by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ Revised 2021 Edition ~
Types of documentary evidence
Obtaining documentary evidence
Disputes over authenticity
Defending the document
The means by which it was obtained
Enquiries in the country of origin to verify the document
Expert evidence as to whether the document is authentic
Originals and copies
Demonstrating that a document is false
Exclusion of the appellant where forgery is alleged
16.1 Chapter 18 deals with general country reports. This chapter deals with documents which corroborate specific elements of your client's account, often documents which mention your client by name.
16.2 The obstacles that appellants face in obtaining such specific corroboration from the country of origin are formidable. Detention may well have been extra-judicial and accordingly will not be susceptible to documentary corroboration. Your client may well have had no access to a lawyer. Doctors (if your client was able to obtain treatment) may be unwilling through fear to provide reports. Outlawed political or rebel organisations seldom issue membership cards or minutes. Even if your client was in possession of relevant documentary evidence in the country of origin, there are numerous reasons why it may not be possible to recover it in the UK, including the dangers of attempting to leave the country with such evidence and the dangers associated with sending it for those left behind. Further, if your client has endured a long and dangerous journey to the UK, there will be many opportunities for any documentation carried by her to get lost or damaged.
16.3 It is because of such obstacles that the law prohibits the rejection of an asylum seeker's account simply because there is no corroboration. Paragraph 339L of the Immigration Rules (see Chapter 1) and Article 4(5) of the Qualification Directive (Council Directive 2004/83/EC) (see the introduction as to applicability after 1 January 2021) expressly state this principle . However, if the Tribunal might otherwise be justified in making an adverse credibility finding against your client, specific corroboration may make the difference between winning and losing. That said, as the Upper Tribunal held in HKK (Article 3: burden/standard of proof) Afghanistan  UKUT 00386 (IAC):
The effect of Article 4.5 [of the Qualification Directive] is that a person who has otherwise put forward a cogent case should not fail, merely because he or she does not have supporting documentation. Nowhere in the Directive is it said that a person who has documentation which, on its face, may be said to be supportive of the claim (eg an arrest warrant or witness summons), but whose claim is found to be problematic in other respects, has nevertheless made out their case, so that the burden of disproving it shifts to the government.
• documents issued by the authorities of the country of origin indicating adverse interest in the appellant such as:
• arrest warrants,
• court documents,
• documents corroborating past detention such as release orders,
• call up papers;
• when dealing with non-state risks, evidence that attacks were reported to the authorities, such as police reports;
• confirmation from lawyers or NGOs (local or international) of past interventions in the case, e.g. attending a police station for the appellant or representing her in court;
• newspaper, other media or NGO reports naming the appellant or confirming an incident in which she was involved;
• evidence from hospitals or doctors confirming past injuries and treatment;
• evidence of membership of, or activities with opposition groups;
• confirmation of past employment, where that is relevant;
• evidence about lifestyle, e.g. salary or property ownership where it is alleged that the appellant is an economic migrant;
• letters from relatives, friends or colleagues in the country of origin (see the discussion in Chapter 15).
16.5 Despite the difficulties, you should always make every effort to pursue whatever corroboration may be available unless the material facts are not in dispute. If an event does appear to be susceptible to corroboration yet none is produced, the Tribunal may - absent a satisfactory explanation - hold it against your client. The same may apply if your client claims to have been mentioned in documents which could have been but have not been obtained. (See, e.g. Shanjarfi v SSHD  UKIAT 02923 where the Tribunal said that the Tribunal would be entitled to assume that a newspaper article could normally be obtained from its archive if the paper is still being published.)
16.6 Start by working through your client's history with her, exploring what documents might exist which could corroborate each material event that is in dispute, and what avenues might be explored to obtain such documents. If the history suggests that there may be open source information available online about your client, it is often worthwhile doing some initial searching online. If you speak the language of the country of origin (or can use the services of an interpreter who does), searching in that language is likely to be more fruitful.
16.7 If your client was lucky enough to have a lawyer at some stage, then he will be a prime source. If practical, it is preferable that you approach the lawyer directly rather than asking your client to do it. This will help to dispel any suspicion, however unjustified, that an improper approach was made (see below). The same applies to approaching other sources, whether NGOs or individuals, including relatives. Wherever possible you, rather than your client, should make the arrangements. (See also para 15.30 re: obtaining witness statements from the country of origin or other countries). Make the provenance of any documentary evidence obtained in this way clear to the Tribunal, preferably by including a brief witness statement setting out the steps you took to obtain the documentary evidence and exhibiting relevant correspondence (unless this contains privileged material).
16.8 If your client has been the subject of formal court proceedings, e.g. charged or released on bail, it may be possible to make enquiries through official records. The same may apply if your client has instigated a complaint to the authorities. You may instruct a local lawyer to do this. You should obtain the specific consent of your client beforehand, and take care to ensure that the lawyer is genuinely independent. Where your client fears the authorities in the country of origin and those authorities have a record of suppressing opposition, it may be difficult to identify a lawyer who is both competent and genuinely independent. At worst, he may report the enquiry to the authorities. It will in any event be necessary to proceed with caution because of the risk that even making such an enquiry may pose: as the Upper Tribunal acknowledged in VT (Article 22 Procedures Directive - confidentiality) Sri Lanka  UKUT 00368 (IAC), "In some countries the evidence might show that the judiciary is not independent and is inextricably bound to the alleged actor of persecution".
16.9 Where there are respected local human rights organisations, as exist, say, in Turkey or Sri Lanka, they can advise on reputable lawyers. The human rights committees of the Bar Council and the International Bar Association may also be able to advise on lawyers. You should not approach the local bar association without first checking whether there is any suspicion that it is under the influence of the authorities.
16.10 If you have instructed an expert in the case, he may also be able to advise on sources of documentation, and give an indication of what sort of documentation might be available. Even if an expert is not formally instructed, he may be willing to help on such a point. Some country experts have trusted contacts in the country of origin who are able to carry out investigations on the ground. See chapter 21 for identifying experts. Sometimes relatives can obtain such documents, but you must be sure of how they were able to obtain them, and that the ability to do so is not inconsistent with other parts of the case (see below para 16.57).
16.11 Newspaper reports mentioning the client may be available from the paper's archive (as indicated above) or through an internet search. If there is a web-based archive for a foreign language news organisation, you can use an interpreter to search it.
16.12 As to letters, emails or other communications from friends and relatives, if the purpose of the letter is simply to convey the writer's information to the Court, then where possible, this is best done by way of witness statement (see chapter 15). On the other hand, it may be important to demonstrate that your client received particular information at a particular time, for example, to explain the timing of the asylum claim, or to refute an allegation that an aspect of the case has recently been fabricated. Amongst the first advice you give your client should be to retain envelopes (which may show the date of posting) and other correspondence if there is any chance that the contents may be relevant.
16.13 The Home Office will often dispute the reliability of a document which, if accepted, establishes an important part of your client's account. Sometimes, the HOPO even argues that no weight can be placed upon corroborating evidence unless the Tribunal has first concluded that the appellant's account is credible. In ordinary litigation, it is of course precisely when a witness' credibility is in issue that corroboration is sought. Nor is the HOPO's line consistent with paragraph 339L of the Immigration Rules (see para 1.40A-1.40C).
16.14 The obvious response is to urge the asylum seeker to obtain corroborative evidence from her country so as to satisfy the Home Office's concerns. Yet if the asylum seeker is successful, the HOPO's response is too often that he will not entertain the corroborating evidence because of his doubts about the person's credibility! The Kafkaesque approach is epitomised in the HOPO's allegation that corroborative documents are 'self-serving', attracting this comment from the Tribunal in Rodriguez v SSHD (01/TH/00347):
If, by 'self-serving' the adjudicator means that they assist the appellant, then most documents produced by appellants would, by definition, be condemned in this way. In the absence of any more specific criticism 'self-serving' is not sufficient reason for not accepting that a document is reasonably likely to be genuine.
See too MJ (Singh v Belgium : Tanveer Ahmed unaffected) Afghanistan  UKUT 00253 (IAC), in which the Upper Tribunal commented that:
...we agree with the point made by Ms Laughton in submissions concerning the use of the term "self-serving". If that were the only basis upon which the judge had rejected evidence then we would find it to be lacking in proper reasoning. No doubt an appellant will generally, if not always, find it of assistance to put forward evidence that assists his case and to that extent such evidence may be regarded as "self-serving", but that cannot in any sense be said to be a reason for marginalising it.
See further SS ("self-serving" statements)  UKUT 00164 (IAC).
16.15 Sometimes, the HOPO completes the vicious circle by claiming not only that documents cannot corroborate an account which is not independently credible, but that the submission of documents to corroborate such an account is further evidence that it is not credible! In R v IAT, ex parte Gomez-Salinas  EWHC 287 (Admin), Sullivan J stated that:
There certainly have been instances where adjudicators have said in respect of a document produced by the claimant 'I do not accept that the document is genuine, therefore, that casts doubt on the credibility of the claimant'. In such cases, where the special adjudicator has effectively cast a burden on the claimant to demonstrate that a document is genuine and then reached adverse credibility findings because the appellant has failed to discharge that burden, the courts have been prepared to quash adjudicators' decisions on applications for judicial review.'
16.16 In R v Immigration Appeal Tribunal, ex parte Davila-Puga  EWCA Civ 931, Laws LJ accepted that an adjudicator may not apply the 'illegitimate compartmentalised approach' of reaching a view on the appellant's credibility as a 'distinct and prior exercise' to the assessment of the documentary corroboration. Laws LJ said:
I certainly accept that the genuineness of an asylum claim has to be judged by reference to the evidence as a whole, including... such documents as are relied on, unless of course they could, on the particular facts, be peremptorily dismissed as inauthentic.
16.16A In MT (Credibility assessment flawed - Virjon B applied) Syria  UKIAT 00307, the adjudicator had said that "In view of my findings of the Appellant's credibility, I give no weight" to documents from the country of origin which on their face supported the appellant's case. Drawing a comparison with the treatment of medical evidence in Virjon B v Special Adjudicator  EWHC 1469 (Admin) (see para 26.53), the Tribunal held that this was "plainly ... putting the cart before the horse" (para 7). As to the subsequent statement in the determination that "After looking at all the evidence in the round, I am not prepared to place reliance on these documents", the Tribunal said that
The damage had already been done by that stage, and we are satisfied that the adjudicator's subsequent reference to "looking at all the evidence in the round" was not sufficient to repair it.
See too the comments by McCloskey J in MK (duty to give reasons) Pakistan  UKUT 00641 (IAC) holding that it was insufficient for the FTT judge to state that he placed no weight on an independent document "taking into account the complete lack of credibility shown from the evidence before me". McCloskely J observed that:
...the Judge was clearly referring to his finding that the Appellant's evidence was not worthy of belief. However, the AMA letter was entirely free standing of the Appellant's evidence. ... It had to be addressed separately and directly.
16.17 In Tanveer Ahmed v SSHD  UKIAT 00439, the IAT explained that the burden would fall upon the Home Office to prove that a document was a forgery only where the document was 'apparently reliable'. It considered that it would usually be unnecessary for the Home Office to contend that a document was forged in order to dispute its reliability. It summarised its guidance as follows:
1 In asylum and human rights cases it is for an individual claimant to show that a document on which he seeks to rely can be relied on.
2 The decision maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round.
3 Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the balance of probabilities to the higher civil standard does not show that a document is reliable. The decision maker still needs to apply principles 1 and 2.
16.17A Tanveer Ahmed  UKIAT 00439 is frequently cited by the Home Office in refusal letters, and by HOPOs in their submissions, as authority for the quite incorrect proposition that if an appellant is not credible, no weight can be placed on any documentary evidence produced. They will rarely produce a copy of the decision (unsurprisingly, since doing so would show that their submission is incorrect). You should be wary of such inaccurate reliance on the case by the Home Office and be prepared to counter such submissions so that the Tribunal is not misled into thinking that is a proper basis for it to dismiss documentary evidence.
At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author, and whether the contents are true.
So even where the Home Office does not contend that a document is forged, it may still contend that it is false in the sense that it purports to establish something which is false.
16.19 It is important to bear in mind this possibility. It may arise either through mistake or deliberate misrepresentation by the creator of the document. For example, a death certificate may be a genuine document but the subject is incorrectly named through an innocent mistake. Alternatively, the authorities might wish to publish false information about the death of a person who in reality remains in their custody or who had been killed by them. Or they may have been persuaded to do so in the interests of some other party, e.g. through bribery.
16.20 In practice, however, it is not uncommon for the Home Office to contend forgery where it disputes the probative value of a document. Suppose that there is before the Tribunal a piece of evidence which on its face is a police document confirming that the appellant has been charged with membership of an illegal organisation. But it is the Home Office's case that the appellant has never been charged. The Home Office may contend that the information contained in the document is false even where it does not contend that the document is a forgery. However, if it is the Home Office's case that the appellant was never charged, but the Home Office does not contend that the document was forged, then its submission (if it is logically coherent) must involve either of the following:
• that although the document emanated from the proper source, the information contained in the document is the result of an innocent mistake by the proper source, or
• that the proper source has deliberately published false information.
16.21 Unless the Home Office is able to point to specific evidence of mistake, the Tribunal is unlikely to be convinced by the first alternative. The prospects of the second contention being accepted should depend upon the facts and evidence in the particular case. One can well imagine that the police might wish to publish false documents incriminating someone in respect of a particular offence in order to facilitate his conviction. They might publish documents indicating that someone was wanted for a legitimate common law offence when he was actually wanted for illegitimate political reasons. But it is far less plausible that it would be in the interests of the police to issue a document falsely claiming that the appellant had been charged with membership of an illegal organisation.
16.22 The remaining alternative is that the police were persuaded by the appellant or those acting on his behalf to issue the document. The plausibility of such an allegation will again depend on the circumstances of the case. In some cases, it may be plausible. The IAT suggested in Tanveer Ahmed  UKIAT 00439, that 'birth, death, and marriage certificates from certain countries... can be obtained from the proper source for a 'fee' but contain information which is wholly or partially untrue'. Whether that applied in your case would depend on the evidence, i.e. whether there was evidence that the proper source of the document you had produced would readily publish false information or provide false documents for a fee.
16.23 It may well be rather less common for the police in a particular country to charge a person (or purport to charge a person) for a 'fee'. Whether such a service was available in the particular country would again be a question of evidence. So would the equally important question of whether the particular appellant would have been in a position to purchase the service. An allegation that a poor villager from an oppressed minority race had purchased such a service might have little credibility, even where evidence suggested that such a service was available to those with establishment connections or large amounts of money.
16.24 Obtaining evidence on these matters will obviously not be straightforward and the above discussion highlights the need to know the Home Office's position so that you can prepare properly. If the Home Office alleges that a document is a forgery or that the proper source has published false information, you ought to be permitted advance notice of the basis of that claim. The Home Office may advance both arguments in the alternative. But if the HOPO declines to advance either position, he cannot rationally dispute the reliability of the document.
16.24A In Hussein and Another (Status of passports: foreign law)  UKUT 00250 (IAC), the Tribunal said the following on the probative value of passports:
11. Passports have international recognition as assertions and evidence of nationality. On their face they constitute an address by the authorities of one State to the authorities of another at diplomatic level. The authority in whose name the passport is issued makes demands on the basis that the individual named in the passport is a national of and is entitled to be regarded as a national of the issuing state. Other States recognise that by treating the holder as a national of that State, and, in most circumstances, endorsing the passport to indicate that they have done so, particularly when a national border is crossed. Passports are the lubrication that allows international travel: without a reliable passport system each individual would have to prove identity, nationality and good standing by individualised evidence at every international border.
12. It is simply not open to an individual to opt out of that system by denouncing his own passport; and it is not open to any State to ignore the contents of a passport simply on the basis of a claim by its holder that the passport does not mean what it says. It is considerations such as these that lie behind the passage in the UNHCR Handbook, paragraph 93:
"93. Nationality may be proved by the possession of a national passport. Possession of such a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise. A person holding a passport showing him to be a national of the issuing country, but who claims that he does not possess that country's nationality, must substantiate his claim, for example, by showing that the passport is a so-called "passport of convenience" (an apparently regular national passport that is sometimes issued by a national authority to non-nationals). However, a mere assertion by the holder that the passport was issued to him as a matter of convenience for travel purposes only is not sufficient to rebut the presumption of nationality. In certain cases, it might be possible to obtain information from the authority that issued the passport. If such information cannot be obtained, or cannot be obtained within reasonable time, the examiner will have to decide on the credibility of the applicant's assertion in weighing all other elements of his story."
13. Of course the target of these observations is a passport that genuinely has been issued by the named State to the person named in it, and that is why, all over the world and particularly at international borders, such attention has to be given to the detection of forgeries and alterations in passports. A document detected as deceptive will not have the effect of a genuine passport. But the converse is also true: a document not detected as a forgery does have that effect, both at the diplomatic level and in the way its holder is perceived in a country that is not his country of nationality.
16.25 HOPOs have occasionally - and bizarrely - refused to disclose the Home Office's position on a document. That is irresponsible as well as unfair. The Home Office is not only the opposing party to the appeal: it is the public authority responsible for granting asylum to refugees, and is obliged to assess fresh evidence for that purpose. It cannot simply decline to form a view upon the reliability of a document which purports to establish a significant element of the claim. Article 4(1) of the Qualification Directive confirms that 'In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application'.
16.26 It is worth reminding the HOPO of the fundamental principles of fairness in an adversarial hearing, and of fact finding in this jurisdiction. It is obviously for the appellant to advance his appeal. But that does not mean that there is no burden upon the Home Office to explain its opposition to the appeal, to dispute evidence only where it has proper grounds to do so, and to explain what these grounds are. That would be the position even were the Home Office an ordinary litigant, quite apart from the special duties that attach to it as a public authority charged with discharging the UK's human rights obligations. The Tribunal's job is to reach a view on the evidence as a whole. But it must do so according to basic Karanakaran v SSHD  EWCA Civ 11 principles. He may not discard evidence when assessing risk unless he has no real doubt that it does not represent the truth. These principles apply to evidential disputes over documents as to any other evidential dispute.
16.26A In Singh v Belgium (App no. 33210/11, judgment of 2 October 2012), the Strasbourg court found a breach of Article 13 ECHR read with Article 3 when the Belgian authorities rejected the applicants' asylum claim without taking steps to verify documents emanating from UNHCR which confirmed they were Afghan nationals and had been protected by the UNHCR as refugees in India. These documents were rejected on the basis that they could easily have been falsified, but the Strasbourg court found that the Belgian authorities could readily have verified them with UNHCR, and their failure to do so meant that they had not given the applicants' asylum claim the rigorous scrutiny required by Article 3. In paragraph 35 of Tanveer Ahmed  UKIAT 00439 the Tribunal had said that:
In the absence of a particular reason on the facts of an individual case, a decision by the Home Office not to make enquiries, produce in-country evidence relating to a particular document or scientific evidence should not give rise to any presumption in favour of an individual claimant or against the Home Office.
Upon consideration we do not think that what was said in Singh is inconsistent with the quotation we have set out above from paragraph 35 of Tanveer Ahmed. Tanveer Ahmed does not entirely preclude the existence of an obligation on the Home Office to make enquiries. It envisages, as can be seen, the existence of particular cases where it may be appropriate for enquiries to be made. Clearly on its facts Singh can properly be regarded as such a particular case. The documentation in that case was clearly of a nature where verification would be easy, and the documentation came from an unimpeachable source. ... What is said at paragraph 104 [of Singh v Belgium] is rather in terms of a case where documents are at the heart of the request for protection where it would have been easy to check their authenticity as in that case with the UNHCR.
If the issue is whether an organisation such as UNHCR will authenticate a document, then it may well be possible to approach UNHCR directly. However, there may be cases where the Home Office, with the resources and status of government, has access to means of authentication that you cannot reasonably access. That may be one of the limited circumstances in which it may be appropriate to direct the Home Office to seek to authenticate a document.
The relationship between Tanveer Ahmed and Singh v Belgium has been considered by the Court of Appeal in PJ (Sri Lanka)  EWCA Civ 1011 and MA (Bangladesh)  EWCA Civ 175. In the latter case the Court summarised the correct approach to determining whether the Home Office was under any duty to make enquiries of its own as to the authenticity of a document:
PJ (Sri Lanka) permits an approach which is sequential in nature. In determining whether the circumstances of a particular case may necessitate an investigation, national authorities may first consider whether a disputed document is at the centre of the request for protection before proceeding to consider whether a simple process of inquiry will conclusively resolve its authenticity and reliability. If these conditions are satisfied it may be necessary for a national authority to make an enquiry to verify a document. It does not necessarily follow, however, that such a duty will arise; the judgment in PJ (Sri Lanka) makes clear that the evidence, including the documentary evidence, must be considered in its entirety. If the court or tribunal concludes that there was such a duty, it will proceed to consider whether it has been discharged and, if not, it must assess the consequences for the case.
The Court of Session in Mbuyi-Biuma (AP) v The Secretary of State for the Home Department  CSOH 93 applied the guidance in PJ (Sri Lanka) and MA (Bangladesh) to find that a duty to verify arose where the documents relied upon consisted of two letters with annexes written by a barrister practising in the country of origin. The Court said:
11. While a duty upon a national authority to verify documents founded upon by an applicant can only be said to arise exceptionally, that does not necessarily mean that exceptional circumstances in and of themselves require to be established before such a duty can be engaged in this way…
12…The documents founded upon by the petitioner and in respect of which she calls for verification by the respondent, plainly lie at the centre of her request for protection, and in view of the contact details and sources referred to therein in respect of the third party author of the letters, it appears to me that a simple process of enquiry would resolve any question of the reliability and authenticity of that source, namely the barrister himself.
The Court also placed weight, in addition to indicating that the documents contained bar registration and contact details for the author of the letters, on the fact that the Home Office had taken no challenge to the bona fides of the barrister himself.
16.26B In NA (UT rule 45: Singh v Belgium) Iran  UKUT 00205 (IAC), the Tribunal held (headnote) that:
Any direction given under rule 45 to the Secretary of State to seek out or validate evidence must be exercised sparingly and in a fact-sensitive way, bearing in mind CM (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 13. When considering whether to exercise its power under rule 45 to direct a party to produce evidence, the First-tier Tribunal should also be alert to its duty of impartial and independent adjudication and the essentially procedural nature of this rule.
The Tribunal said at para 15 that rule 45 of the 2005 Rules (the equivalent in the 2014 Rules is now rule 4 - see further Chapter 9) "depends rather for its true character, limits and efficacy on an appreciation of the limits on the obligation of the Secretary of State to seek out or validate evidence according to the fact-sensitive context of each case: see CM (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 1303 at  and ." The relevant passages of CM states that the Home Office's duty of due diligence "will require the Secretary of State to make specific enquiry inside or outside her own department where the need for that is prompted by material in her hands." (para 28)
16.27 There may be cases where other evidence before the Tribunal establishes beyond real doubt that the information contained in the document cannot represent the truth. It is not necessary in those circumstances for the Tribunal to make a specific finding on whether the document is forged or whether the proper source has given false information. However, it will normally have to assess the likelihood that one or other is the case in order to reach a safe conclusion as to whether the document can be relied upon.
16.27A In MT (Credibility assessment flawed - Virjon B applied) Syria  UKIAT 00307, the Tribunal said that when "documents appeared to be authentic, and one at least of them emanated from an apparently reliable source" a judge would require "proper intelligible and adequate reasons" for concluding that he was not prepared to rely upon them and "a bald reference to the starred determination of this Tribunal in Tanveer Ahmed ... was plainly insufficient for that purpose."
I accept that where an apparently genuine document is said to be a forgery, there will inevitably and in practice be an evidential burden on the Secretary of State to undermine the authenticity of the document. That accords with the general approach any court or tribunal will adopt to the resolution of such a factual issue.
16.28A In RP (proof of forgery) Nigeria  UKAIT 00086, the Tribunal held that
14. In judicial proceedings an allegation of forgery needs to be established to a high degree of proof, by the person making the allegation. This is therefore a matter on which the respondent bears the burden of proof. Immigration Judges decide cases on evidence, and in the absence of any concession by the appellant, an Immigration Judge is not entitled to find or assume that a document is a forgery, or to treat it as a forgery for the purposes of his determination, save on the basis of evidence before him...
15. It is right, of course, to say that a person involved with the detection of the forgery would not wish to broadcast the means by which he had been able to establish that a document was forged. But the state has, in immigration appeals, the rare privilege of being able to give evidence as to forgery in private. That privilege has existed since the Immigration Act 1971, and is presently contained in s108 of the 2002 Act...
17... given that the facilities under s108 are available, we should have thought that if a respondent chooses not to provide evidence enabling the Tribunal to decide for itself that a document is forged, the inference that no such evidence exists is almost inevitable...
See para 16.61 below for the s.108 procedure.
16.29 The appellant in Tanveer Ahmed  UKIAT 00439 did not submit any expert evidence to support the apparent reliability of the document. In Davila-Puga  EWCA Civ 931, Laws LJ pointed out that:
This is not a case, as sometimes happens, where the documents are essentially self-proving or are positively demonstrated to be authentic by reference to material, including expert evidence, that is independent of the appellant himself.
16.30 One can understand that an IJ faced with assessing the authenticity of a foreign document will feel more comfortable if he has some expert assistance. The benefits of expert authentication to the appellant are illustrated by the IAT's decision in Benaissa (15464):
The assessment of the validity and effect of foreign documents is, as we are aware from our own experience, a matter of the very gravest difficulty. We have confidence that the Adjudicator was doing his very best to reach a conclusion, fair to both parties, derived from the evidence before him and his own not inconsiderable experience. In our judgment, however, the Adjudicator's conclusions on the Appellant's age cannot be sustained on the basis of the evidence before him. We agree with Mr Cox's submissions that that evidence pointed wholly in one direction, which was that the documents adduced in support of the Appellant's case were genuine. It is true that the Adjudicator found the Appellant's oral evidence entirely unsatisfactory, but that factor does not of itself, we think, render the documents any more likely to be unreliable. The Adjudicator was presented with documents, accompanied by a report from an expert who, whilst admittedly not a document examiner, was a person who claimed to have, and, indeed, if we may say so, appears to have displayed, considerable knowledge of Algerian administrative and bureaucratic, as well as linguistic, practice. The Adjudicator, faced with documents which in our view were not obviously forged, and which were supported in such terms, should have been very slow to reject both the documents and the expert opinion.
16.30A In WM (DRC) v SSHD  EWCA Civ 1495, the Court of Appeal held that the Home Office had erred in concluding that an appeal had no prospect of success. Central to the appeal was a newspaper article which the Home Office did not accept as genuine. Buxton LJ observed that 'The newspaper article was supported by a report from an expert on Afghanistan, which said, not that it was genuine, but that based on his country knowledge the report and publication were of a type that could be genuine.' He concluded that the Home Office had to 'tread very carefully' in rejecting a realistic prospect that it was genuine when it was supported by this 'limited but nonetheless relevant evidence' (judgment, paras 25-26).
16.31 Your aim should be to produce evidence independent of your client's testimony which supports the reliability of the document. If you can obtain such evidence then you should at least succeed in placing an evidential burden upon the Home Office to show why the document should nevertheless be dismissed (see Mungu v SSHD  EWCA Civ 360 above). You will also be in a stronger position to seek a direction that the Home Office either accepts evidence or particularises why it remains in dispute. Unless the Home Office has accepted that a document is genuine, it will be open to the judge to reject the document for reasons of his own. However, unless the defect which he identifies is obvious, he will normally act unfairly if he does reject the document without raising his concerns. If a potential defect is obvious, you should deal with it in advance.
• by the means by which you obtained the document;
• by enquiries in the country of origin to verify the document;
• by expert evidence as to whether the document is authentic.
16.34 You should involve yourself as much as possible in obtaining documentary corroboration rather than leaving it to your client. The manner in which you have obtained a document may be the best evidence of its reliability. It may well rebut an allegation that the document was forged by your client or obtained by your client through bribery. The case will be further strengthened when the document was obtained through a local lawyer instructed by yourself, although the Court of Appeal has pointed out that the involvement of local lawyers does not create a rebuttable presumption of authenticity (PJ (Sri Lanka)  EWCA Civ 1011). If documents are obtained through a local lawyer, this may obviate the need which might otherwise arise to instruct a local lawyer to try to verify the document or provide an expert report on its authenticity. You must provide a full explanation of how the document was obtained, and ask any agent used by you to do the same. You may need to make a short witness statement to this effect.
16.35 If the document was not obtained through a prima facie reliable source, you may wish to try to instruct a local lawyer or NGO to make enquiries to try to verify it, e.g. through local court records. But see para 16.8 as to the difficulties in instructing a local lawyer. You will need to consider carefully what risks might arise from attempts to obtain such verification. As the Upper Tribunal cautioned in VT (Article 22 Procedures Directive - confidentiality) Sri Lanka  UKUT 00368 (IAC):
Anyone making an inquiry in the country of origin, whether on behalf of an appellant or the respondent, should be vigilant about the duty of confidentiality and the need to avoid risk. Careful consideration should be given to whether an inquiry is necessary, and if it is, whether it can be made in a way that complies with the principles of the Refugee Convention.
You will also want to avoid a situation in which a contact on the ground who lacks the global knowledge and expertise of a country expert forms an unsafe assumption that simply because he cannot find a document, it does not exist or that it is forged. The records offices and infrastructure of many refugee-producing countries, especially those subjected to years of civil war, will be highly likely to be missing documents or the means by which to locate them. Equally, there may well not be a system of centralisation in these countries, with the consequence that vital documents remain in provincial offices without the means to identify and verify them centrally.
16.36 If it is not practical or safe to seek to verify the document through local enquiries, you should make every effort to obtain expert evidence on its authenticity. The best source may still be a lawyer based in the country of origin, or else familiar with the type of documentation that your client has produced. Country experts, or human rights organisations active in the country of origin may be able to do a report. You may be able to find a suitable expert through the ILPA Directory of Experts, the Law Society Directory of Experts, and other such directories (see chapter 21). Lawyers in other fields may also know of experts in general document verification. Interpreters from the country of origin can sometimes assist with verification.
16.37 Where documentary evidence goes primarily to your client's contemporaneous state of mind, it may be relevant simply to show that the document would have appeared authentic to a person in your client's position so that it is understandable that she would have acted on it.
16.39 The Home Office approach to assessing documents is inconsistent. Sometimes, a HOPO will apply for an adjournment, arguing that it would not be safe to rely on a document until the Home Office had had an opportunity to 'authenticate' it. On other occasions, HOPOs will claim that the Home Office is incapable of investigating the authenticity of a document. Where the Home Office does make investigations, these may include comparing the document with similar documents in the possession of the Home Office and making enquiries in the country of origin. Sometimes, it will claim to have insufficient resources to investigate the document. Indeed, it has in the past issued Operational Guidance to its caseworkers in respect of at least one country to the effect that documents should not be verified because the Foreign Office charges for this service.
16.40 Where you have evidence which at least supports the apparent reliability of a document, you have stronger grounds to press the Home Office to indicate its reasons for alleging that the document is unreliable. If the Home Office declines to do so, you may seek a direction for further details (para 9.9). If it is suggested that the Home Office is under no obligation to disclose its views on a document, refer to the discussion at para 16.24 above.
16.40A As always you will need to consider the risks of pressing the Home Office for reasons. This may trigger further enquiries on its part. In recent years the Home Office has been more proactive about making enquiries in the country of origin. The potential risks for your client are serious. The Home Office may not always use appropriate caution in making its enquiries. In VT (Article 22 Procedures Directive - confidentiality) Sri Lanka  UKUT 00368 (IAC), the Upper Tribunal found that enquiries it had made to establish the authenticity of an arrest warrant by providing a copy to the Sri Lankan Terrorist Investigation Department ('TID'), with the name redacted but not the case reference number, were a breach of the duty of confidentiality under Article 22 of the Procedures Directive and could have increased the level of risk if the reference number had in fact been linked to a case against the appellant. The case also illustrates a second risk of which you will need to warn your client: the Tribunal found that the evidence obtained by the Home Office from the court substantially undermined the otherwise compelling documentary evidence obtained by the appellant's lawyers, such that it rejected his claim to be wanted by the TID despite what appeared to be a copy of the court's case file containing an arrest warrant.
16.41 Disclosure of the Home Office's case in advance obviously assists you in countering it. For example in one case, the Home Office disclosed that the reason why it had concluded that a warrant was a forgery was that it was completed by hand. An expert was able to state that it was unlikely that the magistrate who completed the warrant would have typed it. After six adjournments, all instigated by the Home Office, the appellant was successful ('Still no reason at all', Asylum Aid, 1999).
16.42 You also need to know whether it is contended that the proper source has provided false information (whether deliberately or mistakenly). You should seek expert evidence on the plausibility of any suggestion that your client could have persuaded the proper source to falsify the information (if there is no apparent reason why the source would present false information of its own accord).
16.43 Often, the Home Office's case will amount to little more than 'you can't trust foreign documents' (despite the fact that at other times, it criticises claimants for failing to produce such documents). This line of reasoning has even been accepted by IJs. In Singh (IAT) (9298), the adjudicator had stated that he placed no reliance upon the documentary corroboration because 'He had formed the opinion from his own experience of hearing appeals of this nature from the sub-continent over several years... that documentary evidence emanating from there was of little value'. The IAT unsurprisingly condemned this stance:
We regard that approach as quite wrong. The adjudicator should have considered the evidence and indicated, if he placed little reliance thereon, that he did so for some good reason and in the light of the evidence in this particular case.
16.44 Sometimes, the Home Office case descends to levels of acute absurdity. In one refusal letter, the Home Office claimed that no weight could be given to the newspaper articles submitted by the claimant because he was aware that a number of fake newspaper articles had been submitted in other cases (though he offered no evidence of this fact). The newspaper articles in question were from The Times' website. Since the Home Office could readily check these articles on the website, the allegation was presumably that the proper source had been persuaded to impart false information (see 16.26A above for the obligation on the Home Office to verify documents itself in some circumstances). Unsurprisingly, the Home Office was unable to explain how the appellant would have bribed or otherwise influenced The Times and its case was rejected. Sometimes, the greatest benefit in forcing the Home Office to disclose its case is to demonstrate its absurdity.
16.45 The importance of trying to obtain the original document (in the sense of the physical piece of paper originally issued by the proper source) rather than a copy made by someone else will depend upon any challenge to the document's reliability. If it is alleged that the document is a forgery, then it will depend on the grounds. If, as in the above example, the challenge is that it is handwritten rather than typed, it will be immaterial whether the document is an original or a copy. On the other hand, if the allegation relates to the type of paper used, then it will obviously be material to examine the physical document which was originally issued. If it is not contended that the document is a forgery, and the allegation is instead that the proper source published false information, questions of originals and copies will be of no relevance. It will be common, however, for the Home Office to claim that they will place no weight on documents where no original is submitted. You will need to explain to the Tribunal the absence of logic in such a blanket approach.
16.46 In the following discussion, the term 'original' is used to refer to the physical document that you or your client received (which may be the physical document issued by the proper source, an official copy, or a copy made by someone else, e.g. a local lawyer).
16.47 If the original was submitted to the Home Office in support of the initial asylum application, the Home Office probably still has it. If the authenticity of the document has not been accepted in the refusal letter, you may well want the original back if you are going to have it examined by an expert. Your requests to the Home Office may well go unanswered.
16.48 In Abadi (18078), the Home Office had retained the original of an arrest warrant which the IAT noted was 'an important part, if not the centrepiece of the appellant's case'. The appellant requested a legible copy in order to verify it. The Home Office provided only a partially legible copy and partial translation. It actually refused to return the original of the document. The IAT noted that:
It is clear that, at latest at the time of hearing before the Special Adjudicator, the appellant had a right to inspect the document of which the respondent had produced a copy in his bundle, and had a right also to make copies of the original document.
16.49 It stated that the failure to comply with the appellant's request for a fully legible copy and translation, together with the failure to make the original available to the Adjudicator represented a 'clear procedural irregularity, which... casts a shadow on the proceedings before the adjudicator'. It directed that:
the respondent supply to the appellant forthwith a legible copy of the document... together with a full translation of that document and that the original document be available at any further proceedings in respect of this appeal.
16.50 In that case, the appellant had only required a legible copy in order to obtain evidence as to authenticity. If your expert wants to see the original, the Home Office ought to return it. If it fails to do so, you should request a direction from the Tribunal that it either confirm that it accepts the authenticity of the document or else returns the original to you.
16.51 If you have obtained a document well before the hearing and are going to rely on it, it is worth sending a copy to the Home Office as soon as possible, together with a letter indicating that the original can be provided if necessary. There is no guarantee that anybody at the Home Office will look at the document until the HOPO prepares the appeal. However, by submitting it as soon as possible, you pre-empt any argument from the HOPO that the time following service of your trial bundle was insufficient for the Home Office to assess the document and take a view.
16.52 The original should be available to the judge who hears the appeal. In MK (duty to give reasons) Pakistan  UKUT 00641 (IAC), the Upper Tribunal found that the FTT judge had acted unfairly by refusing to even look at an original document which was tendered to him at the hearing. Some representatives put the original into the bundle that goes to the Home Office (if it has not already been submitted). It is better not to send the original to the Home Office unless it specifically requests it. The Home Office may lose it. Or it may not be represented at the hearing. In either case, it will be unavailable to the judge. The better course is to send a covering letter to the HOPO indicating that the original can be provided if he needs it in order to pursue his investigations. Consequently, the Tribunal's bundle should also contain a copy, rather than the original, with a covering letter indicating that the original will be made available at the hearing if the HOPO has not requested it in advance. Ensure there is a certified translation.
16.53 Always submit evidence as to how the document was obtained. If your client obtained it, she should explain how she did so in her witness statement. If you obtained it, you should prepare a witness statement explaining how it was done.
16.53A You will need to take instructions from your client on the document(s) you receive. Not uncommonly they will contain material which you do not entirely understand, which is extraneous to your client's case or appears illogical or even inconsistent with their instructions. Never simply include a document within a bundle without satisfying yourself that you know the answers to all the questions it raises. You will want to use your client's witness statement to explain any ostensible anomalies or oddities with the documentation. Equally, if you are using an expert witness, you may want to ask him to comment on any apparent discrepancies.
16.54 Make every effort to submit such documents at least in compliance with the standard directions. If you serve it within a week of the hearing, the HOPO may argue that it should either be excluded or that the Home Office should have an adjournment in order to assess the document. Contact the Home Office as soon as you have served the document to check that it has been received by the official who will consider it. If you are informed that no case owner will consider it and no HOPO has been allocated or the HOPO tells you that he has not yet started preparing the case, the HOPO will be in difficulty if he contends at the hearing that his lack of time to assess the document is your fault.
16.55 While you will resist any refusal to admit material documents, particularly if late submission was not your client's fault, it may be more difficult to resist an adjournment. If the Home Office does obtain an adjournment in order to assess a document, seek a direction that it notify you in advance of the next hearing if it disputes the reliability of the document, and if so on what grounds. If it raises alleged defects in the document only at the next hearing, that may necessitate a further adjournment. You would normally object where you have submitted the document in good time, and only at the hearing does the Home Office raise a challenge to the document which it could have raised earlier. At the very least, you should then be entitled to an adjournment in order to rebut the challenge. If you have asked the Home Office to provide objections in advance (and still more so if you have obtained a direction), you will be in a better position to argue that the Tribunal should not permit the late allegation.
16.56 Where the Home Office fails to disclose the evidence upon which it relies to dispute the document, it is of course open to you to apply for a witness summons in respect of the person who has made an allegation of forgery. This could require that he produce all evidence upon which he has relied. But see the s.108 procedure at para 16.61 below. Also, as indicated in chapter 9, if the Home Office has not presented its case properly, you should not necessarily try to force them to do so. It will often be sufficient and preferable to point out that the Home Office has provided no evidence whatsoever to support its allegations.
16.57 The HOPO may cross-examine your client about how a document was obtained and invite the Tribunal to draw adverse inferences from the answer. If the way in which the document was obtained could potentially be thought inconsistent with other parts of your case, you should address this in the witness statement. If the document was obtained by bribery, the HOPO will suggest that you cannot trust it because it was not obtained through normal channels. On the other hand, if it was obtained through normal channels, the HOPO will claim that normal channels would not have been available if the appellant was really wanted by the authorities. You can point out that this is one of the Home Office's 'damned if you do, damned if you don't' tactics.
16.58 If the HOPO pursues your client about how you or some other third party obtained a document, you should object that these are not questions that your client can address, and point the HOPO to the information which should be in your bundle.
16.59 It is another irony that on the one hand, documents relied upon by the appellant are regularly met with a bald allegation from the Home Office that you cannot trust documents from that country. However, if the foreign document is convenient to the Home Office's case against your client, it will disparage any suggestion that it could either be forged or contain incorrect information.
16.60 The most common example is where your client used false travel documents of another country in order to reach the UK. If that country is one to which the Home Office thinks it can expel your client more easily, it will often refuse to accept that the document is unreliable as evidence of your client's nationality. In those circumstances, you may need to obtain an expert report to indicate that the document is unreliable. It should be sufficient to show a real doubt that the disputed travel document establishes the appellant's nationality (see further 16.24A).
16.61 Section 108 of the 2002 Act states:
Forged document: proceedings in private
(1) This section applies where it is alleged -
(a) that a document relied on by a party to an appeal under section 82 is a forgery, and
(b) that disclosure to that party of a matter relating to the detection of the forgery would be contrary to the public interest.
(2) The Tribunal -
(a) must investigate the allegation in private, and
(b) may proceed in private so far as necessary to prevent disclosure of the matter referred to in subsection (1)(b).
16.62 The predecessor to this section (para 6 of sch 4 of the 1999 Act) applied this procedure only to travel documents, visas, certificates of entitlement, and work permits.
the class of document which may be relevant has been extended since many types of document may be submitted in evidence and these may rely on sophisticated technologies. The security features, ways of forging or defeating them and forgery detection methods should not normally be divulged to the public. (para 268)
16.64 But s.108 should not automatically preclude disclosure of 'a matter relating to the detection of the forgery' simply because the Home Office claims that disclosure would not be in the public interest. The judge should decide for himself whether the allegation that disclosure would be contrary to the public interest is made out. Section 108(2)(b) permits proceeding in private only 'so far as necessary' to prevent disclosure of a matter that would be contrary to the public interest.
16.65 The public interest itself must involve a balancing act between any detriment that the Home Office is able to establish would flow from disclosure, as compared with the obvious public interest in appeals being conducted according to the highest standards of fairness. Furthermore, s.108(2)(b) gives the judge a discretion to proceed in private, whereas the predecessor provision in the 1999 Act was mandatory. A discretion must be exercised with regard to all relevant factors, and the risk of unfairness through adopting this procedure ought to be one of those factors.
16.66 The judge must consider the Home Office's submissions on that point in the absence of the appellant. But that does not mean that he should not consider the appellant's submissions. The judge ought to entertain submissions from the appellant as to the importance of the document to the appellant's case and the prejudice resulting from exclusion.
16.67 If the judge decides that disclosure would be contrary to the public interest then he must allow the Home Office to present its evidence on forgery in the absence of the appellant. But once again, that does not mean that he cannot entertain evidence from the appellant on forgery, or that he decide the issue as soon as he has heard the Home Office's evidence.
16.68 In practice of course, the ability of the appellant to make submissions both on the public interest and the authenticity of the document is greatly impaired where he is not permitted to know the nature of the case against him.
16.68A In OA (Alleged forgery; section 108 procedure) Nigeria  UKAIT 00096, the Tribunal gave the following detailed guidance about dealing with application to proceed under s.108:
30. Immigration Judges must consider each request for the section 108 procedure to be invoked on its own merits.
31. Where an application is made under section 108 of the Act, then the Immigration Judge should explain to the appellant's representative that this means that the application will have to be heard in the absence of the appellant and the appellant's representatives. The Immigration Judge should then explain that before reaching his decision, he will bear in mind the importance of the general principle that all evidence considered by the Tribunal should be made available to both parties and that the section 108 procedure represents a departure from a very important principle. Any representations which representatives may wish to make should be heard by the Immigration Judge at this stage, although it will, understandably, be very difficult for the representative to make any meaningful representations without any knowledge of the basis of the application. The appellant's representatives should then be invited to withdraw from the hearing. The next part of the hearing should be taken in camera, on a provisional basis; at least until the Immigration Judge decides whether or not to accede to the request to involve the section 108 procedure.
32. During the proceedings which are held in camera, the Presenting Officer should be ready to identify precisely what documents the respondent contends are forged and the information or evidence which relates to the detection of the forgery which the respondent requests should be the subject of the section 108 procedure and should be withheld from the appellant and why disclosure of this matter to the appellant would be contrary to the public interest. A careful record of these proceedings should be taken by the Immigration Judge so that there can be judicial scrutiny of the process and of the Immigration Judge's decision on the application.
33. If, having heard submissions, an Immigration Judge decides to grant an application to invoke the section 108 procedure, he should say so in camera and again in public after reopening the hearing to the public. He should explain that he has decided to grant the application, because there was evidence about a matter or matters relating to the detection of forgery which it would be contrary to the public interest to disclose. The appellant should be told clearly which document or documents are the subject of the section 108 application. Immigration Judges should, at this stage, avoid reaching any concluded view as to whether the document in question is forged, because that should only be assessed after all the evidence has been given and submissions heard. It is, therefore, unlikely that an Immigration Judge would be able properly to form a view as to whether the documents are forged until after the hearing has concluded. The parties should be invited to address the Immigration Judge in the alternative.
34. In his written determination, the Immigration Judge should clearly explain that he has been requested by the respondent to invoke the section 108 procedure. Obviously it would be undesirable for the Immigration Judge to explain in the determination the nature of the evidence relied on by the respondent and which is the subject of the section 108 procedure and his reasons for granting the application. However, in order to ensure that the judge's consideration of the issue itself is subject to judicial scrutiny, the Immigration Judge should disclose as much as he feels properly able to do in the determination.
35. It is suggested that (either as an addendum to the Record of Proceedings, or as a separate part of it, clearly headed "The respondent's section 108 application - not to be disclosed") judges should describe fully the application made, the document or documents which are alleged to be forgeries, the precise matter or matters relating to the detection of forgery which is the subject of the section 108 procedure and the reason or reasons why the disclosure of the matter or matters to the appellant would be contrary to the public interest. The Immigration Judge should also explain whether this evidence was relevant to his overall decision on the appeal and, if so, to what extent.
36. It should be remembered that in all cases there does need to be clear evidence: if the respondent cannot, or for whatever reason does not, adduce evidence which can satisfy the higher standard applicable, then an application under section 108 will fail. If a report, for example, relies on something within a document adduced on behalf of an appellant, that would need to be proved by the giving of expert evidence, then it would be wrong for the Immigration Judge to assume that the forgery expert is an expert on other matters as well, apart from the detection of forged documents.
37. Immigration Judges must take care to ensure that the strength of the evidence on which the respondent seeks to rely, and which is the subject of the section 108 procedure, is not relied on in order to decide whether to grant the application. It may be that what the respondent seeks to withhold from the appellant is of such dubious reliability that it is unlikely to be of any great value in deciding whether the document relied on by the appellant is a forgery or not, but the respondent may still wish to avoid disclosure of material or information. For example, a particular informant might be unreliable or he or she may not be in a position to give evidence as to whether a document is forged or not. The respondent may, nonetheless, still wish to conceal the identity of the informant. Not to do so would deter other informants and in such cases an Immigration Judge would be entitled to grant the application to invoke the section 108 procedure to protect the information, whilst still proceeding to determine the appeal before him on the ground that the high standard which the respondent had to discharge, in order to prove the allegation of forgery, was not met.
38. If on the other hand, the Immigration Judge decides to refuse the application to invoke the section 108 procedure, then he should reopen the hearing to the public and announce his decision, for reasons to be given in his written determination. The appellant's representatives should then be made fully aware of the nature of the application and the basis upon which it was made before the hearing proceeds. All the material which was disclosed to the Immigration Judge during the closed session should then be disclosed to the appellant, unless the Home Office Presenting Officer seeks to withdraw his allegations (or part of them) in order to preserve the confidentiality. However, the mere fact that the material is not the subject of the section 108 procedure does not mean that it cannot be relied on by the respondent, nor does it mean that the value of the evidence is reduced. The fact that the section 108 procedure is not being used simply means that the public interest requirement in preventing disclosure is not satisfied. It does not mean anything else.
16.69 The provision applies only where the Home Office claims forgery. It cannot rely on it where it is submitting evidence to the effect that a travel document is genuine (see para 16.59 above).