Background:

Ms G fled Uganda in 1989, and immediately claimed asylum because of her family’s political activity. Her claim was refused and she faced deportation. It was only in August 1996 when Ms G was referred to Women Against Rape (WAR) and Black Women’s Rape Action Project (BWRAP) for counselling, that she was able to begin to speak about the rape and violence she had suffered as a teenager over a two year period. This new evidence was submitted to the Home Office, which rejected it as not "credible", and simply embellishments of her previous statements.

 At the Judicial Review hearing, the Home Office did not challenge Ms G’s credibility, claiming instead that her evidence was not "new" because it was available before but Ms G had been "unwilling" to talk about it. They also argued that multiple rape and long-term violence did not differ significantly from evidence previously submitted, although it did not mention either forms of torture. An expert report from WAR and BWRAP, supported by a distinguished psychiatrist, explained that Ms G was suffering from rape trauma syndrome, a form of post-traumatic stress disorder, which leaves victims unable (rather than unwilling) to speak about the violence they suffered. This was supported by the Medical Foundation for the Care of Victims of Torture and the UN High Commissioner for Refugees (UNHCR). 

The highlighted sections are extracts from the Judgment in THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION, Thursday, 9 October 1997.

MR JUSTICE SULLIVAN: It is impossible to do justice in this judgment to the appalling picture presented in the WAR report. In briefest summary, it contends that the applicant was a victim of multiple rapes by Ugandan army soldiers over a period of two years, starting in 1987, as a result of which she was severely injured. . .

The WAR[BWRAP] report seeks to explain why she was "unable" (the word used in the report) to talk about her experiences at an earlier stage.

[From WAR/BWRAP’s report quoted in the Judgment:]

“We have found that woman who were raped many years ago have in some cases told no-one at all until they were specifically asked about this violence, in confidence, by an organisation which specialises in helping rape survivors or victims of trauma. In England, only one in 12 rape survivors report rape to the police or other authorities. Women raped by soldiers or others in authority, over a long period of time, and in circumstances of severe stress, with their lives threatened at every moment, are even less likely to report it, or be able to talk about it to other people, especially to those in authority.

Our research showed that less than half of those who were raped or sexually assaulted when aged 16-19 told anyone about it at the time. In addition to the traumatic nature of the events it must be remembered that [Ms X] was still a teenager, from a rural society, and at the time of the first rapes had no sexual experience at all. She was completely unused to discussing sex. Recounting what happened, especially to strangers or those in an official capacity, or in an unfamiliar environment, would have been particularly difficult for her.

Her responses were consistent with a severe degree of trauma, which we normally see only when rapes are repeated and prolonged, happen early in life, or are for some other reason exceptionally devastating."

[From a letter by Secretary of State for the Home Office (24 September 1996) refusing Ms X’s claim:]

"The Secretary of State considered the fresh information submitted in support of [Ms X’s] claim, he notes that medical reports support her claim that she has been the victim of repeated rape attacks over a period of two years and that she had been unable to disclose these attacks as a direct result of the trauma she experienced. The Secretary of State is aware that [Ms X] has had ample opportunity to present the Secretary of State with all available evidence relating to her asylum claim. He is also aware that she has significantly varied her account during the consideration process, embellishing her story at each successive interview."

[MR JUSTICE SULLIVAN:] In the letter of 29 November, the Secretary of State says that he is familiar with the tests set out by the Court of Appeal . . .

"In the light of the several different versions of her experiences given by [Ms X] the Secretary of State is not prepared to accept the latest account set out in the report by Women Against Rape at page 23. The Secretary of State does not consider it credible that a person claiming to fear persecution and to be in need of international protection would keep silent for nearly 7 years from her arrival in this country about traumatic events which are now said to be central to her asylum claim. . .

The Secretary of State does not accept that [Ms X] was capable of giving detail such as that in May 1992 but incapable of giving the account which she now has and he considers that the latest version of events set out in the report by Women Against Rape has been put forward in an effort to prevent her being removed from this country.

[MR JUSTICE SULLIVAN:] In essence, in 1994 the Secretary of State rejected the claim because of what he saw as various discrepancies and improbabilities that were contained within it . . .

 . . . the second letter in November says that the Secretary of State does not consider it credible that a person claiming to fear persecution and to be in need of international protection would keep silent for nearly seven years from her arrival in this country about traumatic events which are now said to be central to her asylum claim, and concludes by saying that the Secretary of State doubts the veracity of any statements made and that credibility has been seriously undermined.

Once the new evidence is accepted as being apparently credible (as it now is), to categorise someone suffering from the degree of trauma described in the reports as "unwilling to give evidence", as opposed to "unable to give evidence", as Mr Tam [barrister for the Secretary of State]  submitted, is in my judgment perverse.

. . . the Secretary of State does not address the question, given that this new evidence is apparently credible, and given that this apparently credible evidence itself contains an explanation as to why the applicant was unable (not merely unwilling but unable) to speak about her experiences at an earlier stage, can he (the Secretary of State) maintain the argument that the evidence was available at an earlier stage in the sense that the applicant was able to disclose it but was simply unwilling to do so, or was that unwillingness more properly described on apparently credible evidence as an inability to produce the evidence at an earlier stage?

 . . . I accept that, where ill treatment has been alleged, further elaboration of that ill treatment (particulars of more kicks or more punches or longer periods of arbitrary imprisonment than had hitherto been disclosed) will not normally amount to a new claim. But on any reasonable view, the evidence of the repeated and sustained rapes in this case, if apparently credible (as is conceded), was in an altogether different league from the isolated incidents of beating which amounted to no more than slapping, that had been described in the earlier claim.

 . . . In my view, two features distinguish this case upon its facts. First, not only is the new evidence accepted as apparently credible, but the evidence within itself contains an explanation of why it could not be produced at an earlier stage. Secondly, the difference between the nature of the ill treatment presented before (which amounted to little more than slapping) and the nature of the ill treatment presented now (multiple rapes over an extended period of years) is so very substantial as to amount, on any basis, to a completely fresh picture which could be laid before the special adjudicator.

For those reasons, I shall allow this application.

Click here for the Full Judgment