QC (Verification of Documents; Mibanga Duty) China
| Jurisdiction | UK Non-devolved |
| Judge | Mr CMG Ockelton,Lane J |
| Judgment Date | 12 January 2021 |
| Neutral Citation | [2021] UKUT 33 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 33 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mr CMG Ockelton (Vice President)
Mr S Winter instructed by Katani & Co Solicitors, for the Claimant;
Mr D Clarke, Senior Home Office Presenting Officer, for the Secretary of State.
AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123; [2018] 4 WLR 78; [2018] 2 All ER 350; [2017] Imm AR 1508; [2017] INLR 839
AR v Secretary of State for the Home Department [2017] CSIH 52
Francois Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367; [2005] INLR 377
HH (medical evidence; effect Mibanga) Ethiopia [2005] UKAIT 164
MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 253 (IAC); [2013] Imm AR 799
MN v Secretary of State for the Home Department; IXU v Secretary of State for the Home Department[2020] EWCA Civ 1746
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 ex parte Ravichandran [1995] EWCA Civ 16; [1996] Imm AR 97
S v Secretary of State for the Home Department [2006] EWCA Civ 1153; [2007] Imm AR 7; [2007] INLR 60
Singh v Belgium 2012 ECHR 33210/11
TF and MA v Secretary of State for the Home Department [2018] CSIH 58; 2019 SC 81; 2018 SLT 1225
Tanveer Ahmed (Documents unreliable and forged) Pakistan* [2002] UKIAT 439; [2002] Imm AR 318; [2002] INLR 345
Evidence — credibility of the claimants consideration “in the round” — Mibanga duty — documentary evidence — verification of documents — Tanveer Ahmed* [2002] UKIAT 0439 affirmed
The Claimant, a citizen of China, arrived in the United Kingdom in February 2014 but did not claim asylum until October 2018, following his arrest on immigration matters. In March 2019, the Secretary of State for the Home Department refused the Claimant's protection claim. The Claimant appealed to the First-tier Tribunal (“FtT”). He advanced two discrete reasons to be in need of international protection. First, his family home had been demolished in 2009 by the Chinese authorities, in order to build a new road. He sought compensation from the authorities but was beaten by them and his collar bone broken. Secondly, while living in another area of China, he was introduced to Tibetan Buddhism and became aware of the injustice meted out to the Tibetan people by the Chinese authorities. When those authorities raided the premises in which the Claimant was living, they arrested his friend but the Claimant managed to hide himself. He said that the Chinese authorities were now aware that he was a Tibetan Buddhist. He fled China because he feared what might happen to him as a Tibetan Buddhist who supported Tibetan independence.
The FtT dismissed the Claimant's appeal. The FtT Judge did not find that the Claimant's account of being involved in a land dispute with the Chinese authorities was credible. Regarding the second claim, the Judge noted that, at his screening interview in October 2018, the Claimant made no reference to his involvement with Tibetan Buddhism or support for Tibetan independence. The Judge also noted that, in his asylum interview in March 2019, the Claimant was unable to demonstrate a fundamental knowledge of the tenets of Tibetan Buddhism. Moreover, the Claimant had given inconsistent accounts of his worship at a Tibetan Buddhist centre in Glasgow in his asylum interview and witness statement. The Claimant's failure to establish that he was a Tibetan Buddhist undermined his claim that he was wanted by the authorities because he was a Tibetan Buddhist. The Judge also considered an arrest warrant issued in March 2014 and submitted to the FtT the day before the hearing in July 2019. In the light of the finding that the Claimant was not involved with Tibetan Buddhism, the FtT Judge found that the arrest warrant was “evidentially neutral”.
Before the Upper Tribunal, the Claimant submitted first that, as the Secretary of State had not carried out any verification checks on the arrest warrant, it was not open to her, or the FtT, to impugn such a document. Secondly, the FtT Judge had allowed his adverse credibility findings to sway the assessment of the arrest warrant. Thirdly, the Judge had erred by failing to be slow to draw adverse inferences from omissions/inconsistencies arising from the screening interview. The Upper Tribunal considered in what circumstances the Secretary of State had an obligation to make enquiry in order to verify the authenticity and reliability of a document, and the consequences of her not doing so; and the nature of the obligation on judicial fact-finders to consider the evidence before them “in the round”.
Held, dismissing the appeal:
(1) The decision of the Immigration Appeal Tribunal in Tanveer Ahmed (Documents unreliable and forged) Pakistan*[2002] UKIAT 0439 remained good law as regards the correct approach to documents adduced in immigration appeals. The overarching question for the judicial fact-finder would be whether the document in question could be regarded as reliable. An obligation on the Secretary of State to take steps to verify the authenticity of the document relied on by a claimant would arise only exceptionally (in the sense of rarely). That would be where the document was central to the claim; could easily be authenticated; and where, as in Singh v Belgium2012 KCHR 33210/11, authentication was unlikely to leave any “live” issue as to the reliability of its contents. It was for the Tribunal to decide, in all the circumstances of the case, whether the obligation arose. If the Secretary of State did not fulfil the obligation, the Secretary of State could not challenge the authenticity of the document in the proceedings; but that did not necessarily mean the Secretary of State could not question the reliability of what the document said. In all cases, it remained the task of the judicial fact-finder to assess the document's relevance to the claim in the light of. and by reference to, the rest of the evidence (paras 13 – 37).
(2) Credibility was not necessarily an essential component of a successful claim to be in need of international protection. Where credibility had a role to play, its relevance to the overall outcome would vary, depending on the nature of the case. What that relevance was to a particular claim needed to be established with some care by the judicial fact-finder. It was only once that was done that the practical application of the “Mibanga duty” to consider credibility “in the round” could be understood: Francois Mibanga v Secretary of State for the Home Department[2005] EWCA Civ 367 applied. The significance of a piece of evidence that emanated from a third-party source might well depend upon what was at stake in terms of the individual's credibility. What the case law revealed was that the judicial fact-finder had a duty to make his or her decision by reference to all the relevant evidence and needed to show in their decision that they had done so. The actual way in which the fact-finder went about that task was a matter for them. As had been pointed out, one had to start somewhere. At the end of the day. what mattered was whether the decision contained legally adequate reasons for the outcome. The greater the apparent cogency and relevance of a particular piece of evidence, the greater was the need for the judicial fact-finder to show that they had had due regard to that evidence; and, if the fact-finder's overall conclusion was contrary to the apparent thrust of that evidence, the greater was the need to explain why that evidence had not brought about a different outcome (paras 38 – 57).
(3) In the instant case, the arrest warrant was first sent to the FtT the day before the hearing. If the duty of verification arose, it would place the Secretary of State in an immensely difficult position. Either the Presenting Officer would have to seek an adjournment, in order for attempts at verification to take place: or he or she would be precluded from challenging the authenticity of the document before the FtT. Where the duty of verification was a live issue, the timing of the production of the document was, plainly, one of the fact-sensitive matters to which regard must be had in deciding, in all the circumstances, whether the duty arose on the facts of the case. The arrest warrant document was very far from having the attributes needed to make the verification duty a live issue. On the contrary, leaving aside its egregiously late production, the fundamental reason why the duty did not arise in respect of the arrest warrant was because it was merely an unremarkable example of the kind of document encountered by judges of the FtT on a daily basis in protection appeals. If every such document were required to be verified by the Secretary of State, the appellate process would be severely impaired. Such an exercise would be entirely disproportionate: Tanveer Ahmed and PJ (Sri Lanka) v Secretary of State for the Home Department[2014] EWCA Civ 1011 applied. Accordingly, the first ground of appeal failed (paras 58 – 63).
(4) The Claimant's assertion that the FtT Judge had allowed his adverse credibility findings to sway the assessment of the arrest warrant was rejected. The Judge did not treat the arrest warrant as another example of the Claimant giving deceitful evidence: TF v Secretary of State for the Home Department[2018] CSIH 58 considered. Nor did the Judge fall into the related error, identified in TF, of treating all evidence supportive of the Claimant's case as merely further examples of him manufacturing a false claim. The FtT Judge came to the conclusion that the arrest warrant was neutral in its significance. That was very different from the mischief which the Inner House sought to identify in TF. The Judge was entitled to conclude on the...
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