Tanveer Ahmed, JK v Sweden and the burden and standard of proof

Ahmed, JK v Sweden and the burden and standard of
proof
1. In the Court of Appeal, verification by the State of documentary or
other evidence is sometimes, but rarely, required to assist an
applicant to establish his claim: see MA (Bangladesh) v SSHD [2016]
EWCA Civ 175 at §29; PJ (Sri Lanka) v SSHD [2015] 1 WLR 1322 at
§29, explaining and confirming the Tribunal decisions in Ahmed v
SSHD [2002] Imm AR 318; MJ v SSHD [2013] Imm AR 799; and NA
v SSHD [2014] UKUT 205.
2. In MA (Bangladesh) at §30 per Lloyd-Jones LJ, as he then was, it was
conceivable that exceptionally there might be a duty where evidence
of central importance was capable of straight forward verification.
On the other hand, at §45 verification added nothing to a claim
which was clearly unfounded.
3. Ahmed held that there was no general principle by which deciding not
to verify documentary or other evidence, even if it was supportive of
a protection claim, led to a presumption of protection.
4. As a general proposition of law, this rule came to be known as the rule
in Tanveer Ahmed.
5. It has survived repeated challenge in the tribunal and in this court. In
particular, it is said in the light of PJ (Sri Lanka) that it cannot be
challenged on the basis of the decision of the second section of the
European Court of Human Rights in Singh v Belgium, 33210/11, 2
October 2012: see MA (Bangladesh) at §28, per Lloyd-Jones LJ.
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6. In the case of PJ (Sri Lanka) at §30 per Fulford LJ, the decision of the
second section in Singh v Belgium was the exceptional case that
proved the rule in Tanveer Ahmed.
7. Fulford LJ held that on the facts of Singh v Belgium the European
Court of Human Rights found that a central piece of evidence capable
of easy verification had been ignored at two different levels of
decision making by the national authorities. In these circumstances,
there was exceptionally a duty of verification, breach of which
violated Article 3.
8. The actual decision in PJ (Sri Lanka), however, to allow the appeal in
that case, did not turn on the rule in Tanveer Ahmed or on any duty of
verification, but instead at §41 it turned on a failure to appreciate a
relevant fact.
9. Nevertheless, it is trite that in our law, it is a rare case that cannot be
dismissed without verification of the central claims of an applicant,
even when they are supported by documentary or other evidence, if,
in the round, the applicant is not found to be credible.
10. In European Union law and in Convention law the opposite applies
and only rarely may a protection claim be dismissed without
verification of the documentary or other evidence which supports
such a claim.
11. The Qualification Directive (Directive 2004/83/EC), for example,
does not even call for a credibility assessment in every case. It is
reserved for those cases in which aspects of an applicant’s statements
are not supported by documentary or other evidence: see Article 4(5),
transposed into domestic law by Immigration Rule, paragraph 339L.
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12. According to the case law of the Strasbourg Court, it is only when the
evidence adduced by an applicant is incapable of showing substantial
grounds for believing he or she would face a real risk of treatment
prohibited by Article 3 that the national authorities may dispense
with the need to verify the evidence before rejecting a claim for
international protection.
13. The case law of the European Court of Human Rights repeatedly
emphasises that the position of a person about whom information is
presented, which gives strong reasons to question the veracity of his
or her submissions, but who nonetheless adduces documentary or
other evidence capable of proving his protection claim, is very
different from the person who is not able to adduce evidence capable
of proving an international protection claim.
14. In the former case the national authorities are prohibited from
removing the applicant until such evidence is verified and any doubts
about it are removed. In the latter case under the Procedures
Directive (2005/85/EC), for example, the applicant may be subject to
accelerated procedures: Article 23(4).
15. These propositions emerge from the strong line of decisions of the
different sections of the European Court of Human Rights in RC v
Sweden, 41827/07, 9 March 2010, at §50 and 53 and MA v
Switzerland, 52589/13, 18 February 2015, at §55 and 59-69, which
address the issue of documentary or other evidence, but were not
referred to in PJ (Sri Lanka) or MA (Bangladesh).
16. It emerges from the same line that the decision of the Strasbourg
Court in Singh v Belgium, again whilst concerned with documentary
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or other evidence, was in fact at §103 illustrative of a wider principle
of more singular importance, declared by the Grand Chamber in
Article 3 cases generally and most recently in its decisions on the
burden and standard of proof in the assessment of international
protection claims: see JK v Sweden, 59166/12, 23 August 2016, at
§91-98, or in so-called medical cases: see Paposhvili v Belgium,
41738/10, 13 December 2016, at §186-187.
17. The Grand Chamber holds in JK v Sweden that to ensure asylum
applicants have the benefit of the doubt, their burden is discharged
when they adduce evidence, which is capable of proving real risk on
return, whereupon the burden shifts to the government to dispel any
doubts or uncertainty.
18. Accordingly an applicant need only “adduce evidence capable of
proving” there are substantial grounds for believing removal would
expose him or her to a real risk of ill-treatment; and that where such
evidence is adduced, it is for the Government to “dispel any doubts
about it”: see JK v Sweden, cited above, §91; Paposhivili v Belgium,
cited above, §186-187; FG v Sweden, 43611/11, 23 March 2016, §120
(GC); Saadi v Italy, 37201/06, 28 February 2008, §129 (GC); NA v
UK, 25904/07, 17 July 2008, §111 (4th section); RC v Sweden, cited
above, §50 (3rd section); MA v Switzerland, cited above §55 (2nd
section).
19. The general statement of the protection principle by the Grand
Chamber in the case of Paposhvili v Belgium at [186], [187] is
accepted by this Court in AM (Zimbabwe) v SSHD [2018] HRLR 9,
[2018] EWCA Civ 64 at [16] per Sales LJ, who states that whereas
the applicant has the overall burden of proving a protection claim, in
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the decision of the Grand Chamber this is achieved by raising a prima
facie case of infringement of Article 3, which then casts an evidential
burden onto the national authorities which seek removal.
20. This principle (the protection principle), which only requires that an
asylum applicant adduce evidence capable of proving his case, is also
the general governing principle to be found in the case law of the
Court of Justice of the European Union.
21. In Case C-277/11, MM v Minister for Justice, Equality and Law Reform
and Others, judgment of 22 November 2012, at [64], cited by the
Grand Chamber in JK v Sweden at [49], the CJEU held:
“In actual fact, that ‘assessment’ takes place in two separate stages. The first
stage concerns the establishment of factual circumstances which may
constitute evidence that supports the application …”
22. Once evidence is adduced which is capable of proving an application,
the burden shifts and the defending state must “remove all doubt”: see
Singh v Belgium at [103], cited in MA (Bangladesh) v SSHD at [25]
per Lloyd-Jones LJ.
23. The greater duty to remove all doubt (the protection principle)
encompasses a lesser duty to verify documents going to the crux of an
asylum claim, which are capable of belief or in other words, which
are capable of proving a claim for international protection.
24. Despite this Court’s broad assent to the protection principle as cited
above in AM (Zimbabwe) at [16] and MA (Bangladesh) at [28], there
remains a fundamental difference in the application of the protection
principle to asylum claims by courts or tribunals in the UK with the
position at supra-national level.
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25. The root difference is that an objective test applies at supra-national
level to the determination of whether an applicant has adduced
evidence capable of proving his or her protection claim.
26. At the supra-national level, evidence is not capable of proving a
protection claim if and only if no reasonable tribunal could find it
capable of proving a protection claim. It is submitted that this is the
protection principle.
27. Another way of expressing the protection principle is that if on one
legitimate view of the evidence, it is capable of proving a protection
claim, then the burden shifts to the government to dispel any doubts
about it.
28. Thus in RC v Sweden at §50, and MA v Switzerland at §55, even
though it was accepted by the European Court of Human Rights that
on one view it was reasonable for the national determining
authorities to harbour strong doubts over the asylum seekers’
submissions, nevertheless those doubts were not such, after taking
account of the asylum seekers’ explanations (RC v Sweden at §52-57;
MA v Switzerland at §59-63), as to render the documentary or other
evidence incapable of proving their protection claims (RC v Sweden at
§53; MA v Switzerland at §63-69).
29. As a result the national authorities were condemned for rejecting the
asylum applicants’ claims under Article 3 without taking steps to
remove the doubt to which the documentary or other evidence gave
rise.
30. By contrast historically at the level of the Tribunal in a domestic
setting in the U.K. a judge asks whether the evidence adduced by an
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applicant proves the protection claim to the lower standard, not
whether on one view it is capable of proving the claim. The burden
does not shift and where in the decision of the Tribunal the case fails
and on one view of the evidence, the Tribunal is entitled to that
decision, then in law at the domestic level it was of no further
account that a judge in the same or different Court or Tribunal could
reasonably take a different view: see Otshudi v SSHD [2004] EWCA
Civ 893 at [20] and [23], a case where two different adjudicators reached
opposing, but apparently legally tenable views, on the same evidence given by
two brothers in separate asylum appeals.
31. The domestic position was the very antithesis of the position under
the Convention: if a case could fail, it may very well do, even if on
one legitimate view of the applicant’s evidence, it was capable of
proving his or her claim. Whereas under the Convention, if a case
may succeed it should do, unless the national authorities are in a
position to remove any doubt about it.
32. In domestic law, once the view was taken that an applicant might be
disbelieved, his account and any documentary or other evidence in
support of it, might be and often was rejected in the round, with no
attempt at verification. Whereas under the Convention it will be a
rare case where the State can refuse a protection claim without
verification of the documentary or other evidence which supports it.
33. Questions of expediency or of the difficulty or the costs associated
with verification are subordinate, it is submitted to the procedural
guarantees and the absolute protection offered by Article 3 which
requires the rights under it are meant to be effective above all: MA v
Switzerland at [65]; JK v Sweden at [97]; Singh v Belgium at [103].
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34. If a judge in a domestic Tribunal finds an applicant has proved his
case to the lower standard, by definition, the decision is more than a
finding that the evidence adduced by him or her is capable of proving
a protection claim.
35. The initial function demanded of a judge by the case law of the
European Court of Human Rights in the assessment of a protection
claim, is routinely performed by the Tribunal in the review of cases
certified under section 94 as clearly unfounded.
36. Claims, which on one view may legitimately succeed on the evidence,
or which are arguable on their face and which are therefore not
clearly unfounded, according to the test in R (Razgar) v SSHD [2004]
2 AC 368: see ZT (Kosovo) v SSHD [2009] 1 WLR 348 at [54] per
Lord Hope, must be capable by definition of discharging the
applicant’s burden of proof for the purposes of JK v Sweden;
Paposhvili v Belgium; or of shifting the evidential burden in
accordance with AM (Zimbabwe) v SSHD cited above.
37. Given the decision of the Supreme Court in Kiarie v SSHD; Byndloss v
SSHD [2017] 1 WLR at [54], [35] per Lord Wilson that a proposed
appeal for the purposes of section 82 must be taken to be arguable in
the absence of a certificate that it is clearly unfounded, it follows that
in order to give effect to the protection principle in accordance with
the decision of the highest domestic Court: in every protection appeal
the applicant’s burden is discharged from the outset and it falls in
each case to the Secretary of State to dispel the doubt on appeal.
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BECKET BEDFORD
21 May 2018
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