PJ v Secretary of State for the Home Department

Documents obtained through foreign lawyers carry no rebuttable presumption of authenticity in asylum proceedings. Evidence must be assessed as a whole.

Exceptionally, article 3 of the European Convention on Human Rights may require the national authorities to verify a document which lies at the centre of a protection claim, where a simple enquiry would conclusively establish its authenticity and reliability. Whether verification is required depends on feasibility, proportionality, risk and the likely value of the enquiry.

A tribunal materially errs if it rejects central documents on a significantly false basis and fails to address their provenance or explain how allegedly forged material could have entered official court records.

The appellant, a Sri Lankan citizen, sought asylum and humanitarian protection. He claimed that the Sri Lankan authorities associated him and members of his family with the LTTE and that an official court file showed he would be arrested on return.

Two Sri Lankan lawyers independently obtained substantially the same certified documents from a Magistrates’ Court and sent them to the appellant’s United Kingdom solicitors. The First-tier Tribunal rejected the documents and dismissed the appeal. The Upper Tribunal accepted that the First-tier Tribunal had misunderstood one lawyer’s professional status but upheld its assessment of the documents.

The central issues were whether the Secretary of State had a duty to verify the documents and whether the tribunals had lawfully assessed their provenance, authenticity and evidential weight.

1. The appeal was allowed unanimously and the case remitted to the Upper Tribunal for a rehearing. Fulford LJ delivered the judgment, with which McFarlane LJ and Arden LJ agreed.

2. The involvement of foreign lawyers does not create a rebuttable presumption that documents obtained from a foreign court are reliable. Nor does the fact that a document is potentially verifiable invariably oblige the Secretary of State to investigate it. Documents must be assessed with the evidence as a whole.

3. Article 3 of the European Convention on Human Rights may exceptionally require verification where the document lies at the centre of the request for protection and a simple enquiry would conclusively resolve its authenticity and reliability. Whether an enquiry is required remains fact-sensitive. Relevant considerations include cost, logistical difficulty, danger to the claimant or family, local conditions, the propriety of enquiries abroad and the likelihood that verification will remain inconclusive. The approaches in Tanveer Ahmed and Singh v Belgium were materially consistent: Singh concerned an exceptional case, not a general duty to verify.

4. If the Secretary of State breaches an obligation to verify, she cannot challenge the documents’ authenticity unless and until the breach is rectified by a proper enquiry. A court does not direct the Secretary of State’s investigations. On appeal, it decides whether an obligation to enquire arose, whether it was sustainably discharged and what consequences follow from any breach.

5. The First-tier Tribunal’s assessment rested materially on an erroneous understanding that one Sri Lankan lawyer’s professional status was disputed. That error also affected its treatment of the second lawyer’s evidence. The Upper Tribunal acknowledged the error but failed to address the resulting significance of the documents’ asserted origin in a Sri Lankan court and their independent retrieval by two lawyers.

6. The documents were central to the protection claim. They included a Magistrate’s communication stating that the appellant was to be arrested on return. The Upper Tribunal gave no adequate explanation of how the appellant could have inserted forged material into official court records for later independent retrieval, when neither lawyer was accused of misconduct. Its conclusion that the documents had been falsely prepared was therefore legally inadequate.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 1011, unanimously allowed the appeal and remitted the case to the Upper Tribunal for a rehearing.

2. Upper Tribunal (Immigration and Asylum Chamber): Judge Kekic held that the First-tier Tribunal had made no material error of law and declined to set its decision aside.

3. First-tier Tribunal: Judge Woodcraft rejected the reliability and validity of the documents and dismissed the appeals concerning asylum and humanitarian protection.