When does an expert report constitute “independent evidence” of torture?

R (on the application of AM) v Secretary of State for the Home Department [2012] EWCA Civ 521 - Read judgment

Whether expert evidence relied upon by an asylum seeker amounted to “independent evidence” of torture was the key issue before the Court of Appeal in this case . The issue arose in the context of AM’s claim against the Home Office for wrongful imprisonment contrary to the UK Border Agency’s  Enforcement Instructions and Guidance. The Guidance, which contains the policy of the Agency on detentions (amongst other things), says that where there is “independent evidence” that a person has been tortured, that person is suitable for detention only in “very exceptional circumstances”.

AM, an Angolan national, was detained pending removal following an unsuccessful appeal from the refusal of her asylum claim, the Asylum and Immigration Tribunal having found her to have “no credibility whatsoever” and rejected her evidence that she had been raped and tortured. She later launched a fresh asylum claim on the basis of new evidence, in the form of an expert report by a wound and scar specialist, Ms Kralj, which linked the various scars on her body to torture. The claim was refused again but AM won her appeal. The Tribunal this time found that she had been raped and tortured as she had claimed, causing the scars on her body.

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Gay refugees cannot be sent home and told to hide their sexuality

HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 (07 July 2010) - Read Judgment

The Supreme Court has ruled that the government’s “Anne Frank” policy of sending back gay refugees to their home countries where they feared persecution is unlawful as it breached their human rights..

HJ and HT are both homosexual men and had been persecuted in their home countries – Iran and Cameroon respectively – after their sexual orientation had been discovered.

The court criticised the controversial policy, practised since 2006, of telling gay asylum seekers who feared prosecution in their home countries to hide their sexuality upon their return, rather than granting them asylum.  In the Court of Appeal the men’s barrister had referred to this as an “Anne Frank” policy, in that, like Anne Frank, the men would be safe if they hid from authorities but not if they didn’t.

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