The Court of Appeal has granted refugee status in a case turning on the credibility of the appellant’s evidence. MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216 provides helpful guidance on the standard of proof in asylum claims, credibility and the role of the appeal court in asylum appeals.  

Background

MAH is an Egyptian national whose father was arrested in 2014. He was tried and sentenced to six years imprisonment. MAH believes this is because he was thought to be a member of the Muslim Brotherhood, though he was not present at his father’s trial. MAH soon stopped visiting his father in detention, concerned that the authorities might also detain him.

Instead, at 14 years old, in August 2015 he fled Egypt and travelled to the UK. In April 2018 MAH’s father passed away. In December of that year, MAH’s international protection claim was refused.

MAH appealed, but the appeal had a complicated history. Eventually, his case was re-determined and dismissed by the Upper Tribunal in September 2021. This case is unusual in that, for the purposes of the appeal to the Court of Appeal, the Upper Tribunal was acting as a tribunal of fact, not an appellate tribunal considering only matters of law from a decision of the First-tier Tribunal. MAH gave evidence in person at the Upper Tribunal, including cross-examination.

The tribunal found his account of events in Egypt incredible because it was not corroborated by specific evidence. In particular, the tribunal was critical of the fact that MAH had never asked his parents why his father was being tried, or tried obtain evidence from his fathers lawyer to confirm that the imprisonment was a consequence of his father’s membership with the Muslim Brotherhood. MAH had also not provided supporting evidence, or reasons for not providing supporting evidence, from family members about his fathers political involvement. MAH’s claims on both international protection and human rights grounds failed because the tribunal found he was not ‘truthful’.

Standard of proof

MAH said that the tribunal applied the wrong standard of proof and required him to adduce corroborating evidence.

The so called ‘lower standard of proof’ in asylum claims is well known. But nowhere in its judgment did the Tribunal set out what that standard is. The requirement that MAH’s fear of persecution should be well-founded means that he must demonstrate “a reasonable degree of likelihood” that he will be persecuted for a Convention reason if returned to Egypt.

The court went further to say that “strictly speaking it could be said that it is not entirely accurate to refer to this as a standard of “proof”, because the applicant does not in fact have to prove anything. It could more accurately be described as being an “assessment of risk”.

The exercise of assessing this risk does not require the decision-maker to find ‘proved’ facts about which it is not satisfied. It is wrong to exclude points from consideration because the decision-maker believes, on what may sometimes be fragile evidence, that they probably did not occur.

Credibility

The issue of credibility must be considered in the context of the relatively low standard of proof, “following a critical survey of all the evidence”. An appeal court needs to be satisfied that the fact-finder from the lower court has at least identified the most relevant evidence and given reasons for accepting or rejecting it.

The tribunal placed particular emphasis on a list devised by the court in SB (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 160:

“In cases (such as the present) where the credibility of the appellant is in issue courts adopt a variety of different evaluative techniques to assess the evidence. The court will for instance consider: (i) the consistency (or otherwise) of accounts given to investigators at different points in time; (ii) the consistency (or otherwise) of an appellant’s narrative case for asylum with his actual conduct at earlier stages and periods in time; (iii) whether, on the facts found or agreed which are incontrovertible, the appellant is a person who can be categorised as at risk if returned, and, if so, as to the nature and extent of that risk (taking account of applicable Country Guidance); (iv) the adequacy (or by contrast paucity) of evidence on relevant issues that, logically, the appellant should be able to adduce in order to support his or her case; and (v), the overall plausibility of an appellant’s account.”

But the list is not exhaustive, nor is it a checklist where each part needs to be satisfied.

Evidence

There is no requirement for an appellant to adduce corroborative evidence. The absence of such evidence can in some circumstances be of some evidential value, though. For example, if it could have reasonably been obtained and there was no good reason not to obtain it, this is something a fact-finder can take into account.

This is not the case here. MAH produced positive evidence to support his claim including evidence of what he had witnessed and expert evidence. The tribunal had erred by concluding that the failure to adduce corroborative evidence undermined his credibility and therefore his evidence was not truthful. The tribunal had asked more of MAH than was necessary.

It is of interest to note that the Tribunal said that it rejected “the reliability of the Appellant’s claim as to the reasons for his father’s arrest”. The court observed that “reliability” is not the same thing as “credibility”.

MAH had not said anything that was untruthful. He still does not know whether his father was a member of the Muslim Brotherhood, or whether it was the reason for his arrest or detention. He also does not know if they would take a similar interest in him if he returned to Egypt.

MAH’s testimony should not be lightly or readily dismissed and when it is, reasons must be given. An assessment of credibility in an asylum case necessarily has to take place in a particularly sensitive context. In MAH’s case, the Upper Tribunal did not find that any part of the appellant’s account was inherently implausible.

The role of the appeal court

It is well established that an appeal court will not readily interfere with findings of fact by a tribunal because it is the tribunal that has considered all the evidence, including hearing oral evidence, and is an expert tribunal in the field.

However, MAH’s case was not one that turned on his oral evidence or the Upper Tribunal’s assessment of it. The Upper Tribunal did not, for example, point out inconsistencies in his evidence or between his evidence and his earlier statement.

Regardless, if a judge makes a material error in the evaluation of the evidence the court can interfere. The evaluation of the evidence must take into account that the relevant question the court is dealing with is risk, not actuality.

MAH provides helpful guidance on the standard of proof in asylum claims, credibility and the role of the appellant court in asylum appeals.  

After concluding that the tribunal fell into fundamental errors in relation to the standard of proof and the failure to adduce corroborative evidence, and therefore that the tribunal was not entitled to reach the conclusion that the appellants claim for international protection failed because of his lack of credibility, MAH was granted refugee status by the court.

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