In WAS (Pakistan) v Secretary of State for the Home Department [2023] EWCA Civ 894, the Court of Appeal has given guidance on the lower standard of proof in asylum appeals.

WAS claimed to be at risk because of his involvement with MQM-London, a UK-based faction of a Pakistani political party. The Upper Tribunal found that if his activities had come to the adverse attention of the Pakistani authorities then he would be at risk on return. It accepted that they had some knowledge of MQM-London’s activities, were interested in identifying members and supporters, and monitored social media activity. It concluded, though, that there was insufficient evidence to draw conclusions about ‘the level of and the mechanics of monitoring’ in the UK. WAS’s claim he may have been identified was therefore speculative, the Upper Tribunal said. It dismissed his appeal.

The Court of Appeal said this was an error. Lady Justice Elisabeth Laing, giving the leading judgment, rhetorically asked what evidence the Upper Tribunal expected. Echoing the classic statement by Sedley LJ in YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360, she observed that direct evidence of covert monitoring and its mechanics was unlikely to be available. The absence of such evidence shouldn’t therefore be fatal. The standard of proof in asylum claims, she emphasised, is low. WAS didn’t need to show that he had definitely come to adverse attention, but only that there was a real risk he had done so. It was agreed that he had attended protests at Downing Street and outside the Pakistani High Commission, and he could have been photographed without his knowledge.

A related error was the Upper Tribunal’s all-or-nothing approach to credibility. The Upper Tribunal found that WAS had exaggerated the level of his involvement with MQM-London. It concluded from this that his involvement was too limited to attract attention. What it should have done, Elisabeth Laing LJ said, was consider the possibility that the truth was somewhere in between. This is consistent with previous Court of Appeal reminders that someone who lies about one thing isn’t necessarily lying about everything.

This is the second Court of Appeal decision this year to find that the Upper Tribunal has imposed too high a standard of proof. Asylum claims are by their nature speculative; decision makers are predicting what might happen if someone is returned. It may be natural to look for concrete evidence before concluding they’re at risk. WAS reminds us that this isn’t always possible, and certainly isn’t necessary. The life-and-death issues at stake, and the fundamentally unknowable activities of state agents, mean that sometimes inferences have to be drawn. In an atmosphere of increasing cynicism towards asylum seekers, it is refreshing to read a judgment that recognises this.