MJ (Singh v Belgium: Tanveer Ahmed Unaffected) Afghanistan [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Jordan,Allen,Jordan UTJ,Allen UTJ |
| Judgment Date | 01 May 2013 |
| Neutral Citation | [2013] UKUT 253 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 01 May 2013 |
[2013] UKUT 253 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Allen
UPPER TRIBUNAL JUDGE Jordan
For the Appellant: Ms V Laughton, instructed by Lawrence & Co, Solicitors
For the Respondent: Mr S Kandola, Senior Home Office Presenting Officer
MJ ( Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan
The conclusions of the European Court of Human Rights in Singh v Belgium (Application No. 33210/2011) neither justify nor require any departure from the guidance set out in Tanveer Ahmed [2002] Imm AR 318 (starred). The Tribunal in Tanveer Ahmed envisaged the existence of particular cases where it may be appropriate for enquiries to be made. On its facts Singh can properly be regarded as such a particular case. The documentation in that case was clearly of a nature where verification would be easy, and the documentation came from an unimpeachable source.
The appellant, who was a national of Afghanistan born on 5 June 1975, appealed to a Judge of the First-tier Tribunal against a decision of the Secretary of State of 23 August 2012 to remove him as an illegal entrant. The judge dismissed the appeal, making adverse credibility findings with respect to material aspects of the appellant's claim. The appellant sought and was granted permission to appeal on the basis of five main points, first that he had applied the wrong standard of proof, secondly that he had failed to consider or to consider properly expert evidence, thirdly that he had adopted the respondent's reliance upon an allegation that the appellant had submitted forged documents without applying the proper standard of proof, fourthly that he had failed to have regard to relevant evidence and fifthly that he had failed to verify verifiable documents.
In her submissions, Ms Laughton relied upon and developed the points made in the grounds.
She argued that the judge had never set out the proper standard of proof but at various points had rejected aspects of the evidence on the basis that they were intrinsically unlikely. Reading the determination as a whole it was not clear whether the judge had applied the right standard of proof. It was a matter of taking together a failure to set out the proper standard and the reliance on inherent likelihood. Cases such as Ghesari [2004] EWCA Civ 1854 and HK [2006] EWCA Civ 1037 set out the concerns with regard to the use of plausibility as a basis for adverse credibility findings. It was the case that unlikely things happened all the time. The question was whether the event in question happened and it was necessary to consider that, even if it was stated that it was unlikely.
In this regard, ground 1 was linked to ground 2 with respect to matters which the judge had found to be inherently implausible which were in fact explained by the expert. The first of these was the reason why the appellant had been left alone by Hizb-i-Islami for so long. As regards the tone of the letters, which the judge considered at paragraph 97 of the determination, it did not mean that they were not genuine because they were not threatening and the expert's view was that Hizb-i-Islami tried to cajole and did not forcibly recruit. The appellant had not said that they tried to force him in 2007. Far from being inherently unlikely, the expert report showed that this was plausible. The judge had not referred to the expert's views on this nor with regard to the unlikelihood of the cousins contriving his arrest in the way in which it was claimed that they had. The cousins were working their way up government ranks in 2007 to 2008, and the appellant believed he was arrested because they had identified him as being a member of Hizb-i-Islami and this was an ongoing risk factor throughout the case. Again the judge had thought this was inherently unlikely and again the matter was dealt with by the expert. It did not make a difference whether the people concerned were close to or within the security agency.
Also with regard to the expert report there was evidence about bribery and the judge had said it could not be important if he was able to be released on payment of a bribe, but that did not mean that was the position in every country, and it was the case that the rule of law, even in Kabul, was so limited and the expert commented on this and gave examples of the kind of people who had been released on the basis of payments of bribes including many Taliban. The judge could have rejected the expert evidence but if he did so he needed to give adequate reasons and had not done so. He was wrong in saying the report was generic.
There was also an error with regard to considering relevant evidence, at paragraph 100 where the judge was wrong in saying as he did that the issue of the claimed land dispute was not said to have affected the appellant in any way until he was within weeks of leaving the country. The matter was dealt with at paragraph 17 of the grounds, noting the evidence that he had been stabbed by the cousins and that even now his father lived in Pakistan with his family.
The issues with regard to documentary evidence could be broken down into three points. The first of these was the use of the term “self-serving”. It was unclear what that meant and if it only meant it supported the appellant's claim then it was unsurprising that evidence would be provided to do that.
The second was the allegation of forgery in contrast to the assessment that could be made of evidence as unreliable. With regard to the latter, the burden was on the appellant. With regard to the former the burden was on the Secretary of State. It was apparent from the determination that an allegation of forgery had been made and the judge's findings were that the documents had been forged in that he said that they were created to assist the appellant's claim. There was a difference between finding a document unreliable, which was a neutral factor, and finding it was a forgery. Attaching no weight to a document was not the same as finding it was a forgery, as in such a case there would have been a positive fabrication of evidence and that was why the burden of proof was on the Secretary of State. It was clear from paragraph 70 that fraud was alleged by the Secretary of State but the judge having also made a finding of forgery had not placed the burden where it should have been placed.
The third point related to what had been said by the Court of Human Rights in Singh v Belgium (Application No. 33210/11). The particularly relevant paragraphs were 101 to 104. If a document was verifiable and the investigating authority, the Secretary of State or whoever in the relevant state, chose not to verify it, it was a breach of Article 13 in conjunction with Article 3. The nature of the documents in Singh was set out at paragraph 13 (the second paragraph 13) in the judgment. They were identity documents and emails from the UNHCR. It was clearly the case that not every document was verifiable and indeed many were not. The ruling here related to those documents that were verifiable and at least one of the documents in the instant case was, being the letter from the faction of Hizb-i-Islami which was aligned with the government and which had provided contact details and a number. If it was accepted that it was a verifiable document, then the Secretary of State had breached her duty to verify it and weight should be attached to that.
In conclusion, there were multiple flaws in the determination, several of which overlapped. Those adverse matters left were not enough by themselves to maintain an adverse credibility finding.
In his submissions, Mr Kandola argued, with respect to Singh v Belgium, that the letters were considered in the refusal letter at paragraph 35 onwards and were said not to be reliable and to be lacking in weight. Forgery had not been asserted. Cases such as RP [2006] UKIAT 00086 dealt with the situation where the Secretary of State asserted forgery on examination of a document, but Tanveer Ahmed [2002] IAT 00439 was the appropriate authority in asylum proceedings. This was referred to at paragraph 38 of the refusal letter.
If the appellant's submission was accepted, then it would be very difficult if the burden was on the Secretary of State to discharge it in this context especially when the letters came from a non-state actor of persecution. The documents in Singh related to UNHCR documentation which were easily verifiable and with no room for forgery in those circumstances. There was a very obvious source to the documents. In contrast, in this case the position was very different. Even if there were a general duty, Singh v Belgium did not apply in such a case involving putting the appellant at risk and there had to be a commonsense approach compatible with the Convention.
With regard to the use of the term “intrinsically unlikely”, it was argued that there was the possibility that the balance of probabilities test was being employed but equally, since the word “likelihood” was within the standard test anyway of a reasonable degree of likelihood, it was particularly compatible with that. This did not take the wording used outside the proper standard of proof. The fact that there was said to be no reason not to believe certain matters in the claim was equally not an improper formulation. Also, prior to the judge finding as he did about Hizb-i-Islami at paragraph 96, what he said at paragraphs 93 and 94 needed to be borne in mind, considering the actual facts of the case, for example the answer to question 86 at interview. Paragraph 94 identified an inconsistency. There was an overall credibility assessment on a proper basis. Proper findings had been made at paragraphs 93 and 94. The judge...
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