MAH (Egypt) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Warby,Lady Justice King |
| Judgment Date | 28 February 2023 |
| Neutral Citation | [2023] EWCA Civ 216 |
| Docket Number | Case No: CA-2021-003407 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 216
Lady Justice King
Lord Justice Singh
and
Lord Justice Warby
Case No: CA-2021-003407
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
PA/00162/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
David Jones and David Sellwood (instructed by Brighton Housing Trust) for the Appellant
Kathryn Howarth (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 8 February 2023
Approved Judgment
This judgment was handed down remotely at 10 a.m. on 28 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The main issue in this appeal is whether the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) was entitled to reach the conclusion that the Appellant's claim for international protection failed because of his lack of credibility. At first sight such appeals are unlikely to succeed before this Court; indeed it is unlikely that permission to appeal would be granted. On closer analysis, it will become apparent that this was not a typical case about credibility. This was not a case which turned, for example, on the UT's observation of the Appellant's demeanour when giving live evidence before it, although there can be dangers with over-reliance on such observation anyway; or on the inherent implausibility of the Appellant's evidence; or on the fact that he had told lies or given inconsistent accounts at different times. The reason why the Appellant was not believed by the UT was that it considered that there were further steps he could, and should, have taken to adduce evidence which would corroborate his account.
The Appellant appeals against the decision of the UT, comprising UT Judge Norton-Taylor and Deputy UT Judge Jarvis, promulgated on 17 September 2021. In her order granting permission to appeal dated 28 July 2022, Nicola Davies LJ noted that the UT accepted significant aspects of the Appellant's case before finding against him on the issue of credibility on three core matters. She considered that the reasoning of the UT, which led to those adverse findings, required the scrutiny of this Court. There was therefore a compelling reason to permit the appeal to proceed.
At the hearing before this Court we heard submissions from Mr David Jones, who appeared with Mr David Sellwood for the Appellant, and from Ms Kathryn Howarth, who appeared for the Respondent. I express the Court's gratitude to them all for their written and oral submissions.
For the reasons set out in this judgment I have come to the conclusion that the UT erred in its approach to this case, in particular by applying what in substance was too high a standard of proof, when the law requires no more than a “reasonable degree of likelihood”; that in substance it required the Appellant to produce corroborative evidence to support various aspects of his account, when there is no requirement in law that there must be corroboration; and that, accordingly, the only conclusion that was reasonably open on the evidence before the UT, and this Court, is that the Appellant's claim to qualify as a refugee must succeed.
Factual Background
The Appellant is an Egyptian national, born on 1 January 2001, from the village of Al Gazira Al Khadra in the Khafre Al Sheikh Province. The Appellant lived with his father, who was a mechanic, and his mother and three sisters.
The Appellant's father, whom the Appellant describes as a pious man, was arrested and imprisoned in 2014, in a town called Wadi Al Natroun. The Appellant believes that his father was arrested because he was thought by the authorities to be a member of the Muslim Brotherhood, although he does not know if this was in fact true. The Appellant visited him with his mother on approximately six occasions, in the early stages of his detention. The Appellant stopped visiting, concerned that the authorities might also detain him.
The Appellant's father was tried and convicted in Khafre Al Sheikh in 2014, and sentenced to six years' imprisonment. The Appellant did not attend the trial, although his uncles and other family members did. The Appellant's father was incarcerated in Liman 440, part of the Wadi Al Natroun prison complex, which is described in expert evidence as being notorious for torturing political prisoners, and specifically members of the Muslim Brotherhood.
The Appellant fled Egypt on 1 August 2015, when he was 14 years old, fearing he would also be arrested and detained. From Egypt, the Appellant travelled to Italy, where he remained for a number of months; then France and Belgium, arriving in the United Kingdom (“UK”) on 25 October 2016. He claimed asylum on arrival.
The Appellant was placed in the care of West Sussex Social Services and registered with his current legal representatives on 19 January 2017, who in turn informed the Home Office that the Appellant wished to claim asylum on 20 January 2017.
On 12 April 2017 the Appellant's father became ill in prison, was hospitalised and died on 26 April 2018.
On 10 December 2018, the Appellant's international protection claim was refused by the Home Office. The Appellant exercised his right of appeal against that decision under section 82 of the Nationality, Immigration and Asylum Act 2002.
The appeal had a complicated history, going back and forth between the First-tier Tribunal (“FTT”) and the UT, but it is unnecessary to rehearse that history in detail for present purposes. Suffice to say that eventually the appeal was considered afresh by the UT itself but with certain findings of fact being “preserved” in the Appellant's favour: those findings had been made by the FTT (Judge Pears) in a decision dated 26 November 2019, which was otherwise set aside by the UT on 17 August 2020.
The appeal was then re-determined and dismissed by the UT on 17 September 2021. That is the decision now under appeal to this Court. This appeal is relatively unusual in that, for present purposes, the UT was acting as the tribunal of fact rather than as an appellate tribunal. Further, we must bear in mind that at the hearing, which was conducted in person, the Appellant gave evidence and was cross-examined.
The judgment of the UT
In brief, the UT accepted that:
(1) The Appellant had provided documentary evidence, which was taken to be reliable, which supported the Appellant's account that his father had been arrested, imprisoned and subsequently died in prison.
(2) The Appellant's father's arrest in 2014 was not inconsistent with the specifics of the crackdown going on against the Muslim Brotherhood at that time.
(3) It was not implausible that the Appellant's father could have been a member of the Muslim Brotherhood without necessarily attending demonstrations.
(4) The Liman 400 prison does house political prisoners, although not exclusively so, and this was the prison in which the Appellant's father was held.
(5) The Appellant was only 14 years old when his father was sent to prison, and 15 when he left Egypt.
(6) It was not implausible that the authorities might have searched the family properties in January 2016.
However, the UT went on to conclude that the Appellant was not a credible witness because:
(1) He never asked his mother or his father's lawyer what was on the indictment at his father's trial, although he knew that the accusation was that his father was involved in the Muslim Brotherhood: paras. 69–70. It was not unreasonable to expect the Appellant, now that he is an adult, to have enquired as to the identity of his father's lawyer with his mother/extended family, and sought to obtain evidence confirming whether his father's imprisonment was in fact predicated on an accusation that he was a member of the Muslim Brotherhood: para. 72.
(2) The Appellant had not given a reasonable explanation as to why he had not sought to make contact with the human rights organisation to which one of the raids on the family was reported: paras. 77–78.
(3) The Appellant had not given a reasonable explanation for failing to provide supporting evidence from family members about his father's, or other family members', political involvement: paras. 80–81.
Accordingly, the UT found that the Appellant was not “truthful” and his claims, made on both international protection and human rights grounds, failed: paras. 87–88.
I will now consider the structure of the judgment in more detail, commenting where appropriate. It is important to go through the judgment in detail because this Court is asked to say that the UT's conclusion was one that was not reasonably open to it. It would be inappropriate to take one or more phrases out of context: the judgment must be read as a whole.
The UT summarised ‘The legal framework’ at paras. 7–12 of its judgment. At para. 10 of its judgment, the UT directed itself that:
“The burden is on the Appellant to show in an asylum appeal that their return will expose them to a real risk of an act of persecution for a Refugee Convention reason.”
At para. 11 the UT directed itself that, in a claim for humanitarian protection:
“An Appellant must show substantial grounds for believing that if returned to their country of return, they would face a real risk of suffering serious harm …”
At para. 12, the UT reminded itself that, in such appeals, “we are obliged to look at the case in the round …”
At paras. 19–28 of its judgment, the UT set out what it called ‘The Appellant's core claim’. The key features of the facts were as follows:-
(1) The Appellant claimed that his father was put in prison in January 2013 (later corrected to 2014), having been accused of being one of the Muslim Brotherhood. The...
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