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Expert evidence

Together with a detailed statement, expert medical and country reports are likely to be the central building blocks for a successful case. Here we look at commissioning expert evidence to support your client’s trafficking and asylum claims. Particularly, we will consider how to find, fund and instruct the appropriate experts to prepare reports for your client’s case.

Expert evidence can include:

Country reports

These consider the risks your client may face on return to their country. Where there is insufficient evidence in the public domain, a country expert opinion can add value to your client’s case by, for instance, identifying the lack of support services and healthcare, protection issues, any stigma/ discrimination they may face, access to the labour market, both regular and irregular, and the risk they may face destitution and be vulnerable to re-trafficking or other types of exploitation.

An advisor will, of course, have to decide whether to instruct a country expert, usually at the appeal stage of a case. But before doing so, they should ensure that they have, at least, a good overview of the country information so that they can actively engage with their expert and, where necessary, seek amendments to the draft expert report.

Where there are credibility issues in the case, a country expert can also show that your client’s account is consistent with what happens in their country of origin.

These diagnose any relevant mental and physical health problems, and scarring, and the extent to which they may corroborate your client’s account (using the principles of the Istanbul Protocol); also identifying any healthcare needs, and explaining why, because of your client’s ill health, they remain vulnerable and at risk of being re-exploited.

The medical expert should also be asked to consider the client’s healthcare needs in this country, and how long they will need to stay to access and benefit from that treatment, to support a grant of or application for discretionary leave.

Forensic psychiatrist report

There are doctors who are trained to assess the risks of recidivism (committing further offences) which may well be relevant to trafficking cases, especially those who are going through the deportation process as a result of offences committed during or connected to their trafficking. An assessment will be made as to whether they are likely to re-offend.

Trafficking reports

Reports from trafficking experts may be useful to add weight to the trafficking case. These are likely to offer an opinion on the trafficking indicators in the case, outline why, on the facts of the case, your client is likely to be a victim of trafficking and address risks of re-trafficking.

Independent social worker reports

Reports from independent social workers commenting on the impact on children of any changes to their situation, e.g. one of their parents being removed from the UK. These reports are largely used in Article 8 cases but may be relevant for a trafficking case.

General advice on instructing experts

An excellent guide to all aspects of expert evidence in an asylum context is available for free on the Electronic Immigration Network (EIN) website. The Best Practice Guide to Asylum and Human Rights Appeals by Mark Henderson, Rowena Moffat and Alison Pickup (2018 edition) is available here: ein.org.uk/bpg/contents (chapters 19-26). The authors are immigration barristers with a huge amount of experience in representing asylum seekers.

Read also Dr Aidan McQuade’s blog  for us on his experiences as an expert witness: Just because they’re lying doesn’t mean they’re not telling you the truth.

When considering the need for expert evidence, remember that there may also be useful evidence available from those supporting your client. If your client has a trafficking or other support worker assisting them, they can explain why they consider the person is a victim of trafficking, from their personal experience of your client and more generally their experience in the field.

They can also add value by outlining support needs and the range of services that an individual has begun to access or is seeking to do so, and the ongoing need for the services.

The NRM should routinely be asking the support worker for this information when making the CG decision and deciding on whether to grant DL. The support worker may be willing to discuss the content of their letter with you before it goes to the NRM.

It can sometimes be difficult to get the detailed evidence from a treating practitioner or counsellor that will be needed for your client’s case. This may be due to lack of time, lack of familiarity with what’s required from them, or organisational restrictions on what they are permitted to say. But evidence from those who are working with your client will usually be valuable, even if it has to be supplemented by expert reports.

Think about getting evidence, in the form of letters or statements from others who have known or supported your client. In a recent ATLEU case, members of our client’s church, including the vicar, were able to give very valuable insight into our client’s vulnerability, having known and supported her for a long time before she entered the NRM.

Funding is available from the Legal Aid Agency (LAA) for expert evidence where it is being sought for evidence in support of a positive trafficking decision (either an initial decision or on reconsideration) as a precursor to a grant of DL or other leave.

For more detail on applying for legal aid for expert evidence, see the section on Legal Aid.

When obtaining reports, it is important to update the competent authority on your intention and progress so that a decision is not made on the case while the report is pending. It is best to give an estimated timescale by which you anticipate the report will be ready.

If a client is accepted for pre assessment by the Helen Bamber Foundation or Freedom from Torture, the Home Office should normally suspend a substantive decision on the case if they are not minded to grant leave (see para 2.4, https://www.gov.uk/government/publications/dealing-with-asylum-claims-involving-torture-or-serious-harm-allegations-process).

The policy on non-HBF/FFT reports is less generous, but still provides decisions to be delayed pending the provision of medical evidence (see https://www.gov.uk/government/publications/medical-evidence-non-medical-foundation-cases-instruction). This guidance is for protection claims, but the principle can also be applied in NRM cases where leave is sought.

Once the first draft of the report is received, it is important to read through this with your client in order to amend any inaccuracies.

Home Office policy on expert and other supporting evidence

This section of policy is important to be aware of when working with experts and drafting submissions, to show how your expert’s report complies with the Competent Authority’s requirements.

Guidance for Competent Authorities pp 73-74:

‘Evidence from local authorities and support organisations Although police and intelligence reports can provide objective evidence to strengthen a claim, the SCA must give due weight and regard to the reports and views of the: • local authority children’s services (for child victims) • ICTA or ICTA Regional Practice Coordinator (where appointed) • organisation supporting the individual When the SCA is deciding children’s cases it is essential that they develop good working relations with the local authority social workers and other practitioners who have worked on the referral.

‘These organisations may have spent most time with the potential victim and established a degree of trust. Exploited people often don’t trust or are afraid of the police or immigration officials. They may therefore not be willing to provide statements to law enforcement. In such circumstances non-governmental organisations may be able to provide more information on the individual’s situation and you must consider any such supporting evidence.

‘The SCA must also take into account any medical reports submitted, particularly those from qualified health practitioners. Weight to give to expert reports Potential victims of modern slavery may rely on documentary evidence to support their claim in the NRM. Experience and qualifications of the individual providing the supporting evidence will be relevant in considering what weight to attach to an expert report and every case must be considered on its merits.

‘However, if there are clear, robust reasons why the reasonable or conclusive grounds test is not met, there is no requirement to accept the assessment of an expert report simply because it states the reasonable or conclusive grounds test is met. The individual writing the report may not have access to the full range of information available to the SCA and all relevant evidence, including any documentary evidence, must be considered when making a reasonable or conclusive grounds decision.

‘Where an expert report is considered when assessing a claim under the NRM, and other information is available, all the information and relevant reports should be considered. If there are several expert reports all must be taken into account. A decision should not rely on an expert report alone without considering all relevant information. A decision should not rely on an expert report without making independent enquiries into the potential victim’s circumstances and credibility.

‘Where a potential victim of modern slavery relies on medical evidence it should be from a medical practitioner who is qualified in the appropriate field including information such as the relevant physical or mental condition, when that condition has been diagnosed and why that condition or any treatment relating to it is relevant to modern slavery. Any evidence supplied must be capable of being verified by the SCA where appropriate.

Finding an expert

We consider here the more usual forms of expertise sought in respect of medical and country issues.

Finding an appropriate expert can be time consuming. There will be many considerations to take into account, not least the person’s expertise in the area you need, the weight likely to be given to their report, their experience and understanding of preparing reports for the purpose of Home Office or Tribunal decision-making, and their cost and availability in the relevant timeframe.

As with every other aspect of your legal aid work, you should draft detailed attendance notes of exactly how you are spending your time finding the best expert for your purposes. As you must act, first and foremost, in the best interests of your client, finding the best available expert rather than ‘any old expert’ can always be justified.

The Legal Aid Agency’s Escape Case Guidance states that:

‘Providers will have an approved list of experts they use. Where an expert is required that is not on this approved list (possible due to it being an unusual skill set) it will be reasonable to spend time perusing the expert’s CV to determine whether to instruct them.’

Explain in attendance notes if you need to consider CVs of experts for this reason and quote this section in your attendance notes.

We give you some ideas for medical and country experts below.

For medical experts in trafficking cases, we are most often looking for psychologists or psychiatrists. Psychiatrists are medically trained doctors and their reports, particularly where your client has a range of different mental health problems, are likely to be more incisive and be given more weight than those of a psychologist. Their reports are likely to be more expensive, and that will need to be justified to the LAA.

That said, reports written by psychologists experienced in assessing trauma-related illnesses such as PTSD and severe depressive disorder should normally be adequate for the purpose.

Psychologists specialise in different areas of mental health and behaviour, so ensure the one you choose has the appropriate expertise, for example, for a client with cognitive issues, or developmental or intellectual disorders. Consider your potential expert’s CV and engage with them on the issues before formally agreeing to instruct them. Make sure that they understand the purpose of and have experience in writing such reports. Even if they appear to have the necessary clinical expertise, the report may be unhelpful if it is aimed at a different target.

As an example, ATLEU recently commissioned a psychological report from a psychologist who appeared to have the appropriate expertise, but whose report was wholly useless for our purposes. Having decided that our client’s learning difficulties were not severe enough to entitle her to statutory services, which was no part of our instructions, she failed altogether to answer the questions we actually did put to her about our client’s vulnerability and the attendant risks on return. See Legal Aid section for examples of representations to LAA.

For country experts, you will be looking for someone who has current expertise on the issues on which you need to instruct them. The knowledge of some of those holding themselves out as country experts can get outdated very quickly, particularly where they have not visited the country in recent times. If they do not live in the country for which they have expertise, and have not done research there for some time, ensure they have contacts there who can supplement their own knowledge. Be wary of experts who claim expertise in a large number of countries on different issues.

You will be able to access information in the public domain yourself. In an expert, you’re looking for someone who can add weight to your case by providing information that is not in the public domain and/or assess that information with the insight of someone who has personal knowledge of how things work in that country now.

As an example, if you’re looking for an expert to consider, among other things, whether there are refuges for victims of trafficking available for your client in their country of origin, then they will need access to information on the criteria for accessing those refuges, the facilities available there and the length of time that support will be available to your client.

They must also be able to advise on whether there is a real risk that your client won’t be able to access such refuges, and the reasons why not. If they are unable to provide you with more information than is freely available in the Home Office CPIN Report or the latest US State Department Trafficking in Persons Report, then they are unlikely to be the expert you need.

There are many avenues to explore when looking for an appropriate expert. They include:

  1. Searching case law. www.bailii.org is a free database of case law. Try using various search terms (e.g. ‘trafficking’ and ‘Albania’ and ‘expert’). You will identify cases where expert evidence has been used, and you will see how the court has regarded the expert evidence. Once you have the name of a potential expert, search against that name to see how they’ve been assessed in other reported cases.
  2. Using expert databases. We give you details of the EIN and refugeelegalaidinformation.org databases below. Don’t presume, just because they are on a list, that their expertise will be given a great deal of weight by decision makers. Check their expertise with them directly and do a case law search as above to see how they’ve gone down in court.
  3. Contact relevant NGOs and agencies on the ground in the relevant country. If they cannot provide expert evidence themselves, they may know of someone who can.
  4. Google. You’ll be looking for people who have written detailed articles or books or have undertaken research projects or lectured on the relevant issues. As with other experts, you will need to ensure their expertise is up to date.
  5. Refugee Legal Group UK (RLG) and Anti-Trafficking Legal Project (ATLEP). These are Google groups for UK asylum and trafficking caseworkers to share their expertise. To join the RLG, for which there is a small fee, email: info@migrants.org.uk. To join ATLEP, email Zoe Harper at z.harper@doughtystreet.co.uk

If the expert you contact cannot do the report for any reason, ask them who they recommend.

Engage with your expert before formally instructing them to ensure that you will end up with something useful and which justifies the cost. The report will have to be honest and objective, but there is no point in commissioning and paying for a report that does not actually support your client’s case!

Instructing an expert

Your expert will require a formal letter of instruction to prepare their report.

Your letter will have to confirm the reason for requesting the report (usually to assist the NRM or Home Office or Tribunal to decide the issues at stake). It will also set out:

  • The agreed timescale and cost, and that you are in the first instance to be sent a draft report upon which you may wish to comment and seek changes (within the time frame and cost already agreed).
  • A summary of the relevant facts and law.
  • A list of documents the expert must read before preparing the report; usually your client’s statement, any other document that provides them with further material information about your client (e.g. an interview record, and/or medical evidence) and, if there has been a decision, the reasons for the decision (the asylum refusal letter or negative NRM decision), and any other relevant document.
  • The duties of the expert (usually the Tribunal Practice Direction on expert evidence, and the relevant extract from the judgment in MOJ).
  • The list of questions they need to answer and issues upon which they need to provide their expertise.

Much of the structure of the letter will be standard, but you will need to spend enough time on the questions and issues section to ensure that the report deals with all the relevant questions and issues for the client. You should not presume the expert will be able or willing to identify the issues in your client’s case upon which they will need to comment.

Expert’s duties

To be given due weight, the expert report will have to conform to the Tribunal’s requirements as to form and content. The expert must certify that it does so.

You will need to provide them with Part 10 of the Practice Directions, Immigration and Asylum Chambers of the First tier Tribunal and the Upper Tribunal. Even if it is for an initial decision, rather than an appeal, it may well go before the Tribunal in the event of a refusal.

You will also need to give them an extract from the judgment in MOJ and Others (Returns to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC). The Tribunal decided in the case of MS (Trafficking – Tribunal’s Powers – Art. 4 ECHR) Pakistan [2016] UKUT 00226 (IAC) that those engaging expert witnesses must give the expert the extract of the judgment in MOJ and that the expert must also make it clear that these passages have been received and read, by way of a simple declaration to this effect. The relevant paragraphs are:

‘MOJ and Others (Returns to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC), [23] – [27]’ (extract)

‘The duties of the expert witness
23. We consider it appropriate to draw attention to this subject, given the prevalence and importance of expert evidence in country guidance cases. Mindful that substantial quantities of judicial ink have been spilled on this subject, we confine ourselves to highlighting and emphasising what appear to us to be amongst the most important considerations. The general principles are of some vintage. In National Justice CIA Naviera SA v Prudential Assurance Company Limited [1993] 2 Lloyds Reports 68, Cresswell J stated, at pp 81 – 82:

The duties and responsibilities of expert witnesses in civil cases include the following:

    1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.
    2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise
    3. An expert witness in the High Court should never assume the role of an advocate
    4. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion.
    5. An expert witness should make it clear when a particular question or issue falls outside his expertise.
    6. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.
    7. If, after exchange of reports, an expert witness changes his view on a material matter having read the other side’s expert’s report, or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court. ‘

This code was duly approved by the Court of Appeal: see [1995] 1 Lloyds Reports 455, at p496. It has been considered in a series of subsequent report cases: see, for example, Vernon v Bosley (No 2) [1997] 1 All ER 577, at page 601. In the latter case, Evans LJ stated, at page 603:

‘…. Expert witnesses are armed with the court’s readiness to receive the expert evidence which it needs in order to reach a fully informed decision, whatever the nature of the topic may be. But their evidence ceases to be useful, and it may become counter-productive, when it is not marshalled by reference to the issues in the particular case and kept within the limits so fixed. ‘

Judicial condemnation of an expert who does not appreciate his responsibilities is far from uncommon: see, for example, Stevens v Gullis [2000] 1 All ER 527, where Lord Woolf MR at pp.532-533 stated that the expert in question had:

‘… demonstrated by his conduct that he had no conception of the requirements placed upon an expert under the CPR.

‘It is now clear from the rules that, in addition to the duty which an expert owes to a party, he is also under a duty to the court. ‘

24. The requirements of CPR 31 also featured in Lucas v Barking Hospitals NHS Trust [2003] EWCA Civ 1102, where the emphasis was on CPR 31 and CPR 35. These provide (inter alia) that:

(i) a party may apply for an order for inspection of any document mentioned in an expert’s report which has not already been disclosed,

(ii) every expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written, and

(iii) such instructions are not privileged against disclosure.

Laws LJ made the following noteworthy observation:

‘[42] As it seems to me the key to this case … is the imperative of transparency, a general theme of the CPR but here specifically applied to the deployment of experts’ reports. Thus the aim of rule 35.10(3) and (4) is broadly to ensure that the factual basis on which the expert has prepared his report is patent. ‘

25. Thus in the contemporary era, the subject of expert evidence and experts’ reports is heavily regulated. The principles, rules and criteria highlighted above are of general application. They apply to experts giving evidence at every tier of the legal system. In the specific sphere of the Upper Tribunal (Immigration and Asylum Chamber), these standards apply fully, without any qualification. They are reflected in the Senior President’s Practice Direction No 10 (2010) which, in paragraph 10, lays particular emphasis on a series of duties. We summarise these duties thus:

(i) To provide information and express opinions independently, uninfluenced by the litigation.

(ii) To consider all material facts, including those which might detract from the expert witness’ opinion.

(iii) To be objective and unbiased.

(iv) To avoid trespass into the prohibited territory of advocacy.

(v) To be fully informed.

(vi) To act within the confines of the witness’s area of expertise.

(vii) To modify, or abandon one’s view, where appropriate.

26. In the realm of expert testimony, important duties are also imposed on legal practitioners. These too feature in the aforementioned practice direction. These duties may be summarised thus:

(i) To ensure that the expert is equipped with all relevant information and materials, which will include information and materials adverse to the client’s case.

(ii) To vouchsafe that the expert is fully versed in the duties rehearsed above.

(iii) To communicate, promptly, any alterations in the expert’s opinion to the other parties and the Tribunal.

(iv) To ensure full compliance with the aforementioned practice statement, any other relevant practice statement, any relevant guidance note, all material requirements of the Rules and all case management directions and orders of the Tribunal.

These duties, also unqualified in nature, are a reflection of the bond between bench and representatives which features throughout the common law world.

27. The interface between the role of the expert witness and the duty of the Court or Tribunal features in the following passage in the judgment of Wilson J in Mibanga v Secretary of State for the Home Department [2005], EWHC 367:

‘[24] It seems to me to be axiomatic that a fact finder must not reach his or her conclusion before surveying all the evidence relevant thereto… .

The Secretary of State argues that decisions as to the credibility of an account are to be taken by the judicial fact finder and that, in their reports, experts, whether in relation to medical matters or in relation to in-country circumstances, cannot usurp the fact finder’s function in assessing credibility. I agree. What, however, they can offer is a factual context in which it may be necessary for the fact finder to survey the allegations placed before him; and such context may prove a crucial aid to the decision whether or not to accept the truth of them. …

It seems to me that a proper fact finding enquiry involves explanation as to the reason for which an expert view is rejected and indeed placed beyond the spectrum of views which could reasonably be held. ‘

To this we would add that, as the hearing of the present appeals demonstrated, this Tribunal will always pay close attention to the expert’s research; the availability of empirical data or other information bearing on the expert’s views; the quality and reliability of such material; whether the expert has taken such material into account; the expert’s willingness to modify or withdraw certain views or conclusions where other evidence, or expert opinion, suggests that this is appropriate; and the attitude of the expert, which will include his willingness to engage with the Tribunal. This is not an exhaustive list.

Note also the warning in AAW (expert evidence – weight) [2015] UKUT 673 (IAC) as to how non-compliant expert evidence will be treated:

’25. A witness, if put forward as an expert witness, will not be treated as such if he or she does not meet the requirements demanded by the Senior President’s Practice Direction. That does not mean that his or her evidence falls to be disregarded, but any opinion offered that is unsupported by a demonstration of the objectivity and comprehensive review of material facts required of an expert witness is likely to be afforded little weight by the Tribunal. In particular, a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness.’

Other useful sources

Expert country evidence in asylum and immigration cases in the United Kingdom:
Best Practice Guide, by Professor Anthony Good and Tobias Kelly (July 2013)

The Istanbul Protocol (Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)

Check out the academic papers on the research hubs ‘credibility’ and ‘disclosure’ from the excellent Centre for the Study of Emotion and Law.

Contacts

The experts listed here are good and have agreed to have their details shown. If you have suggestions of other experts who may agree to be listed here, please let us know.

Country experts

Professor John Sidel – Indonesia, Philippines j.t.sidel@lse.ac.uk
Professor Livia Holden – Pakistan expert@insightsproduction.com
Prof. Dr. Jacqueline Knörr–Upper Guinea Coast and Gulf of Guinea/West Africa (Sierra Leone, Gambia, Liberia, Guinea, Senegal; Ghana); Indonesia
knoerr@eth.mpg.de
Professor Edlira Haxhiymeri – Albania, edlira1960@yahoo.com

Try also:

Medical experts

Dr Jacqui Gratton – (clinical psychologist) – jacquigratton@protonmail.ch experienced in assessing children
Dr Eileen Walsh (clinical psychologist) walsh_eileen@yahoo.co.uk
The Baobab Centre info@baobabsurvivors.org (working with children, adolescents and young adults – please note that the Centre does not provide reports without taking on a young person for therapy, so a report would be part of a process of engagement round the person’s mental health needs)
Dr Brock Chisholm and Dr Sarah Whittaker-Howe (clinical psychologists), Criterion A – ange@criteriona.com
Dr Roxane Agnew-Davies (clinical psychologist) roxane@dvtltd.com
Professor Katona (psychiatrist) via assistant Sarah Talbot talbotoffice@gmail.com
Dr Naomi Wilson (clinical psychologist), drnaomiwilson@gmail.com
Dr Neil Egnal (clinical psychologist), negnal@aol.com
Dr Juliet Cohen (GP and Head of Doctors at Freedom from Torture – able to document physical signs of torture and ill treatment – drjulietcohen@gmail.com
Freedom from Torture, referrals: freedomfromtorture.org
Helen Bamber Foundation: helenbamber.org/referrals/

Identification experts

To assess whether an individual has been a victim of modern slavery:
Ms Mirjam Thullesen mirjamthullesen@gmail.com or LinkedIn
Ms Elizabeth Flint EFlint@BilobaCSLtd.onmicrosoft.com
Ms Klara Skrivankova k.skrivankova@antislavery.org
ECPAT UK – info@ecpat.org.uk – ECPAT only does reports for those who are children or who were trafficked as children.

Specialist policing

To comment on organised criminal networks and their links with human trafficking.

Mr Bernie Gravett – Bernie.Gravett@specialist-policing.co.uk
www.specialist-policing.co.uk/contact
Steve Harvey – steve.harvey@ileas.eu – expert on Albanian trafficking cases, especially commenting on disclosure by Albanian Ministry of Interior.

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