DY for Judicial Review, in the Petition of
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Judgment Date | 11 June 2020 |
| Neutral Citation | [2020] CSOH 60 |
| Court | Court of Session (Outer House) |
| Date | 11 June 2020 |
[2020] CSOH 60
COURT OF SESSION
Lord Tyre
Mr Winter instructed by Drummond Miller LLP, for the Claimant;
Mr McKinlay instructed by the Office of the Advocate General for Scotland, for the Secretary of State.
AR v Upper Tribunal (Immigration and Asylum Chamber) [2017] CSIH 52
Absalom v Governor of HM Prison Kilmarnock [2010] CSOH 109
Enaburekhan v Secretary of State for the Home Department [2020] CSOH 18
KB & AH (credibility-structured approach) Pakistan [2017] UKUT 491 (IAC); [2020] All ER(D) 113 (Jan)
MA (Bangladesh) v Secretary of State for the Home Department; AM (Bangladesh) v Upper Tribunal (Immigration and Asylum Chamber)[2016] EWCA Civ 175
MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 253 (IAC); [2013] Imm AR 79
PJ (Sri Lanka) v Secretary of State for the Home Department [2014] EWCA Civ 1011; [2015] 1 WLR 1322; [2015] Imm AR 68
R v Secretary of State for the Home Department and Immigration Appeals Tribunal ex parte Robinson [1997] EWCA Civ 3090; [1998] QB 929; [1997] 3 WLR 1162; [1997] 4 All ER 210; [1997] Imm AR 568; [1997] INLR 182
RJG v Secretary of State for the Home Department [2016] EWCA Civ 1042
Singh and Others v Belgium 2012 ECHR 33210/11
South Bucks District Council and Another v Porter [2004] UKHL 33; [2004] 1 WLR 1953; [2004] 4 All ER 775
Tanveer Ahmed (documents unreliable and forged) Pakistan* [2002] UKIAT 439; [2002] Imm AR 318; [2002] INLR 345
European Convention on Human Rights, Articles 2 & 3
Evidence assessment of evidence — documentary evidence — inconsistencies — authenticity not challenged — duty to verify
The Claimant, a citizen of El Salvador, applied for asylum in the United Kingdom in 2018. He claimed to be at risk of physical harm by members of a criminal gang in El Salvador. He stated that he had first encountered the gang members when he was employed at a maximum-security prison during compulsory military service. He asserted that the gang wanted him to re-enlist in the army to steal weapons and ammunition for their use and they had threatened to kill him and his family if he did not obey. The Secretary of State for the Home Department refused the application. On appeal to the First-tier Tribunal (“FtT”), the Claimant produced an expert report on El Salvador and its gangs. He also produced three documents in Spanish with certified English translations, concerning his military service (“the military documents”). The FtT noted inconsistencies in the evidence. Those included the fact that, in oral evidence, the Claimant stated that he had served in the army for 18 months until 9 March 2013, whereas the first military document stated that he had served from 11 February 2011 until 31 July 2012 and the third stated that he had served from 4 October 2011 until 9 March 2013. The FtT also declined to attach material weight to the expert report and dismissed the appeal.
The Claimant sought permission to appeal against the FtT's decision. He submitted first, that the FtT had erred in failing to recognise that the Secretary of State had not sought to verify the documentary evidence relating to his time in the military. He argued that she was obliged to do so, since the documents were central to his claim and easily verifiable. Secondly, he argued that the FtT had erred in interpreting the expert report as it would a statute rather than in a common-sense manner and by re-characterising the evidence based on its own perception of reasonability. Thirdly, he argued that the FtT had failed to give adequate reasons in relation to certain findings. The Upper Tribunal (“UT”) refused to grant permission. In relation to ground one, it found that any express consideration of whether the three documents should have been verified by the Secretary of State would not arguably be material to the outcome of the case because the FtT's refusal to place weight on those documents was due to inconsistencies rather than concerns regarding authenticity. On ground two, the UT acknowledged that there was some force in the criticism of the FtT's treatment of the expert report as adopting an unduly grammatical approach in its analysis but found that overall the FtT had given cogent reasons for the weight which it attached to the expert evidence. On ground three, the UT held that, when the decision was read as a whole, adequate reasons had been given as to why the appeal was dismissed. Before the Court of Session, the Claimant challenged the UT's decision to refuse permission to appeal on all grounds. In relation to the first ground, he argued that verification could relate both to the authenticity of a document and the credibility of its source.
Held, refusing the application:
(1) The UT's conclusion in relation to the first ground of appeal was correct, albeit for broader reasons than given. Both the ground of appeal and the UT's response to it failed to recognise the differing roles of the Secretary of State and the tribunal: PJ (Sri Lanka) v Secretary of State for the Home Department[2014] EWCA Civ 1011; Singh v Belgium2012 ECHR 33210/11 and MA (Bangladesh) v Secretary of State for the Home Department[2016] EWCA Civ 175 considered. If, in the instant case, there was a duty to verify either the authenticity or reliability of any documents produced, that duty was incumbent on the Secretary of State and not on the FtT. Nor was it for the FtT to order the carrying out of investigations: PJ (Sri Lanka) applied. The consequence of any breach of obligation to undertake a proper process of verification was that it was not open to the Secretary of State, as opposed to the FtT, to impugn the authenticity of the documents. No point was taken before the FtT that the Secretary of State had breached a duty to verify the military documents and there was nothing to indicate that the Secretary of State had even challenged their authenticity. The question for the FtT was simply what weight it ought to attach to the documents and the information they contained. It was apparent from the terms of the decision that the FtT did ask that question. The FtT was not obliged to address, in assessing the evidence, whether the Secretary of State was in breach of a duty to verify the documents (paras 26 – 27).
(2) The UT was correct to characterise inconsistencies as the main reason why the FtT declined to attach weight to the military documents, but the FtT's decision seemed also to raise issues of authenticity. If that had contributed materially to the FtT's decision to attach no weight to the documents, there would have been concerns regarding the soundness of the basis of rejection. Reading the decision as a whole, however, it was the inconsistencies which persuaded the FtT not to regard the documents as supportive of the Claimant's case. Given the discrepancy, in particular, between the Claimant's evidence and the terms of document one, the FtT provided an adequate basis for declining to rely on the military documents. Moreover, there was no duty on the Secretary of State to undertake a process of verification. The documents could not reasonably be described as central to the Claimant's case: Singh and PJ (Sri Lanka) distinguished. The documents did not deal directly with the matter which the Claimant had said caused him risk of harm, namely violence by members of a criminal gang. They dealt only with his period of military service, which was no more than an element of the evidence which might or might not support his credibility. None of the authorities imposed a duty to verify documents produced in such circumstances. More importantly, the instant case differed in that the Claimant sought verification not because the documents were clearly supportive of his case, but to attempt to resolve inconsistencies which might appear to render them unsupportive. In the absence of any challenge by the Secretary of State to their authenticity, the difficulty for the Claimant was that at least one of the documents was not consistent with his account of the timescale of his contact with the gang. In effect he asserted that the Secretary of State had a duty to carry out investigations to attempt to resolve discrepancies in his own supporting evidence. That went far beyond the ‘exceptional circumstances’ in which Singh and PJ (Sri Lanka) imposed a duty on the Secretary of State to undertake a process of verification. The Claimant's argument conflicted with the condition that the verification process must not only be simple to carry out but also likely to be conclusive of the issue in the case (paras 28 – 32).
(3) There was no error of law in the UT's reasons for rejecting the second ground of appeal. The UT correctly recognised that the FtT's principal reasons for declining to place reliance on the expert report were that it was insufficiently related to the Claimant's circumstances and that in some respects the Claimant's account was not consistent with it. In relation to the third ground of appeal, it had frequently been emphasised that the obligation on a decision-maker was to give reasons which were intelligible and accurate, and which enabled the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. The reasons needed to refer only to the main issues in dispute and not to every material consideration. The matters identified by the Claimant in ground three were matters of detail in respect of which no further explanation was required to comply with the duty incumbent on the FtT (paras 34 – 36).
[1] The petitioner is a citizen of El Salvador who claimed asylum on 13 December 2018. He claimed to be at real risk in El Salvador of physical harm by members of a criminal gang who wanted him to re-enlist in the army in order to steal weapons and ammunition for...
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