MA (Bangladesh) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones,Lord Justice Davis,Lord Justice Underhill |
| Judgment Date | 22 March 2016 |
| Neutral Citation | [2016] EWCA Civ 175 |
| Docket Number | Case No: C5/2013/3360 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 2016 |
[2016] EWCA Civ 175
IN THE COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lord Justice Lloyd Jones
and
Lord Justice Underhill
Case No: C5/2013/3360
Case No: C4/2014/2292
On Appeal from Upper Tribunal (Immigration and Asylum Chamber)
Judge Deborah Taylor and Deputy Judge David Taylor
AA/04774/2013
On Appeal from the High Court of Justice, Queen's Bench Division, Administrative Court
Andrews J.
Co/2557/2014
and
Zane Malik and Shahadoth Karim (instructed by SEB, Solicitors and Malik Law Chambers, Solicitors) for the Appellants
Paul Greatorex (instructed by the Government Legal Service) for the Secretary of State for the Home Department
The Upper Tribunal did not appear and was not represented.
Hearing dates: 21 January 2016
Further submissions received: 1 February 2016
There are before the court two appeals which raise a common issue concerning the principles established in Tanveer Ahmed v Secretary of State for the Home Department [2002] INLR 345 in relation to the authenticity and reliability of documents in asylum cases. MA appeals, with permission of Maurice Kay LJ, from a decision of the Upper Tribunal promulgated on 4 September 2014 dismissing his appeal. AM appeals, with permission of Briggs LJ, from the decision of the Administrative Court made on 30 June 2014 to refuse permission to apply for judicial review. In addition both appellants seek permission to rely on a further ground of appeal to the effect that the decisions of the Upper Tribunal and the Administrative Court respectively, display a lack of anxious scrutiny.
The proceedings relating to MA
MA is a national of Bangladesh. He arrived in the United Kingdom on 12 July 2001 concealed in the back of a lorry. In 2009 he made an application for leave to remain based on Article 8 ECHR which was rejected without a right of appeal. In December 2012 he was discovered working illegally. He was arrested and detained. It was only after this that he made the asylum claim which gives rise to his appeal.
The basis of his claim for asylum is his alleged fear of persecution by the Bangladeshi State due to his political opinions as a member of the Bangladesh National Party (BNP). He claims that in 1997 he was kidnapped by members of the Awami League, an opposing party, by whom he was tortured. He further claims that he was accused by Abu Misar, the leader of the Awani League, of the murder of an Awami League activist, Bilayat Hussain, at a rally on 10 February 1998. He claims that he was found guilty of this murder in his absence and was sentenced to 12 years imprisonment. He claims that he went into hiding on the day after the murder and remained in hiding in the Sylhet District for three years staying in various villages and at the homes of relatives before he went to Dhaka in March 2001 where he stayed for nearly three months before travelling to the United Kingdom.
The Secretary of State refused his application for asylum setting out her reasons in a letter dated 2 May 2013. MA appealed to the First-tier Tribunal. In a decision promulgated on 27 June 2013 the First-tier Tribunal (Judge Wellesley-Cole) dismissed his appeal. MA was "comprehensively disbelieved" and the judge found his testimony "mendacious". The judge referred in particular to the following unsatisfactory features of his evidence.
(1) In 2010 MA had attended at the Bangladesh High Commission in London in order to obtain a new passport. He was unable to provide a satisfactory explanation as to why he would attend at the High Commission if he feared imprisonment in Bangladesh.
(2) The judge drew attention to an attempt by MA to interfere with the oral testimony of a witness called on his behalf.
(3) The judge regarded his alleged fear of return to Bangladesh because of a 12 year prison sentence for murder as implausible having regard to the timing and the circumstances of his claim for asylum.
(4) There were internal and external inconsistencies in relation to the documents and the events he described.
(5) The fact that he remained in Bangladesh until 2001 indicated that he did not fear his kidnappers.
(6) The judge rejected his claim that he had been convicted of murdering Bilayat Hussain. His oral testimony on this was contradictory. On the basis of Tanveer Ahmed and against a background of obviously conflicting evidence, the judge placed no weight on what was claimed to be an English translation of a judgment in those proceedings.
(7) The Judge considered that if he was wanted by the police before he left Bangladesh it would have been virtually impossible for him to leave the country on his own passport.
In rejecting MA's appeal the First-tier Tribunal refused to rely on certain documents said to be supportive of MA's evidence about his conviction including, in particular, what purported to be a translation of a judgment given by the Additional District and Session Judge of the Third Court in Sylhet on 2 May 2001, on the grounds of his inconsistent accounts as to its provenance and the background of conflicting evidence. In particular the judge referred to the contradictory explanations tendered by MA as to the language of the document. So far as concerned the other documents on which MA sought to rely Judge Wellesley-Cole placed no weight on these documents because of the discrepant nature of MA's evidence. She observed:
"I have already called into question his credibility and therefore do not rely on any of the documents itemised above as they could have come from any source. This is compounded by the fact that he remained in the country not only after his 1997 alleged kidnapping which I have not accepted. (sic) Furthermore I question whether if he had been convicted of murder he would take the risk of living in any part of Bangladesh not leaving the country until 2001 if he was genuinely being sought. This does not bear scrutiny." (at [18])
On appeal the Upper Tribunal held that there had been a limited error of law consisting of a failure by the First-tier Tribunal, after having correctly found that MA did not meet the provisions of Appendix FM, to go on to consider his Article 8 claim more generally. The Upper Tribunal formally set aside the decision of the First-tier Tribunal and remade the decision. It went on to conclude that under the second stage of the analysis there was nothing to consider because the evidence of family and private life was scant in the extreme. The other grounds of appeal were dismissed.
An application for permission to appeal against that decision was refused by the Upper Tribunal on the ground that it was out of time. The Upper Tribunal refused to extend time and said that it would have refused permission in any event.
MA then applied to the Court of Appeal for permission to appeal. Once again the application was out of time. On 5 February 2014 permission to appeal was refused on the papers by Sir Stanley Burnton who observed:
"The First-tier Tribunal in its thorough determination satisfied the requirement of anxious scrutiny. It gave overwhelming reasons for rejecting the credibility of the applicant. On the basis of the matters on which it relied, it was and is impossible to place any credence on the document produced by the applicant. Furthermore, unlike Singh v Belgium, this was not a case in which the documents could be reliably, easily and swiftly checked…"
On 21 May 2014 Maurice Kay LJ gave permission to appeal. In doing so he noted that, applying the Tanveer Ahmed principles, the First-tier Tribunal and the Upper Tribunal were plainly entitled to come to the view that they did, having formed a negative impression of MA's credibility. However the question was raised as to whether Tanveer Ahmed was still good law. Maurice Kay LJ considered the point of sufficient importance and topicality to require consideration by the full court.
Proceedings in relation to AM
AM is also a national of Bangladesh. He entered the United Kingdom on 29 September 2013. On 19 November 2013 he claimed asylum and humanitarian protection. He sought asylum on the basis of his fear that if returned to Bangladesh he would face persecution due to his political opinions. His claim for humanitarian protection was based upon his fear that if returned he would face a real risk of the death penalty or unlawful killing, torture or inhuman or degrading treatment or punishment.
AM claimed that he had been an active member of the Jamaat e Islami Party since 1995. He claimed that after coming to power in January 2009 the government began to target the leaders of his party. He claimed that the judiciary was virtually under the complete control of the government and that it had passed death sentences on senior leaders of his party. AM claimed that on 20 March 2013 he had organised a protest, that the police had shot at the protestors and one man had been killed. AM claimed that one of his opponents from the Awami League had seen him and threatened to kill him. A charge had been brought against him as the senior organiser of the march. Police had raided his house but they had failed to capture him. He had moved from place to place in order to avoid the authorities. People had gone to his house on many occasions to capture him but he had escaped every time. He claimed that on 1 April 2013 he and his legal...
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