Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11912/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 January 2017
On 13 February 2017

Before

UPPER TRIBUNAL JUDGE McWILLIAM

Between

i k
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms C Fletcher of Counsel instructed by Ahmed Rahman Carr Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Turkey and is of Kurdish ethnicity. He made an application for asylum and this was refused by the Secretary of State in a decision of 20 August 2015. He appealed against that decision and his appeal was dismissed by Judge of the First-tier Tribunal Barker in a decision that was promulgated on 13 July 2016 following a hearing at Hatton Cross on 27 May 2016 and 24 June 2016. Permission was granted to the appellant by Upper Tribunal Judge Bruce on 9 December 2016. Thus the matter came before me.
2. The appellant's account, much summarised, is that he was arrested on five occasions. He was arrested in 1996 and detained for five days, on 11 December 2000 when he was detained for two days, on 11 December 2008 when he was detained for three days, on 17 May 2013 he was detained for three days and finally in February 2015 he was arrested and detained for 35 hours. His account is that he was arrested for political reasons, but not charged with criminal offences. He gave an account of mistreatment during periods of detention. He gave oral evidence and relied on a witness statement.
3. The appellant relied on an expert report prepared by Dr F J Gilmurry. Dr Gilmurry examined the appellant on 12 January, 8 and 22 February and 8 March 2016. The conclusions are at paragraph 67, but the expert dealt with each individual scar and drew conclusions between 46 and 57. The relevant paragraphs read as follows;
46. LI. This scar is that of a laceration, for an open wound across the bridge of the nose. It is highly consistent with Mr Karadogan's attribution of a kick to the face (para. 18).
47. Blunt trauma to an area where skin is stretched over bone (the nasal bone in this case), causes the skin to split. Such wounds on the face bleed profusely. Where the split skin edges are close together the wound heals naturally to form a linear scar as seen in the clinical photograph 1 (Appendix B). He thought his nose had been broken but on palpation, (digital examination) of the scar, no callus (the reparative growth of osseus tissue around a fracture) was palpable.
48. I have considered other possible causes for this scar. He gave no history of childhood or sporting injuries at school. He worked in the clothing industry as a young man which did not expose him to any significant injury. As a national serviceman he was not involved in any military action. With these observations in mind I consider his attribution to be the most likely.
49. L2 is a scar, which is highly consistent with his attribution, from an injury sustained during an arrest. He was assaulted in the back of a vehicle, fell and struck the more exposed part of his upper forearm on something sharp. This scar is that of an incised wound similar to that of a surgical wound. As to other possible causes, bearing mind the history and lifestyle outlined above, I consider Mr Karadogan's attribution the most likely.
50. L3 is an innocent vaccination scar which he did not attempt to associate with his ill-treatment.
51. L4 is an innocent surgical scar typical of an appendicectomy. Mr Karadogan though, not unreasonably, that this operation was related to blows and kicks to his abdomen during his second detention in 2000 because shortly after his release he developed severe abdominal pain and was admitted to hospital. He was told that "something inside his abdomen had burst and that he needed an operation".
52. A systemic review of blunt trauma as a cause of acute appendicitis concludes that "cases of appendicitis caused by blunt trauma are rare. Nevertheless, a diagnosis of acute appendicitis must be considered following direct abdominal trauma especially if the patient complains of abdominal right lower quadrant pain". Ergo, Mr Karadogan may be right to suspect, that his appendicitis was the result of ill-treatment. I have seen no medical records relating to his operation. What I can say categorically, having performed dozes of appendicectomies in my surgical career, is that L4 is a classical appendicectomy scar.
53. L5 is an area of pigmented skin which is consistent with Mr Karadogan's attribution of burns from electrocution (para. 15). Superficial burns causing reddening of the skin, initially, and then hyperpigmentation of the skin once the inflammation has subsided has been described (see footnote 7). He described being subjected to electric shocks on four different occasions but L5 is the only lesion that can be linked to this form of ill-treatment. This should not be taken as an indication that the electrocution did not occur as it is well-known that electric shocks delivered through electrode clips attached to digits and genitalia do not usually leave scars. Indeed, it is rare to find any scars on male genitalia because 'Penile trauma leaves scarring on the skin only if there has been gross violence ...... 'Forrest D, Guidelines for the Examination of survivors of torture. P 24, Medical Foundation [October 2000]
54. L6. He described being subject to falaka during three of his five detentions, the most recent being February 2015. Survivors usually describe painful swollen feet after the soles of the feet have been beaten with a blunt instrument. These symptoms may take days or weeks to resolve, as in Mr Karadogan's case (para. 18). Some survivors will describe pain on walking several years later. However, the recognised syndrome of permanent damage to the foot probably only occurs in those whose feat were beaten most severely. In the light of these observations, the tenderness over the sole of the left foot found on examination (para. 37. L6) is highly consistent with Mr Karadogan's history of three episodes of falaka, the most recent being approximately one year ago (para. 30).
55. Other possibilities of pain in the sole of the foot have been considered. Plantar fascilitis is one, commonly found in runners/joggers, in the overweight and the over 40s. Mr Karadogan does not fit any of those categories. In the light of his history of falaka I consider this to be the most likely explanation.
56. Despite having been arrested and ill-treated on five separate occasions over a period of 19 years (1996 - 2015) Mr Karadogan has few scars, in fact only two that are highly sufficient. On each of these occasions, however, he was subjected to blunt trauma from batons, fists or police boots. Blunt trauma does not cause scarring and bruises resolve in 10 to 14 days, normally.
57. Rule 35 Report: The examining doctor has recorded 4 lesions on his body diagrams. I have superimposed the 6 lesions described in the MLR on his diagram. L1, L2, L3 and L5 correspond to the four lesions on the R35 diagram. viz:
L1 bridge of nose.
L2 left forearm
L3 right forearm; this is a vaccination scar not described as such by the R35 doctor.
L4 is the appendicectomy scar- not recorded by examining doctor
L5 is the burn scar on the inner left leg.
L6 is the lesion on the sole of the left foot; an area of tenderness attributed to falaka.
GPs who complete the R35 forms see the client only once and have a limited amount of time to take a history, examine the client and record their findings. Nevertheless, this is considered sufficient for the examining doctor to declare that he has concerns that the detainee might have been the victim of torture.
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59. It is worth noting, in the light of discrepancies between the account documented in this report and what was recorded in Home Office interviews that Mr Karadogan's SEF was over 6 hours long. He stated at the outset that he had difficulty in communicating in a one to one setting in an official environment. He also pointed out that he had difficulty in remembering the exact dates of some of the demonstrations that he had attended over a period of 16 years (1996 to 2015) and the precise number of days that he was detained.
60. Memory disturbances were noted (para.43 above)) and the Reasons for Refusal letter (RfR) points to inconsistencies in regard to arrests and detentions. There is an abundance of recent research which shows that depression has significant effects on memory "one of the most frequent and neuro-psychologically well investigated symptoms in depression is reduced memory capacity" Dietrich, D E et al [2000] 'Word recognition memory before and after successful treatment or depression" Pharmacopsychiatry, 33 (3): 221-228. Pelosi et al [2000] demonstrated that depressed patients had poor recall compared to controls, and this became worse as the memory load increased. They concluded that major depression significantly affects working.
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67. He has four lesions, three of which are highly consistent with and one consistent with his attribution. Two other lesions are innocent scars; one, a vaccination mark, the other a surgical scar. He did not attempt to attribute the latter two lesions to ill-treatment.
The Findings of the Judge
4. The judge concluded that in respect of the 1996 arrest the appellant had given a lot of details of this to the doctor but only a brief outline in his screening interview and a few more details in his asylum interview but noted that similar detail was given in his first witness statement to the account that he had given to the doctor. In relation to the second detention the appellant stated in his interview that he had been beaten, tortured, stripped and subject to pressurised water torture and to the doctor he stated that he was kicked and beaten which he also stated in his asylum interview. He also mentioned to the doctor that he thought that his nose had been broken after being kicked and hit with a baton and that he was subject to electric shocks and had sustained an open wound on his arm after being thrown against a sharp object. In his witness statement he added that he was subjected to falaka and mentioned electric shocks. In respect of his third detention he told the doctor of electric shocks and having been subjected to a high pressure hose on the soles of his feet, whilst in his asylum interview he stated that his finger had been broken and that he had a cut on his forearm and a broken foot. He also mentioned the electric shocks and that he had been stripped, punched and beaten. In relation to the fourth detention he gave the doctor further details about treatment that he had been subjected to that had not been raised earlier.
5. The judge concluded at paragraph 5 that it was surprising that the appellant had given such variation in accounts of his treatment and torture and that he had mentioned things in this asylum interview that he had not mentioned to the doctor and that he failed to mention in the asylum interview for instance that he had been subject to electric shocks and hung upside down and he had not mentioned to the doctor the breaking of his finger or the breaking of his left foot.
6. The judge went on to conclude that depression can cause memory loss but concluded that the detail of the extent and the type of torture has increased as time has gone on and that the appellant was able to give oral evidence without too many difficulties. At paragraph 46 of the decision the judge concluded as follows:
46. The medical report does not explore alternative causes thoroughly. In particular, the cut to the arm seems to be glossed over, especially in view of the fact that there were suture marks. The area L6 is an area of 'tenderness just below the ball of the left foot' and again the evidence of the doctor does not seem to fulfil his duty to examine all other possible causes but finds that it is 'highly consistent' with three episodes of the falaka. Only one paragraph of alternative cases is considered and I am not persuaded that the doctor has fully considered the possible causes of this tenderness. The duty of the doctor is to give his expert opinion on whether the injury fits in with the circumstances described. The conclusions that three of the injuries were 'highly consistent' with the Istanbul Protocol which means that the lesion could have been caused by the trauma described and there are few other possible causes. The other injury was found to be 'consistent' and the Protocol defines this as a lesion which could have been caused by the trauma described but it is non-specific and there are many other possible causes. The doctor also states there are only two significant injuries but he does not state which these are but I take to be the injuries to the nose and the arm. The doctor has commented that much of the treatment would not leave scarring. It would seem unusual that the sort of treatment described by the appellant in his witness statement and to the doctor on five separate occasions of detention would result in only two scars and one area of tenderness.
The Grounds
7. The grounds essentially seek to challenge the approach by the judge to the medical evidence on the grounds that it is unreasoned and that the judge gave a medical opinion that he was not qualified to give. It is also asserted that the judge failed to consider the Rule 35 report.
8. I have taken on board the submissions made by Mr Kotas (in the context of the Rule 24 response). It is a fact that the judge made a number of adverse credibility findings which are not challenged in the grounds and paragraph 46 and the grounds should be considered in the context of this. The appellant gave inconsistent accounts of treatment as found by the judge and the judge was not obliged to accept the medical evidence. However, what concerns me is that the doctor had the appellant's interview and his statement and he was aware of the inconsistencies in accounts and he sought to explain these at paragraphs 59 and 60. Although the judge made findings at paragraph 42 whereby he acknowledged that depression can cause memory loss and that victims of torture can be reluctant to give full details. It is not clear how this was factored into the credibility assessment when deciding what weight to attach to the evidence. Particularly as the discrepancies do not relate so much to the ill-treatment he was subjected to overall, but what specific ill-treatment he was subjected to during each period of detention.
9. The medical evidence is probative of torture and the decision to reject it is not adequately unreasoned. Particularly in the light of the fact that the appellant's account was consistent in so far that he claimed to have been the victim of torture and detained five times. The judge does not adequately reason his conclusion that the medical evidence does not thoroughly explore alternative causes. There was no challenge to the report based on the Istanbul Protocol. Alternative causes are considered by the doctor. Although it is not necessary to mention each and every piece of evidence, I am satisfied that the judge has not engaged with the Rule 35 report. Taking all of these factors into account I conclude that the judge materially erred and I set aside the decision of the judge to dismiss the appeal.

Notice of Decision
The decision to dismiss the appeal is set aside and the matter is remitted to the First-tier Tribunal to be heard afresh.

Signed Joanna McWilliam Date 9 February 2017

Upper Tribunal Judge McWilliam