UK - Immigration Appeal Tribunal, 19 February 2002, Tanveer Ahmed [2002] UKIAT 00439

UK - Immigration Appeal Tribunal, 19 February 2002, Tanveer Ahmed [2002] UKIAT 00439
Country of Decision: United Kingdom
Country of applicant: Pakistan
Court name: Immigration Appeal Tribunal
Date of decision: 19-02-2002
Citation: [2002] UKIAT 00439
Additional citation: HX/23022/01*
UK_054 Judgment (0.13Mo)

Keywords:

Keywords
Assessment of facts and circumstances
Burden of proof
Country of origin information

Headnote:

This decision established that the burden of demonstrating the reliability of documents adduced in an asylum case lay on the applicant.  Only when an allegation of forgery was made  and it was necessary to determine whether the documents were forged did the burden shift to the Home Office. In that case the standard was the balance of probabilities.

Facts:

The Applicant was a member of the Muttahida Qaumi Movement (MQM) party. He appealed against the administrative decsion to refuse him asylum. At the first instance appeal he produced a First Information Report (FIR), an arrest warrant, a letter from his party and some press clippings. The adjudicator (now known as Immigration Judge) said that it was for the applicant to show that the documents were genuine and that he had failed to do so. The adjudicator gave reasons for his findings. He went on to consider whether the applicant may have produced false documents to bolster an otherwise genuine case. The appeal was dismissed.

The Applicant appealed to the Immigration Appeal Tribunal (IAT) on the grounds that the Adjudicator had erred in law by placing the burden of proof on the Applicant.  It was established UK law that an allegation of forgery had to be proved to the normal civil standard of the balance of probabilities.

Decision & reasoning:

Having reviewed the domestic authorities, the Tribunal dismissed the appeal and starred their decsion. The starring of a decsion rendered it binding on the point of law or principle decided for subsequent cases. They held that the Adjudicator had not erred in law. The Tribunal found that it would be an error to concentrate on formal allegations of forgery, the only question was whether the document could be relied on. The burden of showing reliability continued to rest on the applicant, unless it was necsessary to show that the document was a forgery, in which case the burden was on the Home Office to prove forgery to the balance of probabilities. The principles were summarised at paragraph 38 of the decision:
‘38.  In summary the principles set out in this determination are:

1. In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely 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 balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.’

Outcome:

Dismissed. Starred on legal principle.

Subsequent proceedings:

The principles and guidance have been repeatedly approved by the higher courts in the UK.

Observations/comments:

31. It is trite immigration and asylum law that we must not judge what is or is not likely to happen in other countries by reference to our perception of what is normal within the United Kingdom. The principle applies as much to documents as to any other form of evidence. We know from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain "forged" documents. Some of them 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. Examples are birth, death and marriage certificates from certain countries, which can be obtained from the proper source for a "fee", but contain information which is wholly or partially untrue. The permutations of truth, untruth, validity and "genuineness" are enormous. At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author and whether the contents are true. They are separate questions. It is a dangerous oversimplification merely to ask whether a document is "forged" or even "not genuine". 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.‘
 
It should be noted that this authority did not establish a standard of proof when the reliability of documents was disputed, the guidance in Kaja, affirmed in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11 (25 January 2000)  still held. Only if a decision maker is certain that no reliance can be placed on a document should it be excluded from the final assessment of future risk.

The principles summarised and starred remain uncontroversial. In practice, however, the dicta in paragraph 31, cited above, may have led to unforeseen consquences. Many COI reports now include a specific section devoted to the reliability of documents in any country. In many countries there will be some evidence of the availability of documents obtained by bribery, influence or forgery.  This general evidence could then become the basis for an inferred presumption that any documents from a country where there is some evidence bringing the reliability of documents into question, will be unreliable unless they are independently authenticated.

Relevant International and European Legislation:

Cited Cases:

Cited Cases
UK - A, B, C, and D v Secretary of State for the Home Department (HX/61156/96)
UK - Davila-Puga, R (on the application of) v Immigration Appeal Tribunal [2001] EWCA Civ 931
UK - Ex parte Nasim Quyyum Khan (CO/107/1999)
UK - Fodjo v Secretary of State for the Home Department (C-2000-220)
ECtHR - Makozo (20033)
UK - Mohammed (Mukhtar Shala), R (on the application of) v Immigration Appellate Authority [1999] EWHC Admin 823
UK - Sait Findik, Hatim Findik v Secretary of State for the Home Department (TH/26021/92)
UK - Shen, R (on the application of) v Immigration Appeal Tribunal [2000] EWHC Admin 452
UK - Thaukumar Vijeyaratnam v Secretary of State for the Home Department (HX/76028/97)

Follower Cases:

Follower Cases
UK - Upper Tribunal, MK v The Secretary of State for the Home Department, 10 October 2013, UKUT 00641 (IAC)
UK - R (FR and KL (Albania)) v Secretary of State for the Home Department, 23 June 2016
UK - VT (Article 22 Procedures Directive - confidentiality), 19 July 2017
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