Supreme Court ruling a victory for torture survivors seeking asylum
On Wednesday, the 6 March 2019 the Supreme Court ruled in the case of KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10. Asylum seekers and top London immigration solicitors should be jubilant about the landmark decision.
Why? Well because the Supreme Court ruling survivors of torture may now find it easier to secure Asylum in the UK. In the important decision, the Supreme Court overturned a previous tribunal and Court of Appeal ruling that an Asylum seeker from Sri Lanka self-inflicted his own torture by proxy to bolster his Asylum claim.
I have to confess that whilst delighted by the court ruling my emotions were not those of jubilation but sadness. I suspect the pleasure of most top London immigration solicitors in the ruling will also be tinged by the horror of reading about the torture experienced by the Sri Lankan man and the thought of the subsequent emotional difficulties that he must have experienced. It would not be unreasonable to speculate that the emotional trauma experienced in the aftermath of physical torture could only have been exacerbated after the Home Office rejected his Asylum claim and the tribunal and Court of Appeal ruled against his Asylum claim.
Given the recent high court ruling reported as R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin) the government must feel that its hostile environment is under attack from the judiciary. In the hard-hitting judgment of R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department, the high court said that the Home Office right to rent scheme causes racial discrimination and is in breach of the European Convention on Human Rights.
These two decisions, made within a week of one another, will encourage Immigration campaigners wholly opposed to the hostile environment policy and add extra ammunition for top London immigration solicitors when appealing against Home Office decisions.
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The case of KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10.
In my opinion, you have to be made of marble to not feel for KV, the 36-year-old Tamil man, whose medical evidence that he was tortured was rejected by the Home Office, the tribunal and by the Court of Appeal. Perhaps you might think that this was a case where another Asylum seeker was trying to pull the wool over Home Office caseworker’s eyes and claim that he had suffered torture with no evidence to back up his Asylum claim.
That was not the case with KR. There was clear expert medical evidence of torture. The case centred on whether KR has asked someone to inflict the torture on him to improve his chances of successfully claiming Asylum. Supposing, for one moment, that KR had asked someone to inflict grievous injury on him, how desperate must he have been to escape Sri Lanka?
KV has scars on his back consistent with being branded and two on his right arm. The Home Office rejected his account of torture and wanted to send him back to Sri Lanka despite KR being supported by organisations with expertise in assessing allegations of torture, namely Freedom from Torture, Medical Justice and the Helen Bamber Foundation.
KR claimed Asylum eight long years ago, having suffered the torture ten years ago. You may think that the emotional torture of waiting for an Asylum decision is finally over for KR but you would be wrong. This week’s Supreme Court decision does not grant KR Asylum. His case has still not been determined. The appeal is remitted to the tribunal to determine for a second time.
When the tribunal reconsiders the Asylum claim of KR the best London immigration solicitors anticipate that the Home Office will carefully consider the Supreme Court judgment and in particular the ruling that:
• The tribunal or court should give weight to expert medical evidence when determining torture claims by Asylum seekers;
• The Home Office and judiciary should follow the established international standard on torture cases, known as the Istanbul protocol;
• Self-inflicted torture by proxy is an inherently unlikely phenomenon and medical experts are not required to consider, in every torture case, whether the torture injuries could have been self-inflicted by the Asylum seekers or by a proxy with his or her consent.
The best London immigration solicitors expect that the case of KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10 will make it far harder for the Home Office to determine that an Asylum seekers account of his torture are not credible where there is strong medical evidence in support of the torture claims.
The hostile environment and Asylum seekers
You may think that with two decisions challenging the Home Office hostile environment policy that the tide is turning. The top London immigration solicitors will tell you that is not necessarily the case.
In a week that saw a victory against right to rent checks and for torture victims there are other Asylum seekers still battling on. Take the Guardian newspaper case of a man facing deportation to Malaysia, where homosexuality is illegal. The Home Office apparently said it did not believe Yew Fook Sam was homosexual as it was suspicious that he did not have a boyfriend. Unable to be openly homosexual in Malaysia, he seeks Asylum in the UK, fearing that he will be forced to undergo conversion therapy if a new Asylum application fails and he is deported back to Malaysia. Supporters of Yew Fook Sam say that it is unreasonable to say that an Asylum seeker has to prove that they have had a homosexual relationship whilst living in the UK in order to prove their homosexuality to the standard required by a Home Office caseworker or Immigration tribunal judge.
In another interesting court case development a family court judge has said that he cannot make an order in the family court to bar the Home Office from deporting a failed Asylum seeker whose daughter would be at risk of female genital mutilation if taken abroad. The case, brought by Suffolk County Council, is said to be the first of its kind with the local authority wholly focussed on the child’s welfare rather than Immigration policy. Whilst the president of the Family Division of the high court has concluded that a judge cannot make an order in court proceedings to bar deportation it is hoped that the publicity generated by the high court case will assist the child’s mother in her battle to remain in the UK with her daughter.
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OTS Solicitors are specialist in Immigration law matters and are recommended for Immigration law in the law directory, Legal 500. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law.