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No Obligation To Obtain The Consent Of An Applicant For International Protection Before Contacting Alleged Persecutors:PA (Protection Claim, Respondent's Enquiries, Bias) [2018] UKUT 337 (IAC)

Posted by: Gherson Immigration

NB the applicant in this case was the subject of an order for anonymity, and is therefore referred to throughout this blog as 'PA'.

The issue in this case concerned the verification exercise undertaken during the assessment of PA's application for international protection, in which a member of the British High Commission without the applicant's consent entered a police station in Sylhet, Bangladesh, physically located their records and searched them. The applicant argued that the judge, in allowing this exercise, had failed to assess the risks to which this exposed him, as they had alerted his persecutors as to his application for asylum. The appeal, however, was dismissed, seemingly allowing implicit authorisation for the UK authorities to establish direct contact with an applicant's persecutors while considering an application for international protection, without having to seek the applicant’s prior consent.

Background

PA was a Bangladeshi citizen who arrived in the UK shortly after he turned 18. He claimed asylum in April 2016, stating that he had previously been an active member of the Bangladesh National Party (BNP). He claimed that he had not been actively involved since arriving in the UK. His family, however, remained active within the BNP. PA stated that he was afraid because local members of the Awami League, the current governing political party, had asked the police to issue a warrant for his arrest and had issued threats against his family while trying to establish his whereabouts. He also stated that his brothers had been forced into hiding in 2008 and that his sister had been obliged to abandon her studies. He said that Awami League members had made an attempt on his life and that he too had been forced into hiding.

In support of his application for international protection, PA submitted documents which he said he had obtained from Bangladesh. Among these documents were two 'First Information Reports' and two charge sheets, which were reportedly issued at a police station in Sylhet. The Home Office (the respondent in this case) then conducted a verification exercise in which a member of the High Commission in Dhaka visited the named police station, obtained the records and reviewed them. The High Commission officer could not find the First Information Reports or charge sheets. PA’s application for international protection was subsequently refused because the Home Office determined that he had submitted false documents. In the refusal letter, reference was made to the official from the High Commission in Dhaka and the verification exercise they had undertaken.

The First-Tier Tribunal agreed that PA’s application for international protection should have been refused.

Issues considered by the Upper Tribunal

 

The Upper Tribunal granted PA permission to appeal based on three grounds:

  1. The judge failed to properly assess the appellant’s risk given that the respondent “has now alerted the persecutors themselves of his asylum claim”;
  2. The judge “has failed to consider numerous pieces of documentary evidence provided and not applied anxious scrutiny”; and
  3. The determination of the judge “is infected by judicial bias”.

The second ground was eventually not given much consideration as it was found that a judge does not have to consider every piece of documentary evidence.

Decision

In this appeal the Upper Tribunal considered whether the contact established with the police station in Bangladesh breached the duty placed on the UK authorities not to alert Bangladesh to the fact of PA’s asylum claim. They also considered whether the Home Office was required to notify PA prior to establishing such contact. The Upper Tribunal found that the Home Office was not obliged to notify PA, because the High Commission officer’s verification exercise “could not rationally be said to have created a risk to the appellant”. Despite the ruling in the previous case of VT (article 22 Procedure Directive – Confidentiality) Sri Lanka and paragraph 339IA of the Immigration Rules, the Tribunal reached this decision because on the facts of this specific case the High Commission officer in Dhaka had only referred to the First Information Report numbers in their enquiry, rather than the applicant’s name or personal details.

It should be noted, however, that the judgment did contain confirmation from the Home Office that if the verification exercise were to be conducted today, the official would not be allowed to give the authorities the specific First Information Report number. It would be interesting to consider the impact of GDPR and obligations relating to personal information in light of the decisions reached in this case.

With regards to allegations of judicial bias (the third ground listed above), the Upper Tribunal concluded that although the hearing before the First-Tier Tribunal had been “at times, fractious”, they would not go so far as to say the applicant had been denied a fair hearing. It is to be noted that there were difficulties in ascertaining exactly what had happened in the First-Tier Tribunal, as these hearings are not recorded. As suggested by Free Movement’s report (see link above) any future allegations of bias against a court or tribunal would be best supported by records of what had been said previously, with the relevant concerns captured as accurately as possible.

 

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2018

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