DY (ASSISTED PERSON) FOR JUDICIAL REVIEW

Factual and Procedural Background

The Petitioner, a citizen of a foreign country, claimed asylum on 13 December 2018, alleging a real risk of physical harm from a criminal gang seeking to coerce him into re-enlisting in the army to steal weapons and ammunition. The Respondent accepted the Petitioner had served in the military but refused the asylum claim. The Petitioner appealed to the First-tier Tribunal (FtT), which dismissed the appeal on 29 August 2019. Applications for permission to appeal to the Upper Tribunal were refused both by the FtT and the Upper Tribunal. The Petitioner then sought judicial review to reduce the Upper Tribunal's refusal and to remit the case for reconsideration. Due to Covid-19 restrictions, the substantive hearing was held remotely.

The FtT's decision was based on a chronology drawn from various sources, including oral evidence and documents, but contained inconsistencies making it difficult to establish a clear factual narrative. The Petitioner’s military service began in February 2011, including a period securing a maximum security prison. He was threatened by a gang member named Isidro to steal weapons and ammunition, which he refused. Subsequent threats and intimidation by the gang led the Petitioner to flee to the United Kingdom in December 2018, where he claimed asylum.

The Respondent refused the asylum claim in May 2019. The Petitioner supported his appeal with an expert report on the country’s situation, a mental health report, and three military documents certified by military officials. The FtT found inconsistencies and anomalies in the evidence and documents, concluding the Petitioner had not proven his claim to the required standard and dismissed the appeal.

The Petitioner’s applications for permission to appeal to the Upper Tribunal were refused. The Upper Tribunal upheld the refusal, finding no arguable error of law in the FtT’s approach or reasoning. The Petitioner then brought the present judicial review.

Legal Issues Presented

1. Whether the FtT erred in law by failing to recognise a duty on the Respondent to verify the authenticity and reliability of documentary evidence central to the Petitioner’s claim.
2. Whether the FtT erred in its treatment of the expert report by applying an inappropriate interpretative approach and re-characterising evidence based on its own perception of reasonableness.
3. Whether the FtT failed to give adequate reasons for its findings on specific issues relating to the gang’s motives and the Petitioner’s memory inconsistencies.

Arguments of the Parties

Appellant's Arguments

• The FtT erred by failing to recognise the Respondent’s duty to verify the military documents, which were central to the claim, especially since verification was alleged to be a simple process that had not been undertaken.
• The expert report was misinterpreted by the FtT with an unduly literal approach and the FtT wrongly re-characterised evidence based on its own view of reasonableness.
• The FtT failed to provide adequate reasons for its conclusions on why the gang would want the Petitioner to abandon military service and why poor memory did not explain inconsistencies in the evidence, rendering its decision irrational or perverse.
• The Respondent’s argument that the verification point was not raised before the FtT should not be entertained as it was a point of law with strong prospects of success and no unfairness would result from allowing it to be raised.

Respondent's Arguments

• The Upper Tribunal correctly held that the main reason for rejecting the documents was inconsistencies within the documents and with the Petitioner’s account, not doubts about authenticity, so verification would not have affected the outcome.
• The verification argument was not raised before the FtT, was not obvious, and the FtT had no duty to consider it. Even if the court had discretion to allow the point now, it should not exercise it because the appeal proceeded on the basis that authenticity was not in issue.
• There is no general duty on the Respondent to verify documents submitted by claimants; such a duty arises only exceptionally when documents are central and a simple inquiry would conclusively resolve authenticity and reliability, conditions not met here.
• The other grounds of appeal amounted to disagreement with the FtT’s assessment and did not disclose any arguable error of law or material error justifying permission to appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the distinct roles of the Secretary of State (Respondent) and the tribunal. It emphasised that any duty to verify documentary evidence lies with the Respondent, not the tribunal, and that the tribunal’s role is to assess the weight to be given to the evidence as a whole. The court found that the FtT had properly considered the documents and the inconsistencies within them and with the Petitioner’s oral evidence. The FtT’s refusal to attach weight to the documents was primarily due to these inconsistencies rather than concerns about authenticity, which the Respondent did not challenge.

The court rejected the Petitioner’s argument that the Respondent failed in a duty to verify the documents, holding that the documents were not central to the protection claim in the sense required by the case law, nor was verification a simple and conclusive process in this case. The court noted that the Petitioner’s attempt to compel verification to resolve his own evidential inconsistencies exceeded the exceptional circumstances outlined in precedent.

Regarding the expert report, the court accepted the Upper Tribunal’s view that the FtT’s approach was not an error of law but a permissible assessment of the evidence’s relevance and consistency. The court also held that the FtT had given adequate reasons for its findings, meeting the standards for intelligibility and sufficiency of reasons.

The court further addressed procedural points, rejecting the Petitioner’s submission that the Respondent should be precluded from raising arguments not advanced before the FtT, distinguishing the relevant authorities and confirming that it is common for respondents to argue that appeals should fail on grounds other than those relied upon by the tribunal below.

Holding and Implications

The court REFUSED to grant reduction of the Upper Tribunal’s decision and dismissed the judicial review petition. The Upper Tribunal’s refusal of permission to appeal was upheld.

The direct consequence is that the Petitioner’s asylum appeal remains dismissed and no further appeal on the grounds raised is permitted. The court did not establish any new legal precedent but reaffirmed existing principles concerning the duty to verify documentary evidence, the respective roles of the Secretary of State and tribunals, and the standards for assessing documentary inconsistencies and expert evidence in asylum claims.