre in diameter and up to 1.4 centimetres by 0.6 centimetres. She referred to scars on the back of her head, which the doctor said he could not see as her hair was long; and also to the scars above her upper right lip. She described all these scars as being from the flying debris which had hit her. Dr Steadman then said at page 53:
“One has to explain the scarring on the front of her face and the back of her head and the top and back of her left shoulder from debris, and I have given consideration to this and think that this would be possible, but the debris would have had to have come from almost directly above her from the ceiling radiating down onto her face, her head and her left shoulder.”
It seems to me that Dr Steadman is there describing a possible mechanism of injury from debris which is not injury from bullet shrapnel. Nor is it properly speaking, as I would understand it, injury from flying debris, but injury from debris falling from directly above.[14]In the subsequent part of his report Dr Steadman turned to her psychological and cognitive state assessments. He said that she presented with anxiety and symptomatology which could be consistent with a current partial syndrome of post-traumatic stress disorder. He found that the appellant suffered from loss of concentration and cognitive impairment. He was not able to find what, if any, part of it was due to injuries, but went on to state that from a practical point of view “it does not matter apart from realising that the cognitive deficits are important”. In his final summary he referred again to the scars on her shoulder and face and said that in his view those scars could have been caused in the way that she described, from debris hitting her from bullets. As for her broken nose, he said that on examination “she has some flattening in the bridge of her nose consistent with this”. He said that she would consider suicide in the event of her having to go back to Ethiopia, and he referred again to her important cognitive dysfunction which he thought would adversely affect her ability to cope with the process of cross-examination were issues of credibility to be raised against her.[15]I return to the structure of the immigration judge’s determination. Immediately after paragraph 5 under the heading “The Parties’ Submissions” the immigration judge set out in numbered sub-paragraphs the essential submissions, first of all of the Secretary of State and secondly of the appellant. He recited 14 points in the case of the Secretary of State’s submissions, which included four (that is those points numbered 4, 5, 12 and 13) which are relevant to this appeal. These are, I emphasise, the Secretary of State’s submissions. At point 4 he recorded the submission that the injuries which the appellant described did not fit with being hit as a result of her husband’s shooting. At point 5 he recorded the submission that the appellant had contradicted herself on the question of whether she had had an operation to repair the fracture of her nose, and in that connection referred to what Dr Steadman had said in his report. At point 12 the submission was made that in the light of a decision of the IAT in Y [2004] UKIAT 00048, the evidence of Dr Steadman should be approached with caution. At point 13 he recorded the submission that Dr Steadman’s reference to the appellant describing that she would consider suicide in the event of having to return to Ethiopia should equally be treated with caution.[16]At paragraph 47 the immigration judge turned to the main points of submissions made on behalf of the appellant. There were nine such points. It is not necessary to detail them, save to observe that none of them relates to any reliance on the medical report of Dr Steadman. It was the Secretary of State and not the appellant who was relying on Dr Steadman’s report.[17]Under the heading “Findings”, the immigration judge turned to his findings of fact at paragraphs 48 and following of his determination. Paragraph 48 stated that he had regard to the subjective and objective evidence relied on. In the light of the use of that same phrase in paragraph 45 of his determination, it is clear that the evidence that he was there referring to included the evidence in the appeal bundle submitted, which had contained the report of Dr Steadman. At paragraphs 49 to 57 he considered in detail the credibility of the appellant. He found her account to be totally lacking in credibility, essentially because of the implausibility of that account.[18]Covering the points that he makes as briefly as I can, he stressed first the submission of an invalid passport and failure to claim asylum on first arrival, which counted against her credibility, and did so as a matter of the statutory requirement for him to take account of those matters as damaging an applicant’s credibility pursuant to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Secondly, in relation to the raid in which her husband was said to have lost his life, the immigration judge cited the lack of OLF material in the home; the fact that no search was made of her bed; the fact that no attempt was made by the security men to get her to admit her husband’s guilt; the fact that her husband was said to run away, although there was nothing in the home to incriminate him: all as undermining the plausibility of that account. Thirdly, the immigration judge found it implausible that she would have been permitted to go to hospital and receive treatment, and then recuperate at length at home, without being bothered by the security men, in the light of her account of the security’s interest in her husband as a prominent member of OLF. Fourthly, against the background of her story the immigration judge found that the fact that she had made a formal complaint of the events of this raid was itself incredible. Fifthly, the immigration judge found implausible and incredible the fact that, against the background of her story, she had failed to keep her future political work a tight secret, in particular from a mere street girl, Beletu, who had been brought in by her mother. Sixthly, the immigration judge cited the implausibility of the appellant’s account that Beletu had turned up with the security men at the time when they had come to arrest her. It was only, of course, because of that account of Beletu accompanying the security men that she was able to ascribe to Beletu an explanation of the security’s sudden interest in her otherwise unknown work. Seventhly, the judge found implausible the account of the messages sealed in the sandwich, and further found incredible the appellant’s embellishment in relation to the covering of those messages in plastic. As to that, he said at paragraph 55:
“I am satisfied, having had the benefit of hearing the appellant give her evidence and being cross-examined, that this detail was an improvisation which she made in order to explain an account which was clearly unsustainable.”
Finally, the judge found implausible the fact that, upon the basis that she had been imprisoned for political activity on behalf of OLF, a group concerned with violent political activity, she would have been able to bribe her way to freedom.[19]In the circumstances the judge found himself in a position of being able to believe nothing of her story. He therefore said at paragraph 58:
“I am, in the light of the above, not satisfied that the appellant’s account of involvement with the OLF, the killing of her husband, her detention and treatment during detention, or the manner of her release, is credible.”
In his next two paragraphs the immigration

judge then proceeded as follows:

“59. In reaching findings, I have taken into account the evidence referred to. I attach no weight to the letter at page 23 of the appeal bundle, dated 15th April 2005, and headed with the name and address of the Oromo Liberation Front in Washington DC. This letter merely states without giving any degree of personal detail, that the appellant is an Oromo national and a supporter of the OLF. It states that she was subjected to harassment, intimidation, torture and imprisonment, but is of a very general nature, and I am not satisfied that it is helpful with regard to the particular circumstances of this appellant. 60. I note the medical evidence contained in the appeal bundle, and that such evidence indicates symptoms of post-traumatic stress disorder and injuries which could be consistent with the account the appellant has given. However, for the reasons indicated above, I am not satisfied as to the credibility of that account.”
He then went on in his final paragraphs to reject the appellant’s asylum and human rights claims.[20]Miss Naik submits that paragraph 60, in its own terms, and coming where it does in the judge’s determination, makes good the ground of appeal on which she relies. She submits in effect that the judge had made up his mind about the appellant’s credibility in the absence of any consideration at all of Dr Steadman’s report. In this connection she relies upon the case of Mibanga. In that case the appellant, who had been captured by Rwandan-backed rebels in the Democratic Republic of Congo, had complained inter alia of torture which had caused injuries described in a medical report of a Dr Norman. That appellant had also relied upon a country expert’s report. The complaint in Mibanga, which was accepted, was that the adjudicator there had disregarded both expert reports in concluding that that appellant’s case had lacked credibility, and had only turned to the reports thereafter. Both reports – medical report and country expert report – were clearly detailed and impressive documents. For present purposes Miss Naik concentrates upon the medical report, and submits in effect that this appeal and Mibanga stand on exactly the same ground.[21]I do not agree. The injuries described in the medical report in Mibanga were extraordinary in their severity and in their nature. There was a mass of scars of different kinds all over Mibanga’s body, described in detail, for instance, at paragraph 11 and 12 of Wilson J’s judgment in that case. Some of them were consistent with beatings with a belt. Many of them were consistent with bites from leeches, which reflected Mibanga’s allegation that he had been thrown by way of punishment into a barrel of leeches. In particular (and when I say in particular, I reflect the use of that expression found repeatedly throughout Wilson J’s judgment in referring to this aspect of the evidence in that case) there were two injuries, one at the tip and one at the base of Miganga’s penis, which were consistent with the application of electrodes to his genitals. Indeed, Dr Norman in that case had referred in her report to a book on the medical documentation of torture which provided the basis, or one of the bases, upon which she concluded that those injuries were consistent with the application of electrodes; see paragraph 25 of the judgment in that case.[22]It is against that background that although Wilson J, at paragraph 23 and elsewhere in his judgment, stated that he wished to be cautious about what he said about the facts of the case in the light of the consequence that the matter would have to be remitted for reconsideration at a new hearing, it is nevertheless clear from that paragraph 23 and elsewhere that he, and this court, had the very gravest doubts about the fact finding process which had been conducted by the adjudicator in that case. That, therefore, was the context in which Wilson J stated that the adjudicator had fallen into legal error by addressing the medical evidence only after she had conclusively rejected central features in the appellant’s case as incredible. One only has to recite the facts of that case to see why the approach of the adjudicator there should have led to such concern.[23]In a concurring judgment, Buxton LJ referred to the error of law as being one in which there had been an artificial separation amounting to a structural failing, and not just an error of appreciation, in dealing with credibility entirely separately from the medical evidence.[24]It seems to me that the logic of Mibanga does not apply to this case, essentially for two separate reasons. One is that the structure of the immigration judge’s reasoning here does not fall foul of that artificial separation and structural failure which were found to exist in Mibanga, and the other is that the medical evidence in Mibanga was so powerful and so extraordinary as to take that case into an exceptional area.[25]As for the first of those two points, I would again emphasise, as I have done in passing earlier in this judgment, the aspects of the determination which show that the immigration judge had in my judgment taken proper account of all the evidence of the case, including the medical evidence, at an appropriate stage, that is to say, while considering the appellant’s credibility in the first place. What are the indications of that? They are in my judgment manifold. There is the detailed exposition of the appellant’s account of her injuries – which as injuries are nowhere doubted – in the determination at paragraph 22 in the course of setting out the appellant’s evidence. That aspect of her evidence is not doubted. Secondly, there is the fact that at paragraph 45 the judge expressly referred to the appeal bundle, which we know contained Dr Steadman’s report. Thirdly, there are the repeated references to Dr Steadman’s report in the judge’s account of the parties’ submissions, albeit, as I have pointed out, only in the submissions made on behalf of the Secretary of State. Fourthly, there is the opening paragraph to the judge’s passage headed “Findings”, at paragraph 48, where he said expressly that he had regard to the subjective and objective evidence relied on, that plainly including Dr Steadman’s report. Fifthly, there is the fact that at paragraph 59 – that is to say at the end of, as well as, as he had done, at the beginning of the consideration of the appellant’s credibility – the judge stated expressly that in reaching his findings “I have taken into account the evidence referred to”.[26]What in particular was the evidence referred to that he had taken into account, apart from the appellant’s own evidence and account of her troubles? To ensure that there could be no doubt about, at any rate, two aspects of the other evidence in the case, the judge immediately went on to refer first of all to the OLF letter from Washington DC – in respect of which he gave his reasons for holding it as being of no weight, and no complaint is made of his treatment of that – and secondly at paragraph 60 he specifically stated that he had noted the medical evidence contained in the bundle, and also that that evidence indicated symptoms of PTSS as well as injuries which could be consistent with the account the appellant had given.[27]In those brief words he summarised the effective burden of the report to the extent that Miss Naik relies upon it, with the sole exception of what Dr Steadman says about the appellant’s cognitive dysfunction. Nevertheless, as the judge immediately went on to say, for the reasons that he had indicated above he was not satisfied as to the credibility of the account with which the injuries could be consistent. What was the effect of that statement on possible consistency? This was not possible consistency with an account of belt beating, or immersion in a leech barrel, or electrode application to the genitals, to refer back to Mibanga. It was not an account of consistency with stabbings or torture or anything of that kind. It was not consistency with direct assault of any kind at all. It was merely consistency with debris falling from above, in itself an essentially lacklustre gloss of what the appellant had really relied upon, which was shrapnel from a bullet or flying debris caused by ricocheting bullets.[28]In these circumstances, it seems to me that the judge had dealt with this material in an entirely adequate way. The most that Miss Naik was really able to say was that he should have made, a few paragraphs higher up in his judgment, whilst still dealing with the credibility of the appellant, some reference to the medical evidence, to the effect that it was noted but did not take the position any further. If that would have sufficed to prevent an error of law, it seems to me that the way in which the judge actually set out his reasons certainly sufficed, because throughout his determination he had made it clear that he was taking account of all the evidence in the case. He specifically said that in reaching his findings on credibility he had taken into account the evidence that had been presented to him, and in case anyone should be in any doubt as to whether that included Dr Steadman’s evidence he went on immediately to underline the fact that it did. So it seems to me that, for the two reasons which I have identified, this is not a Mibanga case.[29]That is enough to dispose of this appeal, but I would briefly go on to refer to two other decisions which are not irrelevant to the submissions which we have heard. The first of them is the IAT decision in HE (DRC Credibility and Psychiatric Reports) DRC CG [2004] UKIAT 00321. The tribunal in that case was presided over by Ouseley J. In particular paragraph 17 of that judgment is relevant to our case. The tribunal there said:
“A particular difficulty arises in a contention that a report should be seen as corroborating the evidence of an applicant for protection. A doctor does not usually assess the credibility of the applicant; it is not usually appropriate for him to do so in respect of a patient or client. That is in any event the task of the fact-finder who will have often more material than the doctor, and will have heard the evidence tested. So for very good and understandable reasons the medical report will nearly always accept at face value what the patient or client says about his history. The report may be able to offer a description of physical conditions and an opinion as to the degree of consistency of what has been observed with what has been said by the applicant. But for those conditions, eg scarring, to be merely consistent with what has been said by the applicant, does no more than state that it is consistent with other causes also. It is not common for the phrases which indicate a higher probative value in the observed conditions to be used. That limits the weight which can be afforded to such a report when judging the credibility of the claim. Rather than offering significant separate support for the claim, a conclusion as to mere consistency generally only has the effect of not negating the claim.”
[30]We think that those words are entirely applicable to the circumstances of this case. What the tribunal there said is generally the position. As such, it is of course capable of being subject to exceptions and, for the reasons which I have sought to give, I would regard Mibanga as being a good example of the exceptional situation in which a medical report can have clear corroborative weight which will need to be properly addressed.[31]Miss Naik did not in her written or other submissions refer to that paragraph, but sought to rely upon different paragraphs, paragraphs 19 and 22 of the IAT judgment in HE, where the tribunal is dealing, however, with a psychiatric report.[32]I would also refer to the AIT determination of 25 November 2005 in HH Medical Evidence Effective Mibanga Ethiopia [2005] UKAIT 00164. The tribunal there said:
“20. In the present case it is manifest that the immigration judge has arrived at his conclusions as to credibility by looking at the evidence in the round. At paragraph 16 of the determination he reminded himself that ‘I must look at the case in the round in light of all the relevant circumstances’. At paragraph 20 the immigration judge confirmed that he had ‘considered the appellant’s evidence in the round together with the background evidence and her interview record’. Plainly the medical report was part of the appellant’s evidence. 21. The tribunal considers that there is a danger of Mibanga being misunderstood. Judgments in that case are not intended to place judicial fact finders in a form of forensic straightjacket. In particular the Court of Appeal is not to be regarded as laying down any rule of law as to the order in which judicial fact finders are to approach the evidential materials before them. To take Wilson J’s cake analogy, all its ingredients cannot be thrown together into the bowl simultaneously. One has to start somewhere. There is nothing illogical about the process by which the immigration judge in the present case chose to approach his analytical task.”
I would approve those comments and emphasise how close the present case is to the circumstances of HH as distinct from those of Mibanga.[33]In sum I can find no error of law in Mr Dineen’s determination. He says he took account of all the evidence, and on a fair reading of his determination as a whole he plainly did, and it is clearly the case that he took account of the medical evidence in the report of Dr Steadman. He explained why it did not carry weight with him, as he had previously explained why the OLF letter had not carried weight with him; and indeed, having set out in detail in this judgment the nature of Dr Steadman’s report, it will be clear from this judgment (even if it was not clear from the immigration judge’s determination itself) why Dr Steadman’s report was incapable of taking the matter any further. Indeed, when one gives attention to the details of Dr Steadman’s report, it is clear why it was the Secretary of State who was relying upon it before the immigration judge rather than the appellant herself. Thus, in conclusion, there is no material error of law. That makes it unnecessary to rely upon the separate finding at paragraph 57 of the determination that, even if credibility were accorded to the appellant’s account, nevertheless she would not be a person of future interest to the authorities and therefore not at real risk at return. However, that separate fallback position is unneeded, although it is there.[34]For all the reasons which I have sought to set out in this judgment, I would dismiss this appeal.

LORD JUSTICE HOOPER: I agree.

LORD JUSTICE AULD: I agree that the appeal should be dismissed for the reasons given by my Lord, Lord Justice Rix. The appeal is therefore dismissed.

Order

Appeal dismissed.

Cited in 10 later judgments

and 1 more case