PA v The Secretary of State for the Home Department

There is no general legal requirement for the Secretary of State to obtain an applicant’s consent before making an inquiry in the country of origin. Procedures Directive (2005/85/EC), article 22, and paragraph 339IA of the Immigration Rules instead prohibit inquiries that directly inform alleged persecutors that an application has been made and thereby jeopardise the relevant person’s physical integrity, liberty or security.

Consent cannot cure an inquiry that breaches that prohibition. A properly conducted document-verification exercise which discloses no identifying information and creates no such risk does not establish an enhanced risk on return. Allegations of judicial bias require proper and timely evidential steps; ordinary courtroom exchanges and an interpreter’s private conversation will not, without more, demonstrate unfairness.

The appellant, a Bangladeshi national, appealed against the refusal of his protection and human-rights claim. He relied on alleged political activity for the BNP, an asserted attack by Awami League members, and documents said to include First Information Reports and charge sheets.

A British High Commission verification exercise found that the documents did not match police records. The First-tier Tribunal dismissed the appeal on 6 November 2017, finding the core account fabricated and rejecting the Article 8 claim.

Before the Upper Tribunal, the appellant argued that the verification exercise had alerted his alleged persecutors to his protection claim; that relevant evidence had not been considered; and that the First-tier Tribunal Judge had been biased. The central issues were the proper scope of article 22 confidentiality obligations and whether any alleged procedural error was material.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its credibility findings, including its conclusion that the documents were false, were sustainable.

2. Procedures Directive (2005/85/EC), article 22, as reflected in paragraph 339IA of the Immigration Rules, contains the United Kingdom’s relevant legal obligations. It does not impose a general requirement to obtain an applicant’s consent before an inquiry is made in the country of origin. The reference to consent in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 00368 (IAC) derived from an advisory UNHCR opinion and was not a holding that consent is legally necessary in every case (paras [51]–[55]).

3. The statutory prohibition concerns disclosure or obtaining information in a manner that directly informs alleged persecutors that an international-protection application has been made and jeopardises the applicant’s or family’s protected interests. Consent would not prevent a breach where an inquiry had that effect (paras [51]–[55]).

4. The verification exercise created no such risk. The official did not provide the appellant’s name or personal details and the numbered documents did not match the police register. The hypothetical position had genuine documents been verified could not establish an actual breach or risk in this case (paras [56]–[61]).

5. A fact-finding tribunal need not expressly address every item of evidence. Given the sustainable findings that the appellant’s core account was false and that he relied on false documents, the complaint that medical, photographic and background material was not separately addressed disclosed no material error (paras [62]–[63]).

6. The bias allegation failed. Such an allegation is serious and requires proper steps in response to the judge’s account. The appellant’s late evidence, his limited ability to assess exchanges conducted through an interpreter, and the asserted imbalance in questions asked of advocates did not demonstrate unfairness. Counsel who considers that a judge is behaving inappropriately should raise the matter at the hearing; delay before making the complaint may be relevant, although not determinative (paras [68]–[82]).

7. The Tribunal nevertheless criticised the First-tier Tribunal Judge’s sarcastic written observation, holding that sarcasm has no place in judicial decisions (paras [84]–[85]). An anonymity direction was continued.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal, finding no material error of law in the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appeal against the refusal of the protection and human-rights claim; its decision was promulgated on 6 November 2017.
• Secretary of State: refused the protection claim on 17 March 2017.