MJ v The Secretary of State for the Home Department

In an asylum appeal, a judge may assess the inherent likelihood of evidence provided that the assessment is made in context and applies the reasonable-degree-of-likelihood standard. Describing evidence as self-serving is not, without more, a valid reason to reject it.

A claimant bears the burden of showing that documents relied upon are reliable. An allegation of forgery must be proved by its maker, but a finding that documents are unreliable does not itself amount to such an allegation. Singh v Belgium does not impose a general duty to verify every document capable of verification. The guidance in Tanveer Ahmed remains applicable, while allowing enquiries in exceptional cases where verification is straightforward and the source is unimpeachable.

The appellant, an Afghan national, appealed against the Secretary of State’s decision to remove him as an illegal entrant. The First-tier Tribunal had dismissed his appeal after making adverse credibility findings about his claimed continuing risk from Hizb-i-Islami, a land dispute and related arrest and detention.

He alleged errors concerning the standard of proof, use of plausibility, treatment of expert evidence, alleged forgery, and failure to verify documents. The appeal particularly raised whether Singh v Belgium required the Home Office to verify documents said to be capable of verification.

1. The appeal was dismissed. The Upper Tribunal found no material error of law in the First-tier Tribunal’s dismissal of the protection appeal, and directed that decision to stand.
2. A First-tier Tribunal judge should preferably state the applicable standard of proof, but an omission does not itself show that the wrong standard was used. The judge’s references to evidence being intrinsically or inherently unlikely were lawful because they were grounded in identified discrepancies, the timing and content of the documents, and the surrounding evidence. Likelihood is also inherent in the reasonable-degree-of-likelihood standard.
3. The description of evidence as self-serving was generally unhelpful. It could not, alone, justify marginalising evidence. It did not materially affect this determination because the judge had given other sustainable reasons for rejecting the relevant documents and account.
4. The First-tier Tribunal had not found that the documents were forged. Saying that documents could easily be forged, or finding that they were created to assist an asylum claim, did not amount to an allegation of forgery on these facts. The appellant therefore retained the burden of showing that the documents were reliable.
5. Tanveer Ahmed remained binding and sound. Its guidance does not create an absolute obligation on the Home Office to investigate documents. It contemplates particular cases in which enquiries may be appropriate. Singh v Belgium was such a case because the documents were central to protection, readily verifiable, and derived from an unimpeachable UNHCR source. It did not require verification of vague documents said to emanate from Hizb-i-Islami or an obscure Afghan police source. The Tribunal therefore rejected the proposed general rule that every verifiable document must be verified.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal for error of law and maintained the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appellant’s appeal against the Secretary of State’s removal decision of 23 August 2012.