This is an appeal by SA against the decision of the Asylum and Immigration Tribunal (“The Tribunal”) on 17 November 2005 dismissing his appeals against refusal of asylum and the Secretary of State’s decision to remove him from the UK. The decision of the Tribunal was in turn a reconsideration of the determination of an adjudicator promulgated on 2 November 2004 dismissing the appellant’s Immigration and Human Rights appeal from a decision of the Secretary of State refusing the appellant’s application for asylum in the UK on the grounds of a well founded fear of persecution in Somalia. The Letter of Reasons was dated 21 July 2004.

The appeal involves a single point of law to the effect that, in considering the matter, both the adjudicator and the Tribunal failed to deal properly with certain medical evidence placed before them as corroborative of the claimant’s account of his persecution in Somalia, in that they dealt with it on the basis stated to be incorrect by the Court of Appeal in the case of Mibanga v Secretary of State of the Home Department [2005] EWCA Civ 367; [2005] 1INLR 377.

The appellant’s case is that he is a member of the minority Bendabow sub-clan of the Benadir clan in Somalia, and that he suffered persecution as a result. He left Somalia for the Yemen in 1996 and came to the United Kingdom in 2004 where he claimed asylum. He claimed in particular to have suffered torture in Somalia. Before the adjudicator and in support of his claim to have been tortured, he produced an undated medical report in the form of a letter from a Dr Ashu Madan, a general practitioner in South-east London with whose practice the appellant registered at some stage after his arrival. That report described signs upon the appellant’s account of his body of old injury, principally scarring, which it was submitted (although it was not so stated in the medical report) were corroborative of the appellant’s treatment in Somalia. There was also produced a letter from the United Somali Benadir Council confirming the minority clan status of the appellant.

The adjudicator dismissed the claim of the appellant on the grounds of credibility.

On 13 December 2004, the Tribunal granted permission to appeal on the basis that the adjudicator arguably had “compartmentalised the medical evidence”. However on 15 November 2005, upon full consideration, the Tribunal dismissed the appeal on the grounds that the medical evidence did not corroborate the case of the appellant.

Permission to appeal to the Court of Appeal was refused by the Tribunal on 13 February 2006 but was granted on paper by Maurice Kay LJ on 9 May 2006, confined to what was described as “the Mibanga point”

The appeal depends upon showing that the Tribunal should have allowed the appeal against the adjudicator’s decision of 14 October 2004. It is thus common ground that for practical purposes the appeal is directed against the reasoning of the adjudicator and depends upon the contention that the adjudicator did not deal properly with Dr Madan’s letter.

The Secretary of State denies that there was any error of law by the adjudicator given the particular facts and form of the doctor’s letter. In the alternative he argues that, even if the principle in Mibanga was breached in this case, a different and proper approach by the adjudicator would not have affected the outcome. The latter point is made by way of a respondent’s notice because it was not a reason expressed by the Tribunal.

It is pertinent to point out that, at the time of the adjudicator’s decision, Mibanga had not been decided in the Court of Appeal and was therefore not available to the adjudicator by way of guidance.

Since the decision in Mibanga is the basis of the appellant’s appeal in this case, I shall turn to it in a little detail. In that case the decision of an adjudicator was overturned by the Court of Appeal because, among other reasons, the medical evidence was not dealt with properly. The appellant claimed to be a refugee from persecution in the Congo and claimed to have suffered torture including the passage of an electrical current through his genitals. He relied on the report of Dr Norman, a doctor with special expertise in genito-urinary medicine, who was a part-time worker for the Medical Foundation for the Care of the Victims of Torture. She observed a mass of scars on his body, including two on his penis. Her report expressly addressed the question of the veracity of the history given by the appellant. She reported that a number of scars were consistent with beatings with a belt; that multiple circular scars on the legs and arms were consistent with bites from leeches on an occasion when, according to the appellant’s account to her, he had by way of punishment had been thrown into a barrel of leeches; that scars on his legs were consistent with being kicked with booted feet; and in particular the scars underneath his penis were consistent with having being tortured by the application of electrodes to his genitals. She went on to say that, in her opinion, the veracity of the appellant’s history was increased by his insisting that two of the scars had an innocent explanation; and that his emotional state when giving her his history, in the course of which he had at one point burst into tears and had been unable to speak for several minutes, was also, in her view, consistent with the history of torture which he had given to her (see paragraphs [12] and [13] of the judgment of Wilson J).

The adjudicator in Mibanga had made eleven findings that aspects of the appellant’s claims of persecution were not credible and, at that point in her determination, turned to Dr Norman’s report. She said as follows:

At paragraphs [24]-[26] of his judgment, Wilson J ruled that this approach involved an error of law, in that the adjudicator as fact finder had reached her conclusion before surveying all of the relevant evidence. He stated at paragraph [24] that:

At paragraph [25] of his judgment Wilson J concluded that the adjudicator had fallen into error when:

In agreeing with Wilson J, Buxton LJ succinctly stated:

The form of the adjudicator’s Determination and Reasons was as follows. Having set out the procedural history and described the evidence given by the appellant, he stated at paragraph 17:

The adjudicator then summarised the submissions of the parties, including the summary of the appellant’s submissions that

The adjudicator then proceeded to his determination of the asylum appeal at paragraphs 32-41.

At paragraphs 34-38 he gave detailed reasons for regarding the appellant as “a person of low-credibility”, specifically rejecting a number of details of the appellant’s account of persecution in Somalia and his flight to the Yemen and then to the UK.

At paragraph 39 the adjudicator noted objective evidence to the effect that those that fled the north of Somalia could now safely return there and then, at paragraph 40, he stated

The letter of Dr Madan was in the following form. Having stated that he understood that the appellant was an asylum seeker from Somalia, he set out the appellant’s account as follows:

The report continued

The report then proceeds to set out the details of the doctor’s physical examination, in which I again emphasise by the use of italics the only words relevant to causation.

Before the Tribunal, as before us, the appellant argued that the adjudicator considered and reached his conclusion as to the credibility of the account of the appellant before considering the medical evidence which it was submitted was corroborative of the appellant's story. The Tribunal dealt with this aspect quite shortly. It stated at paragraph 8 of its decision that:

In so stating, the Tribunal were pointing out the obvious factual difference between the nature and quality of the medical evidence in this case and that in the case of Mibanga. In moving on to describe the appellant’s presenting symptoms in the passages I have quoted, Dr Madan’s report amounts to no more than a record of (a) the appellant’s history as recounted to the doctor and (b) the appellant’s own explanations for the old injuries found on examination. The report expresses no separate view or opinion as to whether or not the explanation for the wounds found is objectively supportive of or consistent with the history given, nor indeed as to other possible causes.

The adjudicator was asked, and we are asked on this appeal, to infer that the doctor regarded the history as consistent with the signs of injury found on examination because he does not say otherwise. That does not seem to me to be a correct approach.

All that Dr Madan’s report does is to show that the account by the appellant to the adjudicator as to his treatment is consistent with the later account given to the doctor, without adding any additional confirmation or expert indication on the doctor’s part as to the inherent likelihood that such explanations are true.

In my view, such a report is inadequate for the task it is tendered to perform, namely to corroborate and /or lend weight to the account of the asylum seeker by a clear statement as to the consistency of old scars found with the history given. In this context the expert question of consistency should not be left to the adjudicator as a matter of inference or construction.

In any case where the medical report relied on by an asylum seeker is not contemporaneous, or nearly contemporaneous, with the injuries said to have been suffered, and thus potentially corroborative for that very reason, but is a report made long after the events relied on as evidence of persecution, then, if such report is to have any corroborative weight at all, it should contain a clear statement of the doctor’s opinion as to consistency, directed to the particular injuries said to have occurred as a result of the torture or other ill treatment relied on as evidence of persecution. It is also desirable that, in the case of marks of injury which are inherently susceptible of a number of alternative or “everyday” explanations, reference should be made to such fact, together with any physical features or “pointers” found which may make the particular explanation for the injury advanced by the complainant more or less likely.

In cases where the account of torture is, or is likely to be, the subject of challenge, Chapter Five of the United Nations Document, known as the Istanbul Protocol, submitted to the United Nations High Commissioner for Human Rights on 9 August 1999 (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) is particularly instructive. At paras 186-7, under the heading “D. Examination and Evaluation following specific forms of Torture” it states:

Those requested to supply medical reports supporting allegations of torture by asylum claimants would be well advised to bear those passages in mind, as well as to pay close attention to the guidance concerning objectivity and impartiality set out at paragraph 161 of the Istanbul Protocol.

Briefly continuing comparison of the instant case with the case of Mibanga, in that case the factors relevant to credibility plainly included Dr Norman’s express medical opinion as to the causation of the injuries and it was thus impermissible to determine the central question of credibility without having regard to that opinion expressed. In the present case there is no comparable opinion. The adjudicator and the Tribunal both considered, rightly in my view, that the explanations for the injuries which I have highlighted in paragraph 22 above came from the appellant and not from Dr Madan. He, like the adjudicator, was dependent entirely upon the explanations given by the appellant and there is nothing in his report to indicate that he stood back and considered them objectively for the purpose of his report. Because the explanations came directly from the appellant and were not the subject of separate, critical consideration by the doctor, the adjudicator was entitled not to regard them as medical opinion of the kind being dealt with in Mibanga.

Having said that, it does not detract in any way from the force of the decision in Mibanga to the effect that, where there is medical evidence corroborative of an appellant’s account of torture or mistreatment, it should be considered as part of the whole package of evidence going to the question of credibility and not simply treated as an “add-on” or separate exercise for subsequent assessment only after a decision on credibility has been reached on the basis of the content of the appellant’s evidence or his performance as a witness.

In this case, if one has regard simply to that section of the adjudicator’s decision headed “Determination and Reasons”, it is open to criticism in the light of “Mibanga” that, as a matter of form, the content of the medical report is dealt with as an “add-on”, following the section in which, as a result of an examination of the evidence of the appellant, the adjudicator found him to lack credibility and to have fabricated his case. Considered on that narrow basis, there appears to have been a breach of the approach prescribed in Mibanga, namely that medical evidence corroborative or potentially corroborative of an appellant’s account of torture and /or fear of persecution should be considered as part of the entire package of evidence to be taken into account on the issue of credibility.

However, looked at as a matter of substance, I do not consider that to be a fair reading of the decision. In this case, the adjudicator, in the course of setting out the submissions of the appellant, clearly referred to the submission that the medical report produced demonstrated that the appellant had suffered the injuries of which he was complained and two paragraphs later properly reminded himself of the burden of proof, a feature apparently absent in the case of Mibanga. In paragraph 40, as quoted in paragraph 19 above, the adjudicator made the point that the explanation for the marks on the appellant’s body came entirely from the appellant, which explanation the adjudicator rejected. Following Mibanga, it would plainly have been appropriate for the adjudicator to include a sentence noting the potentially corroborative effect of Dr Madan’s letter before expressing himself in those terms. However, the adjudicator did not have such guidance available and, since the potentiality of corroboration was in fact unfulfilled as a result of the lack of any positive opinion by Dr Madan as to the causes of the lesions observed, I do not consider that the lack of such a sentence undermines the validity of the adjudicator’s decision or demonstrates that the Tribunal was other than correct in the confirmatory conclusion which it reached.

Since the adjudicator correctly decided that the effect of Dr Madan’s letter depended entirely upon explanations given by the appellant which the adjudicator rejected, he was entitled to reach the conclusion which he did and no error in point of law has been demonstrated in this case.

The appeal should therefore be dismissed.

I agree.

I also agree.