MAH (Egypt) v Secretary of State for the Home Department

An asylum claim requires an assessment of future risk, not proof of past facts on the balance of probabilities. A well-founded fear exists where persecution has a reasonable degree of likelihood, even if its probability is substantially below 50%.

There is no legal requirement for corroborative evidence. Its reasonably unexplained absence may carry appropriate weight, but failure to satisfy every condition in article 4(5) of the Qualification Directive or paragraph 339L of the Immigration Rules does not make corroboration compulsory. The decision-maker must still assess all the evidence in the round and consider the benefit of the doubt under the relatively low threshold.

An appellate court may intervene where material errors of logic or application of the standard of proof make the fact-finder’s conclusion legally unsustainable.

The appellant, an Egyptian national, claimed asylum after leaving Egypt as a child. He feared persecution because the authorities had allegedly attributed Muslim Brotherhood involvement to his father, who was arrested, imprisoned and later died in custody. Documentary and expert evidence supported significant parts of his account.

The First-tier Tribunal made findings favourable to the appellant, but its decision was otherwise set aside. On redetermination, the Upper Tribunal accepted the father’s imprisonment and several supporting circumstances. It nevertheless dismissed the protection claim because the appellant had not obtained potential corroboration from his father’s lawyer, a human rights organisation or family members.

The appellant challenged the Upper Tribunal’s approach to the standard of proof, credibility, corroboration and the evidence as a whole. The central issue was whether its rejection of the protection claim was reasonably open on the evidence.

1. Appeal allowed. The Upper Tribunal’s decision was set aside and the underlying appeal was allowed on the ground that the appellant qualified as a refugee. Singh LJ gave the judgment, with which Warby and King LJJ agreed.

2. The applicable standard was a reasonable degree of likelihood of persecution for a Convention reason. The inquiry concerned an assessment of risk, not proof on the balance of probabilities. The Upper Tribunal repeatedly referred to the lower standard but did not define it and, in substance, demanded materially more than the law required. Its focus on whether Liman 440 held only political prisoners illustrated the excessive threshold: it was sufficient that the prison was notorious for holding political prisoners and that this was consistent with the account.

3. There is no legal duty to corroborate an asylum claim. The reasonably unexplained absence of evidence which could readily have been obtained may receive appropriate weight. That principle is contextual, however, and is not a checklist requiring every possible source of corroboration to be pursued.

4. Article 4(5) of the Qualification Directive and paragraph 339L of the Immigration Rules provide that corroboration is unnecessary when their stated conditions are satisfied. They do not provide that corroboration becomes compulsory when one or more conditions are unsatisfied. The decision-maker must still consider whether to give the applicant the benefit of the doubt, applying the reasonable-degree-of-likelihood threshold and assessing all credibility indicators in the round.

5. The Upper Tribunal acknowledged the absence of a legal duty to corroborate but made each decisive adverse finding because further supporting material had not been obtained. In the circumstances—including the appellant’s age, his own evidence, reliable documents and consistent expert evidence—that approach improperly converted missing corroboration into a finding that he was untruthful. It also omitted material evidence about repeated official visits to the family home and failed adequately to consider conditions affecting lawyers and human rights organisations in Egypt.

6. Applying the correct principles, only one conclusion was reasonably open: there was a reasonable degree of likelihood that the appellant would face persecution if returned. Under section 14(2) and (4) of the Tribunals, Courts and Enforcement Act 2007, the Court remade the decision rather than remit a case which had already experienced prolonged proceedings.

• Court of Appeal (Civil Division): allowed the appeal, set aside the Upper Tribunal’s decision and remade the underlying decision by allowing the protection appeal on the ground that the appellant qualified as a refugee: [2023] EWCA Civ 216.

• Upper Tribunal (Immigration and Asylum Chamber): redetermined and dismissed the appeal on 17 September 2021 after accepting preserved factual findings but rejecting the appellant’s credibility on three core matters.

• First-tier Tribunal: made favourable findings on 26 November 2019 concerning the father’s arrest, imprisonment and death. Its decision was otherwise set aside by the Upper Tribunal on 17 August 2020.