Upper Tribunal guidance on credible documentary evidence

The Upper Tribunal in QC (verification of documents; Mibanga duty) China [2021] UKUT 33 (IAC) has given useful guidance on how to approach documentary evidence submitted by asylum appellants. 

The tribunal has also clarified the circumstances in which Home Office must make enquiries to verify an appellant’s documentary evidence before rejecting it as false (a ‘verification obligation’). In cases where the verification obligation arises, but the Home Office doesn’t do anything to verify the document’s authenticity, any complaints about whether the document is genuine will be ignored by the tribunal.

That said, the verification obligation will arise in “exceptional circumstances”: only where the evidence is significant to the claim and it wouldn’t be difficult to verify. Arrest warrants, as in this case, are not the sort of documents that give rise to the verification obligation.

Still, the central point here is that the Home Office’s stock approach of undermining the appellant’s evidence without backing it up will not always be enough. If challenging evidence that’s central to the appellant’s claim and easy to verify, the Home Office will need to do its homework before calling it into question.

Background

QC had claimed asylum as a Tibetan Buddhist who feared persecution by the Chinese authorities. Very late on in the appeal, he submitted a Chinese warrant for his arrest, which the Home Office Presenting Officer argued had no evidential value – a conclusion that the First-tier Tribunal judge, in dismissing the appeal, agreed with. The question for the Upper Tribunal was whether the Home Office was allowed to attack the warrant’s authenticity without carrying out any verification checks first.

Examining the authorities, it concluded that there did indeed exist a duty on the Home Office to make inquiries before crying foul, particularly if that bit of evidence is central to the appellant’s claim. 

Examining QC’s arrest warrant, the tribunal held that it was submitted too late in the day for verification to have been practically possible, and was “unremarkable” in its nature (“the kind of document encountered by judges of the First-tier Tribunal on a daily basis in protection appeals”). As such, it found that the obligation did not arise in this case.

The Mibanga duty

The tribunal also gave some guidance on the Mibanga duty to assess the case and its evidence “in the round” – recently discussed by the Court of Appeal in the case of MN. Essentially, the Mibanga duty is to reach conclusions only after considering all of the evidence, rather than examining a bit of the evidence, drawing a conclusion, and then looking at the rest of the evidence in that light. 

Looking at some authorities (and some half-baked cake-making analogies), the tribunal explained that credibility was not an issue in every protection case, and so establishing the actual relevance of credibility inferences to the claim is the first step. If credibility is relevant, only then does the duty kick in.