RB (Sri Lanka), R (on the application of) v Secretary of State for the Home Department [2015] EWHC 813 (Admin)

Case No CO/11298/2012[2015] EWHC 813 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/03/2015
Before
HHJ COE QC SITTING AS A JUDGE OF THE HIGH COURT
Between
THE QUEEN on the application of RB (Sri Lanka)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr R Halim (instructed by Duncan Lewis) for ClaimantMr W Hansen (instructed by Treasury Solicitors) for DefendantHearing Hearing dates: 19 th February 2015
JudgmentHHJ Coe QC:
[1]The Claimant, RB, challenges the Defendant's decisions to:(i) refuse to treat his further submissions as amounting to a fresh claim for the purposes of paragraph 353 of the Immigration Rules by way of decisions dated 22nd October 2012, 20th November 2013 and 22nd December 2014; and(ii) detain the Claimant where the Defendant was on notice of the clinical opinions of Dr Etkind and Dr Adil in reports and correspondence dated 26th of June 2012 and 2nd July 2012 respectively.[2]The Claim Form was filed on 22nd October 2012. Interim relief to stay removal of the Claimant and expedite the case was granted on 22nd October 2012 and permission to apply for judicial review was granted on 19th December 2012 after an oral hearing.[3]The Claimant’s Further Amended Grounds beginning at page 140(vii) and dated 17th February 2015 set out that following the decision in GJ and Others (post-civil war returnees) Sri Lanka CG [2013] UKUT 319 (IAC) the Defendant of her own motion reconsidered the Claimant's case on 20th November 2013. Thereafter the hearing listed for 26th November 2013 was vacated by consent. The Claimant made further representations on 26th September 2014 and a decision was made by the Defendant on those representations on 22nd December 2014.[4]The Claimant is a citizen of Sri Lanka. His date of birth is 2nd January 1982. It seems that he arrived into the United Kingdom clandestinely on 16th January 2011. He claimed asylum on 28th January 2011 and was issued with IS151A and notified of his liability to removal and detention. He was interviewed on 10th February 2011 and his asylum claim was refused on 18th February 2011. On 28th February 2011 he appealed that refusal to the tribunal and his appeal was dismissed on 27th April 2011. Reconsideration was sought by the Claimant and refused on 24th May 2011. Having previously complied with his reporting restrictions, when he became appeal rights exhausted he failed to report after 24th May 2011 and became an absconder. He was arrested by the police on 16th March 2012 and was detained from that date until 21st December 2012.[5]It is unnecessary to set out the detail of the Claimant's previous judicial review proceedings. His attempts to resist removal from the United Kingdom by those proceedings were unsuccessful. Permission was only granted in these proceedings.[6]The basis of the Claimant’s asylum claim was that he would be at risk on return to Sri Lanka because of his (perceived) past association with the Liberation Tigers of Tamil Eelam ("LTTE”). It is his case that his brother and sister were killed in 1989 and 1990 on account of their work for the LTTE and he had worked in a shop for the LTTE. He said that he was targeted regularly and beaten up and at the end of the war against the LTTE in April 2009 he and his family were detained at the Vavuniya Chettykulam camp and he managed to escape by bribing police officers. He claims that he is a victim of torture and that his (perceived) association with the LTTE would place him at risk upon return to Sri Lanka.[7]At the time of the tribunal hearing the Claimant relied on a report from Professor Lingam dated 13th March 2011 to support his claim that he had been tortured. Professor Lingam concluded that the scars and other injuries were highly consistent with the history provided by the Claimant. Professor Lingam expressed concern about the Claimant's mental state and in particular considered that he was depressed.[8]I should mention that the copy of Professor Lingam's report in the papers is incomplete. It does not seem that there is now a complete copy available. However, it is apparent that the tribunal did have a complete report.[9]The tribunal decision is at page 151 in the bundle. In short the tribunal did not find the Claimant's evidence to be credible, considered that Professor Lingam's report was lacking and did not consider that the Claimant would be at risk on return to Sri Lanka.[10]The Claimant submitted further representations on 9th October 2012. He relies in this claim upon reports from Dr Etkind and Dr Adil dated 26th June 2012 and 7th July 2012 respectively. There is also reference in the pleadings to and evidence in the bundle of (although not really referred to in the oral argument before me) his activities sur place (engaging Members of Parliament to petition against the Government of Sri Lanka) which he says put him at risk on return to Sri Lanka.[11]The Claimant refers me to the Immigration Rules Part 12 Rule 353 dealing with fresh claims. This provides that:
“When a human rights or asylum claim has been refused or withdrawn… the decision maker will consider any further submissions and, if rejected, will then determine if they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
[12]In the case of SSHD v Boybeyi [1997] Imm AR 491, it is set out that the “acid test” for a fresh claim is “that there should be a realistic prospect that a favourable view could be taken of the new claim which was not a very high test”. In WM (DRC) v SSHD [2006] EWCA Civ 145 at paragraph 7 it is set out that the rule “only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. Firstly the question is whether or not there is a realistic prospect of success in an application before an adjudicator, but not more than that and secondly… the adjudicator himself does not have to achieve certainty but only to think that there is a real risk of the applicant being persecuted on return”. The third feature is that there must of course be anxious scrutiny of the material.[13]In R (AK) (Sri Lanka) v SSHD [2009] EWCA Civ 447 at paragraph 34 it is set out that “realistic prospect of success” means only more than a fanciful such prospect. The Claimant submits that in this case the medical evidence quite clearly surmounts this modest and not very high test.[14]By reference to the case of Devaseelan v SSHD [2002] UKIAT 00702 at paragraph 39 it is agreed between the parties that the first adjudicator’s determination (in this case the First Tier Tribunal (“FTT”)) should always be the starting point. The Claimant concedes that the FTT was quite right to dismiss the claim on the medical evidence and not to place any weight on that evidence. The decision of the FTT is in the bundle at page 151 and the findings are set out at page 157 beginning at paragraph 26. At paragraph 27 Immigration Judge Turquet sets out that “Given the inconsistencies and implausibility of certain aspects of the Claimant’s claim I make an adverse finding of credibility against this Appellant. I have been unable to rely on the veracity of his accounts. I find that I can give no weight to his claim to need international protection”.[15]There are very many inconsistencies which the Immigration Judge found in the Claimant’s evidence. There are too many to list in full. As examples, Judge Turquet felt that the Claimant had exaggerated his knowledge of the whereabouts of fuel to embellish his asylum case that he would be at risk on return. It was not accepted that he would have surrendered himself as he alleges. His account about dates was inconsistent as well as the sequence of events he gave. His account of being detained for one year and three months and then released on payment of a bribe was not accepted. His accounts of how often he was beaten whilst at the camp were inconsistent. He claimed that the scarring around his eyes was sustained by being bashed against a wall when he was suspended upside down, but said that all the other marks resulting from blows and beatings with wires were not visible. The scars he had had from being beaten (whether for three months or every week) had faded whereas on his account he would last have been beaten six weeks before he was interviewed on this topic. The tribunal judge considered that had he been ill-treated as claimed there would be marks still showing.[16]The tribunal judge specifically found that Professor Lingham’s report gave little consideration to the other causes of the Appellant’s scars and failed to comply with the Istanbul protocol. The report failed to consider some of the Claimant’s alleged other symptoms. The tribunal judge was not happy about Professor Lingham’s conclusion that the Claimant was clinically depressed particularly given that Professor Lingham is not a psychiatrist. The view that the Claimant had lost his memory and could not think was not consistent with the very detailed answers he gave in his asylum interview. The tribunal judge specifically noted it is only when an inconsistent answer is put to him that the Claimant refers to being hit on the head and being confused. The tribunal judge considered that even if his finding that the Claimant was not detained and released was wrong if he was released on payment of a bribe that is an indication that the Claimant was not of adverse interest to the authorities at that stage. He was able to leave Sri Lanka by air without difficulty. The tribunal judge did not accept that the Claimant did not know the name of the airline on which he flew or the country to which he flew. In short the tribunal judge dismissed each point put forward on the Claimant’s behalf to suggest that he would be at risk of persecution upon return.[17]This then is the starting point from which I have to consider the new medical evidence and the Claimant’s claim. First of all of course the Claimant relies on the medical evidence to say that the tribunal judge was correct that there would have been more scarring had he been tortured as alleged and the report of Dr Etkind shows that there is more scarring. The Claimant relies upon the fact that it is not just he who repudiates Professor Lingham’s report but the tribunal judge did. The Claimant refers me to Dr Etkind’s report to say that it makes good all of the deficiencies identified by the tribunal judge and is novel evidence. Clearly it was not available to the FTT. It is right that Dr Etkind’s report gives a detailed description of the scars, closely follows the Istanbul Protocol, provides a clinical opinion as to the effect of the mental disorder upon the Claimant’s memory and the doctor was aware of the concerns about the Claimant’s account. The report is at page 414 and I agree and find that it is a thorough, comprehensive and properly compiled report which complies with the requirements of an expert and with the Istanbul Protocol. He analyses the scars which are consistent or highly consistent with the sort of injury described by the Claimant in the context of his being tortured and the overall evaluation of Dr Etkind is that the scarring represents significant and sustained, deliberately inflicted injury which fits with the account of torture which the Claimant provided to him. He considers that it is most unlikely that a series of unusual accidents could have produced the marks and in particular the scars on the lower limb fit well with burning injuries as described. He concluded that when taken together with the evidence of mental disturbance the medical evidence in support of the Claimant’s account is compelling. Dr Etkind considers that the symptoms of slowness of thought and memory deficit are more likely to be related to post-traumatic stress disorder (“PTSD”) and depression. Memory loss is a characteristic of PTSD. Slowness of thought occurs in depression. Dr Etkind considers that the Claimant’s treatment has been inadequate in particular because of the absence of psychological therapy or drug therapy.[18]Dr Adil agrees that the presentation is consistent with PTSD and recommends drug therapy and trauma therapy. Both doctors consider that the Claimant should have been released from detention.[19]In the second bundle are the detention review documents and the recommendations of Dr Etkind on 20th June 2012 that the Claimant should be released immediately and of Dr Adil on 2nd July 2012 that the Claimant’s symptoms were worsened by detention are set out. The Defendant’s position is identified at page 469 at paragraph 7 where Dr Etkind’s view as to the scarring is acknowledged but the Defendant makes the point that it does not address the fundamental inconsistencies identified by the tribunal. The tribunal assessed the torture claim in the round not just on the medical evidence and whilst acknowledging that the tribunal’s findings would probably have been different had Dr Etkind’s report been available the other findings would have stood and so the Defendant concludes that it is still appropriate to rely upon the tribunal’s rejection of the torture claim. Thus the Defendant does not accept that Dr Etkind’s report amounts to independent evidence of torture or that the torture policy in chapter 55.10 of the Enforcement Instructions and Guidance (“EIG”) is even engaged.[20]The Defendant’s decision letter is at page 277 dated 22nd October 2012 and at page 303 paragraph 54 sets out that “There can be no doubt that Dr Lingham’s report was accepted by the immigration judge as expert evidence of scarring and neither his credentials or expertise in this regard were called into question”. The Claimant contends that this is unsustainable in light of the immigration judge’s findings. The Defendant acknowledges (paragraph 59) that Dr Etkind is a psychiatrist but still does not consider that this undermines the findings of the FTT.[21]Thus the Claimant submits that the Defendant relied on the credibility findings as being essentially decisive. The Claimant cites Mibanga v SSHD [2005] EWCA Civ 367 and in particular paragraph 24 to support the contention that the medical evidence, that is, the expert evidence should not be viewed simply as an “add on” to the tribunal’s findings as to the Claimant’s credibility. The question of the Claimant’s credibility would have to have been looked at in the round which should now include Dr Etkind’s evidence. Thus the Claimant alleges that paragraph 19 of the Defendant’s skeleton argument is incorrect when it submits that the medical experts are not permitted to usurp the Defendant’s role as decision maker when considering whether or not the further submissions amount to a fresh claim.[22]The Claimant also refers me to the case of AM v SSHD [2012] EWCA Civ 521 as further support for this argument that the expert’s role is to assess consistency and the expert’s report and the Claimant’s account “feed” on each other. In that case the expert’s report was found to have constituted independent evidence of torture. The expert believed the Claimant’s account in that case. That was considered to be significant and not just taking the Claimant’s account at face value. The Court in that case emphasised that a requirement for “evidence” is not the same as a requirement of proof, conclusive or otherwise. The Claimant refers to paragraph 12 of the Defendant’s decision of 19th July 2012 (at page 202 in the bundle) where she sets out that whilst the psychiatrist recommends a review of detention on the basis that it is having an adverse effect on the Claimant the psychiatrist does not categorically state that the Claimant is not fit to be detained. Dr Etkind’s view that the Claimant should be released was predicated on his belief that the Claimant had been the victim of torture which the Defendant does not accept. The Claimant says that this approach is wrong in the light of the authorities referred to.[23]Finally on the fresh claim issue the Claimant contends that the Defendant has failed properly to consider the Country Guidance in GJ (see above). In the letters of 20th November 2013 and December 2014 the headnote is simply replicated whereas as per the Amended Grounds the Claimant says that he will in all likelihood be on a “stop” list (see paragraph 356 GJ). The Claimant referred to his Amended Grounds at paragraphs 30 – 36 for features which he alleges apply to him arising out of the Country Guidance in GJ but which have not been specifically considered by the Defendant.[24]In respect of the second limb of the claim, the alleged unlawfulness of the Claimant’s detention, the Claimant’s point is that the Defendant has to show very exceptional circumstances to detain someone with mental health issues or who has been tortured. This is set out at Chapter 55.10 of the Defendant’s Enforcement Instructions and Guidance at bullet points 5 and 6. “Very exceptional circumstances” is a high hurdle and a balancing process is required and I am referred to the case of Das v SSHD [2014] 1 WLR 3538 at paragraph 67 and 68. The Claimant relies on the report of Dr Etkind and the letter of Dr Adil indicating that the Claimant’s mental health could not in fact be managed internally in a detention centre and that Dr Adil wrote to the NHS to recommend trauma therapy because there was none available in the detention centre. By reference to the AM case the Claimant relies upon the medical evidence to contend that the Defendant failed to give due regard to the significant change which had occurred as a result of this evidence to argue that the Defendant’s view was no longer sustainable after the medical evidence was available.[25]The Claimant rightly says that the risk of absconding is not “a trump card”. The Defendant has not considered the question of an electronic tag or a curfew or reporting conditions. The Claimant refers both to the policy principle and the ‘Hardial Singh’ principle (R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704) and urges that the very exceptional circumstances justification is not met here and there was no imminent prospect of removal.[26]The Defendant submits that even if Dr Etkind’s evidence is new and probably better than Professor Lingham’s the question for me to decide is whether or not the Defendant was irrational or Wednesbury unreasonable to conclude that the Claimant had no realistic prospect of success before a fresh immigration judge. She submits that in answering that question I need to consider whether there is a realistic prospect of reversing the credibility findings of the immigration judge but also secondly and importantly whether or not there would be realistic prospect of establishing that the Claimant would be at risk on return to Sri Lanka in light of the current Country Guidance. The Defendant’s position is that her decision was clearly rational.[27]By reference to WM (DRC) v SSHD [2006] EWCA Civ 495, I am reminded that judicial review is the means by which the Defendant’s decision as to the existence of a fresh claim can be reviewed and that the decision can only be impugned on Wednesbury grounds. I need to consider whether the Defendant asked herself whether or not there was a realistic prospect of an adjudicator, applying the principle of anxious scrutiny, thinking that the Claimant would be exposed to a real risk of persecution on return. The Defendant contends that although Dr Etkind’s report is new evidence it does not assist the Claimant in terms of his credibility nor does it contribute to establishing that he is at risk on return. The Defendant argues that this is simply recourse to medical evidence to bolster a claim where the credibility of the Claimant has been rejected. I am referred to the case of Kaimon v SSHD [2008] EWHC 2733 (Admin) where the weight to be given to a medical report was considered and it was accepted that even where there is material which is new and which is of some corroborative weight it does not always follow that there will inevitably be a realistic prospect that an immigration judge might come down in the Claimant’s favour. In that case the facts reported to the doctor were materially different from those put before the immigration judge. Thus it was considered that the doctor’s report did not neutralise or explain away the major credibility issues facing the Claimant and his human rights and/or asylum claim even though the fresh evidence was considered together with the existing evidence in the round and anew.[28]I was referred to HS (Uganda) v SSHD [2012] EWCA Civ 94 in which an appellant’s account had been rejected by the immigration judge in almost all respects. New medical evidence was produced. There were considerable inconsistencies between the account given to the doctor and the account given previously and the Secretary of State considered that the medical evidence did not make the Claimant’s claim credible. It was not considered that the medical evidence could meet the credibility issues and that even had the appellant been injured deliberately in one or more of the particulars he alleged he had not been injured as a result of detention based on his membership of an opposition party in Uganda. In that case it was considered by the medical expert that the Claimant was suffering from PTSD.[29]I was referred to MN (Sri Lanka) v SSHD [2014] EWCA Civ 1601 which is not a fresh claim decision but which the Defendant relies on for its emphasis on the second part of the test. The tribunal was held to be right to find that even if the appellant’s account were accepted at face value and he had been detained and tortured by the army as he described he would no longer be of interest to the authorities if he were to return to Sri Lanka.[30]In the letter refusing the Claimant’s asylum claim on 18th February 2011 the Defendant set out that the Claimant claimed that as a result of torture in the camp he had sustained injuries as a result of being beaten with iron bars, iron wires and batons but when asked about scarring said that “all marks that were sustained by blows and beatings with wires are not visible now but I have internal injuries”. The Claimant said “I did have [scarring from lacerations resulting from beatings with wires] but these scars have faded away now”. He said that he had no medical conditions and that he had injuries but that they could not be seen.[31]As set out in the decision of the FTT the Claimant said that he was detained from September 2009 to 5th January 2011 and was kept and beaten once a week for one year and three months. The tribunal considered the Claimant’s evidence and considered this and other discrepancies and the Defendant submits that this was a multi-faceted multi-factorial assessment which is not subject to reversal merely because of the reports of Dr Etkind and that the Defendant’s decision on this point is a rational one. The decision letter at page 277 (dated 22nd October 2012 – the first decision) properly considers the new evidence but concludes essentially that in light of the credibility issues and the failure to establish a risk on return the decision is an entirely rational one and not subject to attack. The Defendant argues that whilst it is right that the new Country Guidance should be applied that does not help the Claimant because the risk categories have been restricted and not expanded. There is no merit in the criticism that the Defendant relies upon the headnote only when the headnote faithfully reproduces the Country Guidance identified in the body of the decision. The medical evidence does not address the issue of risk on return, clearly. The decision letter of 20th November 2013 at page 321 (i) is a proper consideration says the Defendant and the refusal letter in 2014 is to the same effect.[32]The Defendant argues that the Claimant’s detention (from March 2012 until his release on 20th December 2012) was lawful. The Claimant argues that from the date of receipt of Dr Etkind’s report it was not. The Defendant does not concede that Dr Etkind’s report is independent evidence of torture but if it is so that the Defendant has to establish that there were very exceptional circumstances to maintain the Claimant’s detention then she says that there were very exceptional circumstances. The same argument applies to the issue of the Claimant’s mental illness. The Defendant relies upon the statement of Mr Wylie and the history relied upon of the Claimant’s failure to report after he became appeals rights exhausted and effectively absconded. I am referred to Mr Wylie’s analysis at page 138 paragraphs 26 onwards and page 139 paragraphs 33 onwards which the Defendant submits is an unimpeachable analysis. He became an absconder. He was only located because he was encountered by the police. At the time of his detention he had no family or friends in the UK and said that he had no medical conditions or health complaints. Following receipt of the medical evidence the Claimant’s detention was reviewed but the case worker did not accept that the report constituted independent evidence of torture, or disclosed a serious mental illness which could not be satisfactorily managed in detention. Thus it was not considered that the EIG Guidance chapter 55.10 was engaged at all. Even if it were however his very high risk of absconding and his very poor immigration history together with his lack of credibility gave rise to very exceptional circumstances to maintain detention. I was referred to the case of SM v SSHD [2014] EWHC 1974 (Admin). In that case having not raised any issues about torture initially the Claimant told the healthcare team in detention that he had pains as a result of beatings by the army in Sri Lanka. He was seen again by the healthcare team and showed them some scarring. A medical report was obtained which concluded that some of the scarring was diagnostic of or highly consistent with ligature marks from restraint during torture. Some were consistent with and some typical of being hit with a cricket stump. Some had the classic appearance of cigarette burns. It was concluded that the Claimant was suffering from a depressive illness with features of anxiety and PTSD. Based on those findings the doctor had no reason to doubt the Claimant’s claimed history of torture. Given the Claimant’s denial of having been tortured or failure to make any such claim the judge held that this could not amount to independent evidence of torture and even in the of the subsequent section 35 report the Claimant’s assertions and the scarring did not amount to independent evidence of torture. Importantly in that case the judge concluded that even if there were independent evidence of torture given that there were clearly exceptional circumstances to detain the Claimant any damages would be nominal only.[33]The Defendant argues that the Claimant’s mental illness is not serious and could be managed in the detention setting and that the threshold is not met.[34]In so far as the Claimant pursues the unlawfulness of the detention pursuant to a breach of the Hardial Singh principles the Defendant says that this requires a different approach and agrees that absconding or the risk thereof is not a “trump card” but that there was always a realistic prospect that the Claimant would be removed in a reasonable period of time the only barrier being his repeated judicial review claims. The difference in approach is whether the Court should make its own decision or whether it should consider the Defendant’s policy.[35]The Defendant argues that the Claimant could not be tagged because he is not a foreign criminal.[36]In reply the Claimant pointed out that each of these cases has to be considered separately and on a fact sensitive basis and that there can be no general sense in which decisions on the facts in one case can be applied to different facts. I am referred to the fact that the Claimant has given an account of his being tortured. The Claimant refers to his account of why he absconded. The Claimant reiterates that it is clear that his mental health was not being satisfactorily managed.[37]Having set out in detail the submissions by reference to the documents and the authorities I can express my conclusions and the reasons for those conclusions quite briefly.[38]In the “fresh claim” issue I accept that the evidence of Dr Etkind in particular and also of Dr Adil is new evidence which was not available to the FTT. I accept that Dr Etkind’s evidence is in a proper form and complies with the duties of an expert. I accept that it is comprehensive and satisfies the requirements of the Istanbul protocol. I accept that it considers alternative causes for some of the marks found. I accept that the evidence of Dr Adil being a psychiatrist as to the Claimant’s mental health is expert evidence from an appropriate expert.[39]However, I have reached the clear conclusion that considered holistically with the evidence before the FTT the Claimant has not crossed the relatively modest threshold to establish that he has a realistic prospect of success before a fresh immigration judge. I do not consider that there is a realistic possibility of reversing the credibility findings of the immigration judge. Further I do not consider that the medical evidence gives the Claimant the required prospect of successfully establishing that he would be at risk on return to Sri Lanka in light of the current Country Guidance. Primarily the reason behind this conclusion is that an analysis of the new medical evidence compounds the Claimant’s credibility difficulties rather than neutralising or explaining them. On behalf of the Claimant it is submitted that the tribunal judge was right to say that had the Claimant been beaten as he alleges there would be more scarring than that referred to by Professor Lingham. The Claimant submits that the more extensive scarring referred to in Dr Etkind’s report shows that the judge was right and establishes that there is evidence therefore of torture. However, this argument completely ignores the fact that the Claimant himself gave evidence to the effect that other than the marks around his eyes he had no scarring which was still visible in consequence of the beatings he received. Assuming he had the marks, Dr Etkind now refers to at the time that he gave this evidence, it can only be inferred that he knew that those marks did not come from the beatings he alleges. There is no other reasonable explanation as to why he would say he had no visible scarring other than that around his eyes as a result of the torture. The only other logical conclusion would be that these marks had occurred since he gave that evidence. This does not support the Claimant’s claim at all. Even on the basis, which I accept, that the FTT rejected the evidence of Professor Lingham as being defective and that the defects are rectified by Dr Etkind it cannot begin to explain away the Claimant’s own evidence.[40]At section 1 of the medical report (page 415 in the bundle) Dr Etkind sets out the history from the Claimant. The Claimant said that he was “in” the Liberation Tigers of Tamil Elan (LTTE) and that he was captured by Sri Lankan security forces while on a boat in April 2009. He said that he was repeatedly interrogated every 2 or 3 days over a three month period until he signed form which he thought was a confession document. After approximately three months the beating and physical abuse stopped but he was detained for a further year or more.[41]In the report of Dr Adil at page 443 in the bundle the account given is that the Claimant was a member of the LTTE along with his whole family. He was arrested by the Sri Lankan army and was tortured after being jailed for 18 months. He was beaten up with metal rods after being hung upside down and this resulted in him being in a “coma for six months”.[42]Having considered the documentation I am not aware that the Claimant has previously alleged that he was a member of LTTE. At its highest he has been described as a supporter (see page 218 in the bundle) and who worked in an LTTE owned petrol station. It was claimed that he was taken to an army camp on 5th September 2011 where he was tortured over a three month period until he signed a confession document (page 218). This was following his arrest on 16th April 2009. The medical evidence taken together with the rest of the evidence and in particular the findings of the FTT (for example with regard to there being no evidence of any confession) further undermines the Claimants credibility rather than rehabilitating it.[43]There is nothing in the Country Guidance following the decision in GJ which the Defendant has not taken into account and/or which improves the Claimant’s position. The medical evidence does not assist the Claimant in that regard. The FTT and the Defendant have properly considered the aspects of the Claimant’s claim upon which he relies in suggesting he may be at risk. His involvement in working at a petrol station owned by and/or patronised by LTTE members does not put him at risk. The fact of him being a failed asylum seeker does not put him at risk. The fact of him having bribed officials suggests he may be of less rather than more interest to the Sri Lankan government. I accept the Defendant’s point that the GJ Country Guidance firstly was considered and secondly does not suggest that this Claimant would be at risk on return.[44]The Claimants claim on this issue must therefore fail.[45]I accept that Dr Etkind’s opinion is that the marks and scarring on the Claimant’s body are consistent and in some instances highly consistent with the Claimant’s account of torture. I do not consider for the reasons set out above that it can amount to independent evidence of torture. I accept that Dr Etkind was aware of the concerns expressed about the Claimant’s credibility and his account. However the doctor’s opinion cannot usurp the role of the immigration judge. The Claimant specifically said that he had no visible scarring apart from that around his eyes as a result of the torture. That was his evidence. Dr Etkind’s findings do not help the Claimant explain that evidence. The Claimant’s account of his detention and torture is inconsistent. These factors taken together means as I find that the medical evidence cannot amount to independent evidence of torture.[46]The point is made clear by reference to paragraph 34 of the Claimant’s skeleton argument where it is submitted that “those credibility findings require revisiting in light of the fresh medical evidence discovering fresh scarring”. It is simply not credible that Dr Etkind could have discovered “fresh” scarring of which the Claimant was unaware assuming it was present at the time that he made his asylum claim.[47]I accept that in order to help the Claimant recover from his PTSD he would benefit from the treatment recommended by Dr Adil in his letter to Dr Anderson dated 2nd July 2012. That is not the same as saying that his symptoms could not be managed in a detention setting.[48]I do not consider that Chapter 55.10 of the EIG was ever engaged.[49]However, even if I am wrong about that I have reached the conclusion that there were very exceptional circumstances here justifying the Claimants detention even in the presence of evidence of torture and/or mental illness. He absconded immediately he became appeal rights exhausted. The Defendant had clear evidence not just that he was at risk of absconding but that he had in fact absconded when there seemed to be no other avenue open to him. As set out in the statement of Mr Wylie and in the Defendant’s decision letters the Defendant has not simply pointed to the absconding risk as a trump card (which it is not). The Defendant has assessed the Claimant’s circumstances and identified that he would abscond and I find on the facts that that decision is not an unreasonable one. In the circumstances even if the EIG policy were engaged there would be very exceptional circumstances and the damages payable would be nominal.[50]For these reasons the Claimant’s claim is dismissed.

Cited in 1 later judgment