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Home Office CAN speak to your persecutor without asking you

Home Office CAN speak to your persecutor without asking you

So says the Upper Tribunal in PA (Protection claim, Respondent’s enquiries, Bias) [2018] UKUT 337 (IAC); at least if your confidentiality is preserved.

Officials checked Bangladeshi police records for evidence of persecution

PA, a Bangladeshi national, claimed asylum in April 2016 on the basis that he was an active member of the Bangladesh National Party. He had entered the UK in 2012 and was placed on reporting conditions in January 2013; the reason for the late asylum claim is not explained. In support of his claim the appellant had provided First Information Reports (FIRs) and charge sheets, issued by the police in Sylhet at the behest of his political opponents.

With a zeal that is not seen in countries where false documents are not so readily available*, the Home Office conducted a document verification exercise and produced a report. A member of staff from the British High Commission visited the police station and asked to verify the FIRs and the charge sheets. In a move that seems strange to us in the age of GPDR, the officer in charge looked in the register and after not locating the documents relating to PA happily allowed the High Commission official to have a look through the records himself.The official could not locate the original documents either. 

The Home Office unsurprisingly found the documents to be false and refused the applicant’s claim for asylum. The First-tier Tribunal agreed.

The Upper Tribunal granted permission to appeal on three grounds:

  • The judge failed to assess the appellant’s risk now that the Home Office had “alerted the persecutors themselves of his asylum claim”
  • The judge had failed to consider other documentary evidence provided;
  • Judicial bias.

The second ground was given short shrift by the tribunal. The documents in question were photographs and medical evidence said to emanate from Bangladesh. The judge was not required to refer expressly to every piece of evidence. In any event, the appellant had provided false documents and the core of his claim been found a fabrication.

Duty of confidentiality to asylum seekers only extends so far

With the first ground however, the appellant had some assistance from the case of VT (article 22 Procedure Directive – Confidentiality) Sri Lanka [2017] UKUT 368 (IAC).

The grounds quoted paragraphs 38(vii) of VT as follows:

There is a general duty of confidentiality during the process of examining a protection claim, including appellate and judicial review proceedings. If it is considered necessary to make an inquiry in the country of origin the country of asylum must obtain the applicant’s written consent. Disclosure of confidential information without consent is only justified in limited and exceptional circumstances, such as combatting terrorism.

The relevant provisions of the Immigration Rules are:

339IA. For the purposes of examining individual applications for asylum

(i) information provided in support of an application and the fact that an application has been made shall not be disclosed to the alleged actor(s) of persecution of the applicant, and

(ii) information shall not be obtained from the alleged actor(s) of persecution that would result in their being directly informed that an application for asylum has been made by the applicant in question and would jeopardise the physical integrity of the applicant and their dependants, or the liberty and security of their family members still living in the country of origin.

Strong support for PA’s appeal, you might think, as the Home Office had not asked for his consent. President Lane and Judge Pitt forensically dissect the reasoning of the tribunal in VT and concluded differently at paragraph 51.

What is prohibited by… paragraph 339IA(ii) of the Immigration Rules is the obtaining of information in a manner that would result in alleged actors of persecution being directly informed of the fact that an application for international protection had been made by the applicant, which would jeopardise his or his family’s physical integrity, liberty or security.

The tribunal concluded that consent or otherwise from an applicant is not relevant to a breach of the rules:

For these reasons, it is wrong to interpret paragraph 38(vii) of VT as holding that consent is a legal necessity in all circumstances, or as implying that, if consent is given, there can be no question of a breach…

On the facts of the case the tribunal concluded that the verification procedure had not put the appellant of his family at risk and the appeal was dismissed.

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The Home Office confirmed to the tribunal that if the verification exercise were to take place now, the official would no longer provide the FIR number but would just ask to look at the register. Possibly GDPR has required a change in policy?

Bias allegations should be raised as soon as possible

The tribunal provides guidance for those making allegations of bias, ultimately deciding an allegation was not made out, again, although finding the hearing to have been fractious and identifying sarcasm in the determination.

The judgment laments at paragraph 83 that hearings in the First-tier are not recorded. The cost of doing so, it acknowledged, would outweigh the time the Upper Tribunal spends dealing with allegation of bias. I’m not sure how many allegations of bias there are or how the Courts and Tribunals Service would feel about paying for it. Whether recording proceedings means that false allegations would no longer be made or judges would not present as biased for the benefit of the tape, or possibly both, one could not say.

I think the most useful comments will be that the bias allegation must be made at the hearing or as soon after as possible. I have only ever done this once when I believed a judge was overstepping the mark and the behaviour of the judge changed immediately.  Certainly, asking a judge to note your concerns on the record of proceedings will sharpen their mind and probably result in the notes of the HOPO reflecting what you say accurately. 

*I once heard tell of an Immigration Adjudicator (remember those?) who holidayed in Bangladesh and within two days had valid Bangladeshi birth, marriage and death certificates issued in his name by the authorities.

The official headnote

1. Respondent’s inquiries in country of origin of applicant for international protection

(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant’s country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 368 (IAC) is not to be read as holding to the contrary.

(2) The United Kingdom’s actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant’s (or his family’s) physical integrity, liberty or security.

(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.

2. Allegations of judicial bias

(1) An allegation of bias against a judge is a serious matter and the appellate court or tribunal will expect all proper steps to be taken by the person making it, in the light of a response from the judge.

(2) The views of an appellant who cannot speak English and who has had no prior experience of an appeal hearing are unlikely to be of assistance, insofar as they concern verbal exchanges between the judge and representatives at the hearing of the appeal. In particular, the fact that the judge had more questions for the appellant’s counsel than for the respondent’s presenting officer has no bearing on whether the judge was biased against the appellant.

(3) It is wholly inappropriate for an official interpreter to have his or her private conversations with an appellant put forward as evidence.

(4) As a general matter, if Counsel concludes during a hearing that a judge is behaving in an inappropriate manner, Counsel has a duty to raise this with the judge.

(5) Although each case will turn on its own facts, an appellate court or tribunal may have regard to the fact that a complaint of this kind was not made at the hearing or, at least, before receipt of the judge’s decision.

(6) Allegations relating to what occurred at a hearing would be resolved far more easily if hearings in the First-tier Tribunal were officially recorded.

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