We recently examined, in Parts One, Two, Three and Four of our Practical Guide to Immigration Appeals and in First-tier Tribunal Onward Immigration Appeals – A Practical Guide, how and on what basis an immigration appeal can be pursued. We have examined both legal and practical considerations for an appeal.
One of the considerations for an appeal might be the use of expert evidence, usually in the form of a written report.
Expert evidence can also be relied on in support of an application: e.g. a country expert report, expert medical report or an independent social worker's report, containing the expert's opinion on matters relevant to the application and which requires specialist knowledge.
When Might I Need To Consider Expert Evidence?
Expert medical evidence can assist in various cases. For adult dependent relative applications, evidence from a healthcare professional is required to demonstrate long-term personal care is needed and that care is either not available or affordable in the applicant's country of residence. A country expert report commenting on the availability of care may bolster a case.
Expert medical evidence can also be sought and relied on in asylum cases involving torture and scarring. Cases involving mental or neurocognitive disorders are likely to benefit from expert psychiatric evidence. A case involving family relationships and, often, children might be assisted by an independent social worker's report.
It is crucial, whether reliance on that evidence is specified as mandatory or not, that consideration be given to whether expert evidence may assist in the arguments to be advanced in a case.
The consideration of a combination of reports from individuals with different areas of expertise can often be useful in supporting and presenting a case. This involves careful planning and you may wish to seek advice from a lawyer on how to present your case or argue your appeal.
What Do I Need to Consider When Using Expert Medical Evidence?
The Home Office recently issued new guidance titled Medical evidence in asylum claims, on 05 August 2021. Although this applies to asylum claims, it contains useful information that could be applied to other areas.
This provides guidance to caseworkers on how to approach medical evidence, on deciding a claim without waiting for medical evidence, allowing more time to gather such evidence and in cases where medical evidence is received after the agreed deadline.
The guidance contains a section on considering medical evidence. In relation to the source of the evidence:
Medical evidence may be submitted from a range of sources and in different forms, from appointment slips to MLRs. Printouts of medical records or appointment slips may be sufficient to establish the existence of a condition and you must take into account the lower standard of proof in assessing asylum claims.
When considering the credentials of an expert, the guidance reads:
Clinicians preparing medical evidence should set out their relevant expertise, experience and training. Where they are writing independently, their report must be objective and unbiased. They should set out their reasoning for their findings and where a report documents evidence of torture they should apply standards and a framework (for example, the Istanbul Protocol).
MLRs may be provided by a specialist clinical organisation such as the Helen Bamber Foundation or Freedom from Torture. The Helen Bamber Foundation and Freedom from Torture cannot accept all cases referred to them and referrals are considered by a panel for suitability. Clinicians who write reports for these organisations receive training and supervision. Reports writers from a specialist clinical organisation such as the Helen Bamber Foundation and Freedom from Torture are accepted by the Home Office as having recognised expertise in the assessment of the physical, psychological, psychiatric and social effects of torture.
Clinicians from reputable organisations that apply a rigorous methodology to the production of reports should be objective and unbiased. Reports and other medical evidence prepared by such organisations should be accepted as having been compiled by qualified, experienced and suitably trained clinicians and health care professionals. No medical evidence should be given little weight on the grounds that the writer, whether a doctor, consultant, other clinician or healthcare professional is not sufficiently qualified to write it – including, in relation to mental health conditions, where the writer has extensive experience in the field and are regulated professionals. Medical evidence prepared by other regulated experts with extensive experience in this field should generally be accepted, where details of their qualifications, training and experience have been provided, and it is clear that the evidence has been compiled using standards and a clear framework (for example, the Istanbul Protocol). Medical evidence should not be given little weight, including in relation to mental health conditions, because of the type of clinician preparing it where they have experience in that field and are regulated professionals.
Requirements Of An Expert
Even if instructing an expert for an application rather than an appeal, Part 10 of the Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal, provides a good framework for considering the scope and content of an expert report:
10.1. A party who instructs an expert must provide clear and precise instructions to the expert, together with all relevant information concerning the nature of the appellant's case, including the appellant's immigration history, the reasons why the appellant's claim or application has been refused by the respondent and copies of any relevant previous reports prepared in respect of the appellant.
10.2. It is the duty of an expert to help the Tribunal on matters within the expert's own expertise. This duty is paramount and overrides any obligation to the person from whom the expert has received instructions or by whom the expert is paid.
10.3. Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.
10.4. An expert should assist the Tribunal by providing objective, unbiased opinion on matters within his or her expertise, and should not assume the role of an advocate.
10.5. An expert should consider all material facts, including those which might detract from his or her opinion.
10.6. An expert should make it clear:
(a) when a question or issue falls outside his or her expertise; and
(b) when the expert is not able to reach a definite opinion, for example because of insufficient information.
10.7. If, after producing a report, an expert changes his or her view on any material matter, that change of view should be communicated to the parties without delay, and when appropriate to the Tribunal.
10.8. An expert's report should be addressed to the Tribunal and not to the party from whom the expert has received instructions.
10.9. An expert's report must:
(a) give details of the expert's qualifications;
(b) give details of any literature or other material which the expert has relied on in making the report;
(c) contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;
(d) make clear which of the facts stated in the report are within the expert's own knowledge;
(e) say who carried out any examination, measurement or other procedure which the expert has used for the report, give the qualifications of that person, and say 14 whether or not the procedure has been carried out under the expert's supervision; (f) where there is a range of opinion on the matters dealt with in the report:
(i) summarise the range of opinion, so far as reasonably practicable, and
(ii) give reasons for the expert's own opinion;
(g) contain a summary of the conclusions reached;
(h) if the expert is not able to give an opinion without qualification, state the qualification; and
(i) contain a statement that the expert understands his or her duty to the Tribunal, and has complied and will continue to comply with that duty.
10.10. An expert's report must be verified by a Statement of Truth as well as containing the statements required in paragraph 10.9(h) and (i).
10.11. The form of the Statement of Truth is as follows: "I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion".
Expert should also heed the guidance in paragraph 69 of the judgment in MS (Trafficking – Tribunal's Powers – Art.4 ECHR) Pakistan [2016] UKUT 00226 (IAC) and paragraphs 23 – 27 of the judgment in MOJ and others (Returns to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) and confirm this accordingly.
Does Expert Evidence Have To be Accepted?
In MS (Zimbabwe) v Secretary of State for the Home Department [2021] EWCA Civ 941 it was held that a "tribunal of fact" (e.g. the First-tier Tribunal or even the Upper Tribunal, where required to make findings of fact) is required to make its own findings on the matters in dispute and, in doing so, is entitled and required to examine the contents of an expert report adduced as evidence. It may accept guidance from an expert, but it is not obliged to accept it. Paragraphs 61 and 62 read:
It is trite that a tribunal of fact is not bound to accept expert evidence if it disagrees with that evidence. That is so even if the expert witness is not cross-examined. The tribunal of fact is entitled, and obliged, to examine the analysis and reasoning in the expert's report. It is obliged to reach its own conclusions on any questions of fact, or mixed questions of fact and law, which it must decide in order to determine a case. It may accept guidance from an expert on those questions, but is not obliged to accept it.
I would reject any suggestion that the UT was obliged to accept the conclusions in paragraph G of the Brief Summary, just because they were the conclusions of an experienced expert. The UT was entitled, and obliged, to ask itself whether those conclusions were rational conclusions, and whether, and if so, to what extent, they were supported by the material cited in the Report. The more inscrutable an expert's conclusion is, the less likely it is that a tribunal of fact will be obliged to accept it.
It is vital that, when an expert report is commissioned, the instructions, scope of the report and matters on which the expert's opinion is sought are clear and comprehensive. It is important that an expert has access to all the relevant material and information on which their opinion is sought.
Once a draft of a report has been received, it must be reviewed extensively and clarifications should be sought, if appropriate, to ensure that it is reliable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
