England and Wales Court of Appeal (Civil Division) Decisions

LORD JUSTICE LLOYD JONES :
 


1. 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

2. 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.
3. 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.
4. 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.

5. 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])

6. 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.
7. 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.
8. 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?"

9. 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

10. 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.
11. 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 representative went to the High Court where he was granted temporary bail for 42 days. He did not surrender to that bail because he was advised that most judges in the High Court were politically biased and he would not have been granted further bail. Thereafter he was in hiding from the police and moving from place to place. He decided to come to the United Kingdom. He successfully applied for a visit visa at Sylhet. He booked tickets for him and his family to travel to the United Kingdom. They left together on 29 September 2013 in the early morning. He claimed this was a safe time to leave the country and they were not noticed on their way to the airport.
12. AM had not claimed asylum on arrival in the United Kingdom. He said this was because he had no legal knowledge and because he feared the authorities might immediately return the family to Bangladesh.
13. His claims for asylum and humanitarian protection were rejected by the Secretary of State in a letter dated 31 January 2014.
14. The First-tier Tribunal dismissed his appeal in a determination promulgated on 17 March 2014. Judge of the First-tier Tribunal Fisher did not find AM a credible witness. In this regard he drew attention in particular to the following matters:

(1) AM gave inconsistent and implausible evidence as to when he had started organising the March 2013 demonstration.

(2) The FIR which he produced stated that the leader of the demonstration on 20 March 2013 was someone other than AM. Having initially accepted that the police would not have been aware that he was the leader, AM subsequently tried to deny that he had given this answer and to distance himself from such a damaging admission.

(3) The judge found discrepancies as to whether he had returned to his home following the demonstration. His claim that he had never returned home after the demonstration was inconsistent with his witness statement. He had then tried to correct this "little mistake". The judge was unable to accept that he could be mistaken as to whether he ever returned home or not.

(4) The judge found AM's evidence vague. As Vice President of the Party he ought to have been able to give more detailed answers.

(5) In the light of his findings as to AM's credibility, the judge was not prepared to accept his bare assertion that a list he produced included the names of individuals whom he had sought to enlist.

(6) His failure to claim asylum on arrival in the United Kingdom was not the conduct of a person claiming to have fled persecution. His claim that he did not know about asylum was plainly incorrect.

(7) There was inconsistency between AM and the witnesses called on his behalf as to when they had last met.

(8) The judge found it incredible that AM had not ascertained from his solicitor and his friend how they had obtained the FIR documents. He had given inconsistent accounts as to how it had been obtained.

(9) The judge found incredible his account that, notwithstanding the fact that on his case he was a wanted man, spending time in hiding, he was able to visit the High Court to obtain temporary bail.

(10) The judge found it incredible that he would be sufficiently comfortable in terms of his liberty to obtain visit visas for himself and his family, to book air tickets, to travel to the airport and leave on their own passports without apparently attracting any interest whatsoever.

(11) There was insufficient reliable evidence to show that he had been a recent member of Jamat e Islami and the judge rejected his claim he was a Vice President, that he had arranged the demonstration on 20 March 2013, that he was wanted as a result or that he would be at risk of persecution on his return to Bangladesh.

15. In the course of his judgment the judge referred to the documentary evidence, in particular in the form of a newspaper article, relied on by AM. He referred to a significant prevalence of fraudulent documents in Bangladesh and continued

"The appellant's account was riddled with inconsistency, and aspects of it were lacking in general credibility. I am not satisfied that the documents produced by him are capable of carrying weight as reliable. Even if a demonstration did take place on 20 March 2013, the Daily Star report? indicates that it took place in Sylhet. There was no reliable evidence before me to show that the appellant's home area of Biswanath is part of Sylhet. I find it more likely that the appellant had taken a known event in the form of a demonstration and then fabricated account around it in the hope that it would be found credible." (at [36])

16. AM applied for permission to appeal. Permission was refused by the First-tier Tribunal on 15 April 2014 and by the Upper Tribunal on 15 May 2014. The draft grounds complained of failure to make findings in respect of crucial evidence including the newspaper articles. However, no reference was made to Tanveer Ahmed or to Singh v Belgium.
17. On 3 June 2014 AM issued an application for permission to apply for judicial review of the decision refusing permission to appeal against the determination of the First-tier Tribunal. Permission was refused by Andrews J. on 30 June 2014.
18. AM then applied to the Court of Appeal for permission to appeal against the order of Andrews J. In the skeleton argument in support of the application for permission it was contended that following MJ (Singh v Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 253 (IAC) (1 May 2013) it is arguable that there was a duty on the interested party to verify the newspaper report. It was submitted that the First-tier judge was obliged to take into account this evidence and make findings in respect of it and where there appeared an inconsistent oral narrative but objective evidence supported the claim, the benefit of doubt ought to be given to the claimant.
19. On the 29 October 2014 Briggs LJ granted permission to appeal on this ground only. He observed:

"It is just arguable that this appeal raises the same issue about the requirement to verify documents as has arisen in MA (Bangladesh) v SSHD? namely whether it was an error of law for the FtT to have dismissed as lacking in weight unverified documents, in particular a newspaper report, suggesting that the applicant had been charged as the result of his participation in the political demonstration as he alleged."

Briggs LJ directed the case be linked with the appeal in MA "to assist the Court of Appeal to give guidance on the tension (if any) between Tanveer Ahmed and Singh v Belgium by reference to more than one fact situation".

The hearing on 24 June 2015.

20. The appeals of MA and AM came on for hearing together on 24 June 2015 before Kitchin and McCombe LJJ and Kenneth Parker J. The appellants sought to develop arguments to some of which the Secretary of State objected. The court concluded that the appellants needed formally to amend their grounds of appeal in order to advance the points made in their skeleton argument. Accordingly the hearing was adjourned and case management directions were given including a direction to the appellants to file amended grounds of appeal. Amended grounds of appeal were filed on 30 June 2015.

The law.

21. In Tanveer Ahmed v Secretary of State for the Home Department [2002] UK IAT 00439; [2002] INLR 345 Collins J. (President) delivering the judgment of the Immigration Appeal Tribunal, laid down the following approach in the case of contested documents. The Tribunal noted from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain "forged" documents. Some are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are "genuine" to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Courts and Tribunals need to differentiate between form and content i.e. whether a document is properly issued by the purported author and whether the contents are true. It is necessary to shake off any preconception that official looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind.
22. Referring to Rule 39(2) of the Immigration and Asylum (Procedure) Rules 2000 the Tribunal stated that it is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely. There is no legal justification for an argument that if the Secretary of State alleges that a document relied on by an individual claimant is a forgery and the Secretary of State fails to establish this on the balance of probabilities or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. Such an argument is manifestly incorrect, given that whether the document is a forgery is not the question at issue. The only question is whether the document is one upon which reliance should properly be placed. Collins J. continued

"35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is the material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision-maker should look at the evidence as a whole or in the round (which is the same thing).

36. There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are costs and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case, a decision by the Home Office not to make enquiries, produce in-country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office."

23. In conclusion he set out the following principles:

"(1) In asylum and human rights cases it is for an individual claimant to show the document on which he seeks to reply can be relied on.

(2) The decision-maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.

(3) Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the basis of abilities to the higher civil standard does not show that a document is reliable. The decision-maker still needs to apply principles (1) and (2)." (at [38])

These principles have been consistently applied since 2002 by courts and tribunals in a host of decisions.

24. The question whether a national authority is under an obligation to take steps to verify documents relied on by asylum seekers arose for consideration by the European Court of Human Rights in Singh v Belgium (33210/11) 2 October 2012. The petitioners alleged that their deportation from Belgium to Russia would entail a risk of repatriation to Afghanistan in breach of Article 3 ECHR. The petitioners' claims for refugee status were refused because they had not proved their Afghan nationality. They appealed and sought to rely on new documents, namely e-mails between their solicitor and a representative of the Belgium Committee for the Support of Refugees, the latter enclosing e-mails from an official of the UNHCR in New Delhi which had as attachments attestations which stated that the petitioners had been recorded as refugees under the UNHCR mandate on their departure from Afghanistan. The e-mails also stated that the second petitioner had asked for naturalisation in India and that she had a valid Afghan passport issued by the Afghanistan Embassy in New Delhi. The Aliens Disputes Board ("CCE") rejected the appeals. It considered that the petitioners had failed to prove their Afghan nationality and that they were in reality under the protection of the UNCHR. It considered that UNHCR documents were easy to falsify and because the petitioners failed to provide originals they were of "no convincing value".
25. The Strasbourg Court observed that the original decision-making body (CGRA) had not carried out any investigation as to authentication of the identity documents presented by the petitioners. It did not seem to the Court that the CCE had remedied this failing. The petitioners had presented to the CCE documents which raised doubts concerning the findings of the CGRA. In the Court's view these documents were "not insignificant" because they included attestation that petitioners had been recorded as refugees under the UNHCR mandate and confirmed the dates given by the petitioners to support their claimed journey. The Court continued:

"103. Thus, the Court insists on the fact that, given the importance it gives to Article 3 and the irreversible nature of the harm likely to be caused in case of the realisation of the risk of ill treatment, it is the responsibility of the national authorities to show that they are as rigorous as possible and carry out a careful investigation of the grounds of appeal drawn from Article 3 without which the appeals lose their efficiency?Such an investigation must remove all doubt, legitimate as it may be, as to the invalidity of a request for protection regardless of the competencies of the authority responsible of the control.

104. Thus, the steps taken in this case which consisted of the removal of documents which were at the heart of the request for protection not only by the CGRA but also CCE, by judging them not to be convincing, without previously checking their authenticity, when it would have been easy to do this at the UNHCR, these steps cannot be viewed as a careful and rigorous investigation expected of national authorities within the meaning of Article 13 of the Convention and does not give an effective protection against any treatment contrary to Article 3 of the Convention.

105. It results from what precedes that the internal authorities have not investigated the validity of the grounds of appeal, in accordance with the requirements of Article 13, that the petitioners were arguing were defendable under Article 3. Thus, there was a breach of Article 13 combined with Article 3 of the Convention?"

26. In MJ (Singh v. Belgium: Tanveer Ahmed unaffected) Afghanistan [2013] UKUT 00253 (IAC) the Upper Tribunal (Immigration and Asylum Chamber) considered Singh and Belgium and expressed its conclusion as follows:

"50. [Tanveer Ahmed] is a starred decision of the IAT and we are bound by it.  It is relevant however to consider it in the context of what was said in Singh v Belgium.  Upon consideration we do not think that what was said in Singh is inconsistent with the quotation we have set out above from paragraph 35 of Tanveer Ahmed.  Tanveer Ahmed does not entirely preclude the existence of an obligation on the Home Office to make enquiries.  It envisages, as can be seen, the existence of particular cases where it may be appropriate for enquiries to be made.  Clearly 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.  We do not think that Ms Laughton has entirely correctly characterised what was said in Singh in suggesting that in any case where evidence was verifiable there was an obligation on the decision maker to seek to verify.  What is said at paragraph 104 is rather in terms of a case where documents are at the heart of the request for protection where it would have been easy to check their authenticity as in that case with the UNHCR.  That is a very long way indeed from the difficulties that would have been involved in this case in attempted verification by the Home Office of documents emanating from Hizb-i-Islami.  We do not think that what is said in Singh v Belgium in any sense justifies or requires any departure from the guidance in Tanveer Ahmed which is binding on us and which we consider to remain entirely sound."

27. In PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1WLR 1322 this Court (Arden, McFarlane, Fulford LJJ) considered the compatibility of Tanveer Ahmed with Singh v Belgium. In his judgment, with which the other members of the court concurred, Fulford LJ provided the following guidance:

"29. In my judgment, there is no basis in domestic or European Court of Human Rights jurisprudence for the general approach that Mr Martin submitted ought to be adopted whenever local lawyers obtain relevant documents from a domestic court, and thereafter transmit them directly to lawyers in the UK. The involvement of lawyers does not create the rebuttable presumption that the documents they produce in this situation are reliable. Instead, the jurisprudence referred to above does no more than indicate that the circumstances of particular cases may exceptionally necessitate an element of investigation by the national authorities, in order to provide effective protection against mistreatment under article 3 of the Convention. It is important to stress, however, that this step will frequently not be feasible or it may be unjustified or disproportionate. In Ahmed's case [2002] Imm AR 318 the court highlighted the cost and logistical difficulties that may be involved, for instance because of the number of documents submitted by some asylum claimants. The inquiries may put the applicant or his family at risk, they may be impossible to undertake because of the prevailing local situation or they may place the UK authorities in the difficult position of making covert local inquiries without the permission of the relevant authorities. Furthermore, given the uncertainties that frequently remain following attempts to establish the reliability of documents, if the outcome of any inquiry is likely to be inconclusive this is a highly relevant factor. As the court in Ahmed's case observed, documents should not be viewed in isolation and the evidence needs to be considered in its entirety.

30. Therefore, simply because a relevant document is potentially capable of being verified does not mean that the national authorities have an obligation to take this step. Instead, it may be necessary to make an inquiry in order to verify the authenticity and reliability of a document?depending always on the particular facts of the case?when it is at the centre of the request for protection, and when a simple process of inquiry will conclusively resolve its authenticity and reliability: see Singh v Belgium given 2 October 2012, paras 101?105. I do not consider that there is any material difference in approach between the decisions in Ahmed's case and Singh v Belgium , in that in the latter case the Strasbourg court simply addressed one of the exceptional situations when national authorities should undertake a process of verification.

31. In my view, the consequence of a decision that the national authorities are in breach of their obligations to undertake a proper process of verification is that the Secretary of State is unable thereafter to mount an argument challenging the authenticity of the relevant documents unless and until the breach is rectified by a proper inquiry. It follows that if a decision of the Secretary of State is overturned on appeal on this basis, absent a suitable investigation it will not be open to her to suggest that the document or documents are forged or otherwise are not authentic.

32. Finally, in this context it is to be emphasised that the courts are not required to order the Secretary of State to investigate particular areas of evidence or otherwise to direct her inquiries. Instead, on an appeal from a decision of the Secretary of State it is for the court to decide whether there was an obligation on her to undertake particular inquiries, and if the court concludes this requirement existed, it will resolve whether the Secretary of State sustainably discharged her obligation: see NA v Secretary of State for the Home Department [2014] UKUT 205 (IAC). If court finds there was such an obligation and that it was not discharged, it must assess the consequences for the case."

Ground 1: The approach of the First-tier Tribunal in each case to the issue of the authenticity and reliability of documents was unduly restrictive and inconsistent with Singh v. Belgium as applied in PJ (Sri Lanka).

28. In PJ (Sri Lanka) this court considered whether the approach to verification of documents laid down in Tanveer Ahmed was compatible with the decision of the Strasbourg court in Singh v. Belgium and decided that there is no material difference in approach between the two decisions. PJ (Sri Lanka) is binding on this court and accordingly Mr. Malik, while reserving his position should either of these appeals go further, accepted that it is not open to him to submit before this court that PJ (Sri Lanka) fails to give effect to Singh. The argument before us has, therefore, proceeded on the basis of PJ (Sri Lanka), with Mr. Malik submitting that the approach of the First-tier Tribunal in each case was unduly restrictive and inconsistent with Singh v. Belgium as applied in PJ (Sri Lanka).
29. The statement in PJ (Sri Lanka) (at [29]) that "the circumstances of particular cases may exceptionally necessitate an element of investigation" does not, to my mind, lay down a legal requirement that a case must be "exceptional" before such a duty can arise. Rather, I take Fulford LJ to be describing the situation in which such a duty will arise only exceptionally. In the great majority of cases no such duty will arise.
30. PJ (Sri Lanka) permits an approach which is sequential in nature. In determining whether the circumstances of a particular case may necessitate an investigation, national authorities may first consider whether a disputed document is at the centre of the request for protection before proceeding to consider whether a simple process of inquiry will conclusively resolve its authenticity and reliability. If these conditions are satisfied it may be necessary for a national authority to make an enquiry to verify a document. It does not necessarily follow, however, that such a duty will arise; the judgment in PJ (Sri Lanka) makes clear that the evidence, including the documentary evidence, must be considered in its entirety. If the court or tribunal concludes that there was such a duty, it will proceed to consider whether it has been discharged and, if not, it must assess the consequences for the case.

MA

31. MA complains of the failure of the Secretary of State to take any steps to verify the following documents which, it was eventually established at the hearing before us, were all before the Secretary of State and the First-Tier Tribunal.

(1) A document in English which purports to be a translation of a judgment or order given by the Additional District and Session Judge of the 3^rd Court in Sylhet on 2 May 2001 sentencing MA to 12 years rigorous imprisonment with a fine of TK8000, with a further term of 9 months rigorous imprisonment in default of payment. (MA1)

(2) A letter dated 12 October 2002 from Mr. M.A. Hussain, a lawyer practising in Bangladesh. (MA 2)

(3) A letter dated 28 October 2002 from Mr. M.A. Hussain. (MA3)

(4) A letter dated 15 December 2012 from Mr. M.A. Haque, President of the Bangladesh Nationalist Party, Sylhet District Bar. (MA4)

(5) A legal notice dated 18 December 2013 from Mr. Ziaul Haque, a lawyer practising in Bangladesh. (MA5)

(6) Newspaper reports from the Daily Uttor Purbo and the Daily Sylheter Dak. (MA6)

In addition there was before the First-tier Tribunal a further document which was not before the Secretary of State:

(7) A document in Bengali with an English translation which purports to be a letter dated 22 May 2013 from the Bangladesh Ministry of Home Affairs. (MA7) The letter refers to a report of the Superintendent of Police, Sylhet and the order of the 3^rd Court in Sylhet and confirms that MA and others were convicted and sentenced and that MA is a fugitive and an arrest warrant has been issued for him. The English translation bears a seal, a stamp and a signature stating that it has been attested by Mr. Mohammed Abdul Muqtadir an Advocate and Notary Public in Bangladesh and bears the date 22 May 2013. This document and the translation post-date the Secretary of State's decision which was challenged before the First-tier Tribunal. No witness statement from Mr. Muqtadir was produced.

32. At the hearing before us Mr. Malik's submissions concentrated on MA 1 and MA7 as he accepted that if MA's claim failed on the basis of these documents it could not succeed.
33. On its face, MA1 is a judgment in the criminal proceedings against MA in respect of the murder of Balayet Hussain. It sets out the judge's reasons for his decision and records his verdict that MA is guilty of the murder and the sentence. MA1 is a document in English but each page of which is on paper which is heavily embossed with an oriental pattern and which appears to bear a stamp or seal. In his witness statement before the First-tier Tribunal MA stated that the documents he submitted in support of his claim were genuine and obtained through his lawyers and relatives from Bangladesh.
34. Judge Wellesley-Cole considered that MA had not been consistent about the language of MA1. However, it is not clear from paragraph 16 of the determination precisely what point was being made here. It does appear that MA claimed before the Tribunal that the documents were sent to him by his solicitor in Bangladesh who also provided the translation. He said that in 2002 he lost the original documents but failed to explain how that came about. No explanation was provided to the First-tier Tribunal, or indeed to us, as to the stamps or seals.
35. In the title at the head of MA1 the proceedings are described as:

"Mr. [MA] & others accused

versus

State Prosecution"

However, the other five accused are named in the summary of evidence in the judgment where their part in the events is described and their names also appear in the order with which the document concludes; they are each sentenced to 5 years rigorous imprisonment. The names correspond with the names of the co-accused in MA7.

36. On its face MA7 is an official statement by the Ministry of Home Affairs of Bangladesh confirming, by reference to a police report and the order of the 3^rd Court in Sylhet, the conviction of MA. It refers to the criminal proceedings by the same reference number which appears on MA1. It names MA and five other defendants all of whom, it states, were convicted. The names of the co-accused correspond to those named in MA1. In his witness statement of 13 June 2013 prepared for the hearing before the First-tier Tribunal, MA states that, as the Secretary of State has disregarded the supporting documents he produced, he is now providing further documents for the consideration of the Immigration Judge.
37. It is a curious feature of this case that MA7 is not referred to in the determination of the First-tier Tribunal. This gave rise to an issue before us as to whether MA7 was before the First-tier Tribunal at all. However, it was eventually established by reference to the index to the bundle before the Tribunal that MA7 was produced.
38. The fact that this document was not before the Secretary of State does not render PJ (Sri Lanka) inapplicable in my view. MA was not precluded from relying before the First-tier Tribunal on evidence which was not before the Secretary of State. Although MA7 was not expressly referred to in the determination, it must follow from the rejection of MA's case that it was not accepted as authentic.
39. Following the hearing on 21 January 2016 it occurred to me that, on its face, MA1 was inconsistent with the account given by MA in his evidence. In his witness statement dated 13 June 2013, prepared for the hearing before the First-tier Tribunal, MA states:

"On 10/02/98 I was organised a rally with my fellow members in sylhet campaigning against the government for free and fair election. When we were passing Awami league office Zinda Bazar, the Awami League members attacked us with various dangerous weapons. The fight broke out and I left he place with some other party members as the situation became violent. Unfortunately one member of ruling Awami Leage named Balayet Hussain seriously injured and died on his way to hospital. A false allegation was made against me including others by the leader of Awami League although I was not involved in the murder of Balayat Hussain. I went into hiding on the day after the murder. An arrest warrant was issued against me. I fled from Sylhet fearing for my life because I will not get a fair trial. On 02/05/2001 I was convicted for murder in absentia for 12 years imprisonment. I then advised and helped by the senior leaders of BNP for my safe passage to Western Europe. (sic)" (at para. 4)

By contrast, the purported judgment in MA1 includes no reference to the fact that MA was tried in his absence. On the contrary it states:

"Charge was framed against all the accused U/S 302/34 of B.P.C. & explosive substance Act section 4. The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried.

The prosecution has examined 10 witnesses out of 11 witnesses mentioned in the charge sheet.

After closing the evidence of the prosecution witnesses the accused person was examined U/S. 342 of Cr. P. C. in which they pleaded not guilty and refused to produce any evidence.

The trend of cross-examination of defence lawyer the defence case appears to be that they have falsely implicated in this case out of Political gain. (sic)"

On its face, MA1 contradicts MA's claim that he was tried in his absence. This was not referred to in the Secretary of State's decision or in either of the Tribunal determinations. Moreover, it was not referred to in argument before us.

40. As a result the court invited the parties to make further written submissions on this point. On behalf of the Secretary of State Mr. Greatorex submits that this is a further serious and unexplained inconsistency and yet another reason why MA's appeal should be dismissed. On behalf of MA Mr. Malik submits that it has been MA's case throughout that he was tried in his absence and that this is consistent with his asylum interview where MA maintained that he was in hiding and was represented by his lawyer at the trial. It is said that MA1 is consistent with MA's having been tried in his absence but represented by his lawyer at the trial. In this regard I also note that MA2 and MA3, which purport to be letters sent in 2002 from Mr. M.A. Hussain, MA's lawyer, inform him of his conviction in his absence.
41. The suggested inconsistency raised by the court was not raised by the Secretary of State in refusing MA's application or by her representative when cross examining MA before the First-tier Tribunal. In these circumstances it is not possible for this court to come to a concluded view on the point.
42. Are documents MA1 and MA7 at the centre of the request for protection? Considered at one level, they are. If authentic they provide strong support for MA's claim that he was convicted of a murder which took place in the context of violence between two rival political organisations and that he was sentenced to imprisonment. These documents, without more, however, would not establish that MA has a well-founded fear of persecution because of his political opinions or allegiance. The evidence against MA may have been truthful and his conviction and sentence may be no more than the just operation of the Bangladeshi criminal justice system. Nevertheless, these documents are potentially probative of elements at the heart of his case. They do not address the entirety of the central issue but they relate directly to an important part of it. Moreover, MA7 can on one view be considered to be precisely the sort of document which one might obtain and rely upon in circumstances where one's account had been disbelieved and the authenticity of one's documentary evidence rejected by the Secretary of State.
43. Would a simple process of inquiry conclusively resolve the authenticity and reliability of these documents? It seems to me that cases will be rare in which a court could be completely confident that a simple process of inquiry will conclusively resolve the issue. In Singh it was adjudged that a request of UNHCR would have been extremely likely to resolve the issue in that case once and for all. By contrast, the documents in the present case may well prove difficult to verify.
44. The approach formulated by this court in PJ (Sri Lanka) also requires a consideration of whether in all the circumstances of the particular case the Secretary of State was under an obligation to make enquiries into the authenticity and accuracy of the documents. In this context Mr. Greatorex placed great emphasis on the finding of Judge Wellesley-Cole that MA was a mendacious witness whom she comprehensively disbelieved. The judge was well placed to come to this conclusion for which, as we have seen, she gave detailed reasons unrelated to the contested documents. This may undoubtedly reflect on the authenticity of the documents on which MA seeks to rely. The process can, nevertheless, work in both directions and in a case where documents are eventually shown to be genuine, this may be capable of having an important impact on the assessment of the truthfulness of an appellant's case.
45. There is, however, force in Mr. Greatorex's reliance on uncontested features in the history of MA's case. If MA has a well-founded fear of persecution on grounds of his political opinion, as he alleges, it is in a high degree improbable that he should have remained in Bangladesh after he was kidnapped and tortured in 1997, that he should have remained in Bangladesh for three years after going into hiding the day after the death of Balayet Hussain, that he should have left the country on his own passport, that he made no claim for asylum on arrival in the United Kingdom or when making an Article 8 claim in 2009, that he made an application to the Bangladeshi High Commission in London for a new passport in 2010, and that he applied for asylum only after he was found working illegally here in 2012. This court in PJ (Sri Lanka) emphasised that, while the circumstances of particular cases may exceptionally necessitate an element of investigation of documents by national authorities, documents should not be viewed in isolation but considered in the context of all the evidence. The uncontested evidence of MA's conduct is compelling evidence that his claim for asylum is not genuine. In these circumstances, I conclude that the Secretary of State was under no obligation to make further enquiries, which in any event may give no certainty of outcome, as to the authenticity of these documents.
46. I consider that the decision of the First-tier Tribunal is not open to challenge on PJ (Sri Lanka) grounds.

AM

47. AM's appeal is founded on a failure by the Secretary of State to take any steps to verify certain newspaper reports. Following some uncertainty, it was finally established during the hearing that the reports in question were before the Secretary of State when she made her decision and before the First-tier Tribunal. Mr. Malik was content to base his appeal on four of these reports.

(1) The first (AM1) is a report in Bengali which, it is said, appeared in The Weekly Bangladesh on 29 March 2013. It includes a photograph which is said to be of AM. The English translation with which the Secretary of State was provided bears the heading "Demand for withdrawal of case against lecturer [AM] in Biswanath". The translation continues with a statement that "many social organization of Biswanath in the UK along with Biswanath Development Trust, Biswanath Aid and Khajanchi Union Trust" have condemned the file of false cases against AM. It states that "some ultra enthusiastic police officials" have filed false claims against respected persons. It is signed by six individuals whose names and representative capacities are set out at the foot of the article.

(2) The second (AM2) is a report in Bengali, which, it is said, appeared in The Daily Notun Din, 5-11 April 2013. It includes the same photograph of AM and the translation of the text is identical to AM1 save that the words "press release" appear at the end.

(3) The third (AM3) is a report in English which, on its face, purports to be a download of an online report in The Daily Star. It is undated. The text states that members of the Awami League have bulldozed the houses in Satkhira of Jamaat chiefs in the presence of law enforcers.

(4) The fourth (AM4) is a report in English which on its face purport to be a download of an online report in The Daily Star from a staff correspondent in Sylhet. It is undated. The text states that Golam Rabbani was shot dead as Jamaat-Shibir men clashed with law enforcers. It refers to a procession and states that when protesters threw brick chips at the police, the police fired into the crowd killing Golam Rabbani.

48. I am unable to accept Mr. Malik's submission that these documents are at the centre of AM's request for protection. On the contrary, while certain of them may provide some support for his claim, they seem to me to be totally peripheral to the substance of his case.

(1) AM1 provides some support for AM's claim of involvement in the Jamaat al Islami party and that he has been the subject of a false charge. However, it is not a statement by a newspaper or its correspondent but a statement by a number of persons, acting in various representative capacities, who have subscribed to it. As such it is of very limited probative value.

(2) The same is true of AM2, the translation of which bears the words "press release".

(3) It is difficult to see what relationship AM3 bears to the claim, beyond providing some evidence that law enforcers have acquiesced in the destruction by members of the Awami League of the homes of certain leaders of Jamaat al Islami. It makes no reference to AM.

(4) AM4, if authentic and accurate, provides support for AM's claim that a protest took place and that a man named Golam Rabbani was killed when police opened fire on the protesters. In his determination Judge of the First-tier Tribunal Fisher referred specifically to AM4. He emphasised the need to consider documentary evidence in the round. He found it more likely that AM had taken a known event in the form of a demonstration and then fabricated an account around it in the hope that it would be found credible. However, in any event, AM4 does not support AM's claim that he was an organiser or that he has been charged with any offence in relation to this event. In my view, it is certainly not at the centre of AM's request for protection.

49. In an attempt to avoid this obstacle in his path, Mr. Malik in reply sought to place reliance on the fact that AM1 and AM2 included a photograph of AM. This, he submitted, would expose AM to risk if he were to return to Bangladesh. While I accept that one of the points which AM has made before the First-tier Tribunal and the Upper Tribunal is that because of the publication of his photograph he would be at risk of recognition and victimisation, this is not the heart of his claim for protection and could not possibly justify requiring the Secretary of State to seek to verify these newspaper reports. In any event, I am unable to accept that these newspaper reports from 2013, the first of which, if authentic, was in a newspaper published in the United Kingdom, could at this distance in time expose AM to any real risk on his return to Bangladesh.
50. In his reply, Mr. Malik very fairly accepted that it would be unrealistic to expect the Secretary of State to verify these newspaper reports and their contents. However, he once again fell back on his submission that AM would be at risk in Bangladesh because of the publication of his photograph. As explained above, this was at best a peripheral element of his claim and it is unrealistic to suppose that he would be at risk by reason of the appearance of his photograph in these reports.
51. For these reasons I have come to the conclusion that there was no duty on the Secretary of State to seek to verify the documents relied on by AM. The claim fails to satisfy both the qualifying tests. Moreover, I consider that, taking the evidence in its entirety, the First-tier Tribunal dealt with the issue of the authenticity of documents correctly in accordance with Tanveer Ahmed.

Ground 2: The decisions of the First-tier Tribunal and the Upper Tribunal in both cases display a lack of anxious scrutiny.

52. At the hearing before us we granted leave to MA and AM to rely on a second ground of appeal alleging a lack of anxious scrutiny on the part of the First-tier Tribunal and the Upper Tribunal in both cases.
53. The requirement to apply anxious scrutiny in the decision making process in asylum cases is well established. (See, for example, YH v. Secretary of State for the Home Department [2010] EWCA Civ 116; [2010] 4 All ER 448; ML (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 844.) On behalf of the appellants it is submitted that the principle of anxious scrutiny placed an obligation on the Secretary of State to verify the authenticity and reliability of the documents relied upon and upon the First-tier Tribunal to attach weight to them in the absence of such verification.
54. I consider that the principle of anxious scrutiny informs the approach laid down by this court in PJ (Sri Lanka). For the reasons given earlier in this judgment, there was no obligation on the Secretary of State to take steps to verify the documents relied upon in the case of either appellant.

Conclusion

55. For the reasons set out above, I would dismiss both appeals.

LORD JUSTICE DAVIS :

56. I agree.

LORD JUSTICE UNDERHILL :

57. I also agree.