Appeal - Weight to be given to expert evidence

SS (Sri Lanka) v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lords Justice Maurice Kay VP, Stanley Burnton and Lewison): 21 February 2012

The claimant was a citizen of Sri Lanka, of Tamil ethnicity, born in November 1982. Her son, born in 2001, was in the United Kingdom as her dependent. She came to the UK on a false passport and claimed asylum. She claimed that she feared to return to Sri Lanka, by reason of her ethnicity and because her husband had fought in the Liberation Tigers of Tamil Eelam (LTTE) between 1996 and 1998, and she had been a LTTE supporter. Her husband had subsequently disappeared, presumably having being detained by government forces.

She claimed that she had two brothers and a sister in the UK who were British citizens. The defendant secretary of state rejected the claimant's claim for asylum and she appealed to the Immigration and Asylum Tribunal who dismissed her claim. In 2009, a senior immigration judge ordered reconsideration of the immigration judge's determination and she was given permission to appeal.

At that appeal before another senior immigration judge, the claimant adduced medical reports in evidence. The reports stated that the claimant was of a disturbed state of mind and suffering from posttraumatic stress disorder (PTSD) and major depressive disorder and that she would be at risk of suicide if returned to Sri Lanka. The senior immigration judge applying the test set out in J v Secretary of State for the Home Department [2005] All ER (D) 359 (May) gave little weight to the evidence as he was not satisfied that the claimant had truthfully presented the symptoms of her PTSD, nor that there would be a real risk of suicide if she were returned to Sri Lanka. He accordingly dismissed the claimant's claims under articles 3 and 8 of the European Convention on Human Rights. The claimant appealed.

The claimant submitted that the senior immigration judge had erred in his treatment of the medical evidence. Although he had not been obliged to accept the doctor's diagnosis and prognosis, he had been required to exercise caution when considering it, and had not done so, and had not given good or adequate reasons for rejecting them. The assessment of the claimant's claims under articles 3 and 8 of the convention, and the risk of her suicide, had been based on his error in his assessment of the medical evidence, and therefore could not stand. In addition, he had failed to assess the impact of return on the claimant's son. The appeal would be dismissed.

The weight, if any, to be given to expert (or indeed any) evidence was a matter for the trial judge. A judge’s decision not to accept expert evidence did not involve an error of law on his part, provided he approached that evidence with appropriate care and gave good reasons for his decision (see [21] of the judgment).

In the instant case, the essential question for the immigration judge had been whether, if returned, there was such a high risk of suicide on the part of the claimant that it would have been a breach of article 3 of the convention to return her to Sri Lanka, or a breach of her rights under article 8 of the convention. The judge had given more than adequate reasons for his determination, which had disclosed no error of law (see [22], [28] of the judgment).

Charlotte Bayati (instructed by M & K Solicitors) for the claimant; Susan Chan (instructed by the Treasury solicitor) for the secretary of state.