GUEST BLOG by Counsel, Becket Bedford: Ahmed, JK v Sweden and the burden and standard of proof

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.

 

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.

 

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.

 

As a general proposition of law, this rule came to be known as the rule in Tanveer Ahmed.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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).

 

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).

 

It emerges from the same line that the decision of the Strasbourg Court in Singh v Belgium, again whilst concerned with documentary 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.

 

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.

 

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).

 

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 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.

 

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.

 

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 …”

 

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.

 

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.

 

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.

 

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.

 

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.

 

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.

 

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).

 

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.

 

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 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.

 

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.

 

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.

 

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].

 

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.

 

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.

 

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.

 

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.

 

 

BECKET BEDFORD

22 May 2018

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