VT (Article 22 Procedures Directive – Confidentiality) Sri Lanka
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Canavan |
| Judgment Date | 19 July 2017 |
| Neutral Citation | [2017] UKUT 368 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 19 July 2017 |
[2017] UKUT 368 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL Judge O'Connor
UPPER TRIBUNAL Judge Canavan
For the Appellant: Ms S. Jegarajah, Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr B. Rawat, instructed by the Government Legal Department
VT (Article 22 Procedures Directive — confidentiality) Sri Lanka
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(i) There is no general duty of inquiry upon the examiner to authenticate documents produced in support of a protection claim. There may be exceptional situations when a document can be authenticated by a simple process of inquiry which will conclusively resolve the authenticity and reliability of a document.
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(ii) There is a general duty of confidentiality during the process of examining a protection claim, including appellate and judicial review proceedings. If it is considered necessary to make an inquiry in the country of origin the country of asylum must obtain the applicant's written consent. Disclosure of confidential information without consent is only justified in limited and exceptional circumstances, such as combating terrorism.
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(iii) The humanitarian principles underpinning Article 22 of the Procedures Directive prohibit direct contact with the alleged actor of persecution in the country of origin in a manner that might alert them to the likelihood that a protection claim has been made or in a manner that might place applicants or their family members in the country of origin at risk.
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(iv) The humanitarian objective of the Refugee Convention requires anyone seeking to authenticate a document produced in support of a protection claim to follow a precautionary approach. Careful consideration should be given to the duty of confidentiality, to whether an inquiry is necessary, to whether there is a safer alternative and whether the inquiry is made in a way that does not give rise to additional protection issues for applicants or their family members. Disclosure of personal information should go no further than is strictly necessary. Whether an inquiry is necessary and is carried out in an appropriate way will depend on the facts of the case and the circumstances in the country of origin.
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(v) Failure to comply with the duty of confidentiality or a breach of the prohibitions contained in Article 22 does not automatically lead to recognition as a refugee, but might be relevant to the overall assessment of risk on return.
This appeal raises issues relating to the duty of confidentiality and the proper scope of inquiries to authenticate documents during the examination of a protection claim.
The appellant is a citizen of Sri Lanka who entered the UK on 29 September 2014 with entry clearance as a Tier 4 (General) Student Migrant, which was valid until 30 October 2017. He claimed asylum on 24 November 2014. The respondent refused the application on 30 December 2014. First-tier Tribunal Judge Telford dismissed the appeal in a decision dated 03 February 2015. On 27 February 2015 Upper Tribunal Judge Southern concluded that the First-tier Tribunal decision disclosed an error of law because the First-tier Tribunal Judge failed to appreciate that an adjournment application was made to enable time for further enquiries relating to evidence from Sri Lanka. The decision was set aside and the appeal remitted for a fresh hearing in the First-tier Tribunal.
First-tier Tribunal Judge Chana re-heard and dismissed the appeal on 16 March 2015. The appellant appealed to the Upper Tribunal. In a decision dated 23 July 2015 Upper Tribunal Judge Gleeson and Deputy Upper Tribunal Judge Mahmood (“the panel”) concluded that the First-tier Tribunal decision involved the making of an error of law because the judge failed to give adequate reasons and erred in rejecting the evidence produced by the appellant from a lawyer in Sri Lanka because she had already found his account was not credible.
The panel set aside the decision and directed it to be remade in the Upper Tribunal. The appeal was delayed while the parties made inquiries and sought to produce further evidence from Sri Lanka. The appeal was eventually relisted for hearing before this panel.
The appellant attended the hearing and gave evidence with the assistance of a Tamil speaking interpreter. He was asked questions about his reasons for claiming asylum. The relevant details of the evidence given by the witness are incorporated into our findings of fact.
We have considered the appellant's grounds of appeal, the oral and documentary evidence, the skeleton arguments and oral submissions as well as the reasons given for refusing the application before coming to a decision in this appeal.
The 1951 Refugee Convention is interpreted in European law through Council Directive 2004/83/EC (“the Qualification Directive”). The Directive is transposed into law in the UK through The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (“the Qualification Regulations”) and the Immigration Rules.
The third recital of the Qualification Directive makes clear that the Refugee Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees.
The courts have repeatedly recognised the humanitarian nature of the Refugee Convention and have emphasised the need to treat it as a ‘living instrument’ that must be interpreted in a purposive way. Lord Hope confirmed this principle in R v Special Adjudicator ex parte Hoxha [2005] UKHL 19:
“6. No-one questions the broad humanitarian principles which underlie the Convention. The social and humanitarian nature of the problem of refugees was expressly recognised in the preamble to the Convention. So too was the fact that it was the express wish of all states to do everything within their power to prevent the problem from becoming a cause of tension between them. …
7. As a result of the amendments which it made to article 1A(2) of the Convention, these two instruments now provide the cornerstone of the international legal regime for the protection of refugees: see paragraph (3) of the preamble to Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees (“the Directive”). These are to be seen as living instruments, to which the broadest effect must be given to ensure that they continue to serve the humanitarian principles for whose purpose the Convention was entered into.”
The burden of proof is on an asylum applicant to show that he or she has a well-founded fear of persecution for one of the five reasons outlined in the Refugee Convention i.e. race, religion, nationality, membership of a particular social group or political opinion. The standard of proof has been described as a ‘reasonable degree of likelihood’, a ‘serious possibility’, ‘substantial grounds for thinking’ or a ‘real risk’ of serious harm: see R v SSHD ex parte Sivakumaran [1988] Imm AR 147. The reason why there is a low standard of proof is because of the serious nature of the potential consequences of return.
In Karanakaran v SSHD [2000] Imm AR 271 the Court of Appeal considered the earlier Tribunal decision in Kaja v SSHD [1995] Imm AR 1 and summarised it as follows:
“53. It is clear that the majority was influenced by the notorious difficulty many asylum-seekers face in “proving” the facts on which their asylum plea is founded. In many of these cases, they said, the evidence will be the applicant's own story, supported in some instances by reports from organisations like Amnesty International. The stress generated by the nature of an asylum claim and the possible consequences of refusal, complemented by the highly formalistic atmosphere of interview or court, made the task of evaluating the evidence more complex. This did not mean that there should be a more ready acceptance of fact as established as more likely than not to have occurred. On the other hand, it created a more positive role for uncertainty. It would be a rare decision-taker who was never uncertain about some aspects of the evidence, particularly where, unlike civil litigation, evaluation was often concerned only with one version of the “facts”. To say that it is only the facts established as more likely than not to have occurred on which the “reasonable likelihood” must be based would be, they said, to remove much of the benefit of uncertainty conferred on an applicant through Sivakumaran.”
The UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (December 2011) explains some of the reasons why an asylum seeker might have difficulty producing evidence.
“196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without...
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