The Upper Tribunal in QC (verification of documents; Mibanga duty) China [2021] UKUT 33 (IAC) has given useful guidance on how to approach documentary evidence submitted by asylum appellants. 

The tribunal has also clarified the circumstances in which Home Office must make enquiries to verify an appellant’s documentary evidence before rejecting it as false (a ‘verification obligation’). In cases where the verification obligation arises, but the Home Office doesn’t do anything to verify the document’s authenticity, any complaints about whether the document is genuine will be ignored by the tribunal.

That said, the verification obligation will arise in “exceptional circumstances”: only where the evidence is significant to the claim and it wouldn’t be difficult to verify. Arrest warrants, as in this case, are not the sort of documents that give rise to the verification obligation.

Still, the central point here is that the Home Office’s stock approach of undermining the appellant’s evidence without backing it up will not always be enough. If challenging evidence that’s central to the appellant’s claim and easy to verify, the Home Office will need to do its homework before calling it into question.

Background

QC had claimed asylum as a Tibetan Buddhist who feared persecution by the Chinese authorities. Very late on in the appeal, he submitted a Chinese warrant for his arrest, which the Home Office Presenting Officer argued had no evidential value – a conclusion that the First-tier Tribunal judge, in dismissing the appeal, agreed with. The question for the Upper Tribunal was whether the Home Office was allowed to attack the warrant’s authenticity without carrying out any verification checks first.

Examining the authorities, it concluded that there did indeed exist a duty on the Home Office to make inquiries before crying foul, particularly if that bit of evidence is central to the appellant’s claim. 

But the tribunal was careful to point out that this did not create a general burden on the Home Office to prove that documents were not genuine. The verification obligation, it said, would only arise “exceptionally”. The headnote on this issue says (emphasis added):

(1) The decision of the Immigration Appeal Tribunal in Tanveer Ahmed [2002] UKIAT 00439 remains good law as regards the correct approach to documents adduced in immigration appeals. The overarching question for the judicial fact-finder will be whether the document in question can be regarded as reliable. An obligation on the respondent to take steps to verify the authenticity of the document relied on by an appellant will arise only exceptionally (in the sense of rarely). This will be where the document is central to the claim; can easily be authenticated; and where (as in Singh v Belgium (Application No. 33210/11)), authentication is unlikely to leave any “live” issue as to the reliability of its contents. It is for the tribunal to decide, in all the circumstances of the case, whether the obligation arises. If the respondent does not fulfil the obligation, the respondent cannot challenge the authenticity of the document in the proceedings; but that does not necessarily mean the respondent cannot question the reliability of what the document says. In all cases, it remains 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.

Examining QC’s arrest warrant, the tribunal held that it was submitted too late in the day for verification to have been practically possible, and was “unremarkable” in its nature (“the kind of document encountered by judges of the First-tier Tribunal on a daily basis in protection appeals”). As such, it found that the obligation did not arise in this case.

The Mibanga duty

The tribunal also gave some guidance on the Mibanga duty to assess the case and its evidence “in the round” – recently discussed by the Court of Appeal in the case of MN. Essentially, the Mibanga duty is to reach conclusions only after considering all of the evidence, rather than examining a bit of the evidence, drawing a conclusion, and then looking at the rest of the evidence in that light. 

Looking at some authorities (and some half-baked cake-making analogies), the tribunal explained that credibility was not an issue in every protection case, and so establishing the actual relevance of credibility inferences to the claim is the first step. If credibility is relevant, only then does the duty kick in. As expressed in the headnote:

(2) Credibility is not necessarily an essential component of a successful claim to be in need of international protection. Where credibility has a role to play, its relevance to the overall outcome will vary, depending on the nature of the case. What that relevance is to a particular claim needs to be established with some care by the judicial fact-finder. It is only once this is done that the practical application of the “Mibanga duty” to consider credibility “in the round” can be understood (Francois Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367). The significance of a piece of evidence that emanates from a third party source may well depend upon what is at stake in terms of the individual’s credibility.

(3) What the case law reveals is that the judicial fact-finder has a duty to make his or her decision by reference to all the relevant evidence and needs to show in their decision that they have done so.  The actual way in which the fact-finder goes about this task is a matter for them.  As has been pointed out, one has to start somewhere. At the end of the day, what matters is whether the decision contains legally adequate reasons for the outcome.  The greater the apparent cogency and relevance of a particular piece of evidence, the greater is the need for the judicial fact-finder to show that they have had due regard to that evidence; and, if the fact-finder’s overall conclusion is contrary to the apparent thrust of that evidence, the greater is the need to explain why that evidence has not brought about a different outcome.