PJ v Secretary of State for the Home Department

The appellant and his wife and child are citizens of Sri Lanka. The appellant was permitted to enter this country on 14 September 2008 as a student (his visa was valid until January 2010). His wife joined him on 25 January 2009 as his dependent and the appellant applied for his student visa to be extended. This was granted for a period up to 23 July 2012. It appears that during this process the appellant was granted leave to remain as a Tier 1 (Post Study Work) Migrant. His wife returned to Sri Lanka on 19 October 2010 in order to give birth. The appellant’s wife and child then arrived together in this country on 16 November 2011.

On 3 April 2012, the appellant requested asylum. In essence, he suggested that if he returned to Sri Lanka he faced mistreatment because of the authorities’ perceptions as to his political opinions, based on the connection between members of his family (viz. his father, brother and sister) and the Liberation Tigers of Tamil Eelam (LTTE). He also claimed humanitarian protection because he apprehended he would be unlawfully killed or subjected to inhuman or degrading treatment or punishment if he returned to Sri Lanka. He asserted that his sister joined the LTTE in 1993 – specifically, a Black Tigers suicide squad – and was killed on 11 May 2006 by the Sri Lankan Navy. He suggested his brother was forcibly enlisted in the LTTE in 1996 and was killed on 24 September 1997. His father, although not a member of any political party, was said to have worked as a boatman for Colonel Soosai, who was the commander of the LTTE Black Sea Tiger Unit from its inception in 1992. The Sri Lankan Navy was said to have killed his father on 7 February 2000 during an engagement near Mullaitivu.

The appellant averred he was put under pressure to join the LTTE. He asserted he had been arrested by the Sri Lankan Police on 30 November 2007, along with three or four other men, because a bomb, which did not explode, was found at a railway station near the appellant’s home, (Footnote: ¹) and he was held overnight and released on 1 December 2007. He claimed he was beaten and pushed against a wall whilst in custody. He was released, and in due course he brought his release document to the United Kingdom. Although the appellant was not charged or bailed – indeed, he was not asked to report back to the police following his arrest – his case is that he fears that he will nonetheless be arrested by the army and the CID.

The appellant claims that on 30 December 2011 his mother was told by police officers that he was suspected of being in contact with the LTTE and that they were making enquiries about him. Shortly afterwards he made contact with a solicitor in Colombo, Mr Jayasinghe, with a view to getting advice as to what steps his mother should take. It is the appellant’s case that on 13 February 2012 the Sri Lankan authorities issued an arrest warrant for him and a letter was sent from a Magistrate to the Controller of Immigration and Emigration stipulating that the appellant is in the United Kingdom and that he should be taken into custody if he returns to Sri Lanka. One of the issues in the case is how he knew about the arrest warrant, given it was obtained after the police last spoke to his mother. However, the appellant said in interview that the information came from his United Kingdom solicitors on 16 February 2012 (the date the police searched for him at his home in Sri Lanka). Thereafter, on 29 February 2012 the appellant’s British solicitors wrote to Mr Jayasinghe asking him to obtain any documents relevant to the case. On 16 March 2012, Mr Jayasinghe made an application to the relevant court, and various papers were provided on 19 March 2012. Mr Jayasinghe wrote to the appellant’s British solicitors on 20 March 2012, enclosing a certified copy of a report and certain other documents that had been provided to the court by the police, together with a cash receipt for 30 rupees (the cost of obtaining the copy documents). The contents revealed that the authorities in Sri Lanka had linked the appellant with the 2007 bombing (they referred to a “bomb case” at Wellawatta railway station) and that he was to be arrested on arrival in Sri Lanka.

The appellant submitted a number of additional documents in support of his claim for asylum, including a photocopy of his father’s death certificate (it stated that Thuraisamy Pushparasa died on 7 February 2000 and the cause of death was “Death while the attack of Sri Lanka Navy” (sic)), a “receipt of arrest” dated 1 December 2007, an arrest warrant in his name dated 19 March 2012 and a letter from Mr Jayasinghe. The potential significance of some of this material is considered below, but in the letter dated 2 May 2012 refusing the appellant’s applications and giving directions for his removal, the Secretary of State decided that they did not advance the appellant’s case. In this regard, the Secretary of State relied on a letter from the British High Commission in Colombo dated 14 September 2010 which addressed the issue of forged and fraudulently obtained documents. The following was set out:

“The high level of corruption in Sri Lanka and the unscrupulous actions of government officials at all levels, somewhat undermines the issuing process for many official documents. It is common knowledge that persons can obtain an ID card or passport in any identity they want with the right contacts. The Visa Section at this mission regularly see forged education certificates, bank statements, employment references etc., yet they rarely see forged Sri Lankan passports or ID cards. The reason for this is that the genuine documents are so easy to obtain fraudulently, there is no need to forge them. It is suspected that there are many more ID cards in circulation than the actual total population of Sri Lanka.

Formally it is difficult for the accused to be able to obtain a copy of his/her own arrest warrant. When an arrest warrant is issued, a copy is kept on the legal file and the original is handed to the police. An accused cannot apply for copies of the arrest warrant to the relevant court. However, in practice forged documents are easily obtainable throughout Sri Lanka. Additionally given ongoing and well documented concerns over corruption in the police it would probably not prove difficult to obtain a copy of an arrest warrant, although it would probably require prior contacts within the police service.”

The appellant’s legal representatives acknowledged that it was frequently asserted by the United Kingdom Border Agency that documents from Sri Lanka are unreliable because of the opportunities that exist for obtaining forgeries, but they submitted there was sound provenance for these documents. However, the Secretary of State concluded that the ease with which it is possible to obtain forged documents outweighed the explanation provided by the appellant; she did not accept they are genuine; and accordingly they were treated as self-serving. Furthermore, the Secretary of State did not accept that the appellant’s father, brother or sister were killed in the circumstances set out above or that they had the roles the appellant claimed, and it was contended that these were all false representations that had been advanced to bolster the claim for asylum. The appellant’s account that he had been arrested and released was disbelieved, principally on the basis of certain internal inconsistencies. In the event, it was concluded that the appellant did not have a significant political profile and as a result he was not at risk of serious harm or mistreatment should he return to Sri Lanka. The Secretary of State did not accept that the appellant was liable to be arrested because of his record or pursuant to an extant arrest warrant.

In summary, the Secretary of State concluded:

“In careful consideration of all the evidence and jurisprudence, given that your claimed events and activities in Sri Lanka have not been believed, and that you have adduced no evidence that your profile is any greater than the many other Sri Lankan asylum seekers around the world, in consideration of all the risk factors both individually and cumulatively in your case, and given the comments of the Tribunal in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 it is not accepted that you will be perceived by the regime in Sri Lanka as an opponent, a risk to them, or of adverse interest on return to Sri Lanka. ”

The Secretary of State determined that he had not established a well-founded fear of persecution and therefore he did not qualify for asylum. Furthermore, the Secretary of State indicated that the appellant had not shown that he faced a real risk of suffering serious harm on return to Sri Lanka and that he did not qualify for humanitarian protection.

The appellants appealed against this decision to the First Tier Tribunal, and Judge Woodcraft heard the appeal on 11 June 2012. He delivered his decision on 25 July 2012. The appeal was principally based on the contention that the respondent should not have relied simply on the general availability of forged documents in Sri Lanka and, instead, focussed attention ought to have been given to the documents on which the appellant relied. Mr Martin, on behalf of the appellant, suggested that given they had been obtained and provided by two Sri Lankan lawyers (see below), to assert that they were forgeries was to challenge – without good cause – the honesty of those working within the Sri Lankan legal system. Mr Jayasinghe ([4] above), was unknown to the appellant and had been contacted by his United Kingdom solicitors. A cash receipt was provided in order to demonstrate that the papers had been obtained from the court. Moreover, once the respondent refused his claim for asylum, the appellant’s United Kingdom solicitors wrote on 9 May 2012 to a more senior Sri Lankan lawyer (Mr Weerasooriya) requesting that he repeat the process of ensuring that the relevant papers originally came from the court and were not forgeries. He was asked to provide another set of the relevant materials as a matter of urgency, including the “Magistrates’ Minutes” and the “Notification to the Controller of Immigration and Emigration dated 19 March 2012”. On 23 May 2012 Mr Weerasooriya replied, stating that his junior had obtained a complete, certified copy of the documents, which matched those produced by Mr Jayasinghe. For self-evident reasons, they now bore a rubber stamp from the Magistrates’ Court dated 23 May 2012 (as opposed to the 19 March 2012, the date when Mr Jayasinghe undertook this work).

Judge Woodcraft was clearly influenced by the delay on the part of the Sri Lankan authorities in pursuing the appellant, and he commented critically that the appellant had instructed two firms of solicitors in order to obtain the relevant documents. Moreover, the judge erroneously suggested that there was no “objective evidence” that Mr Jayasinghe was a member of the Sri Lankan Bar Association. The judge doubted the validity of the documents produced by Mr Weerasooriya because he had not personally obtained them and he suggested it was unclear whether he was “validating” the documents or merely indicating that someone else had obtained them. He observed that Mr Weerasooriya had not addressed the risk that false documents are widely and easily available in Sri Lanka, notwithstanding the absence of any request to Mr Weerasooriya to consider this issue. Mr Weerasooriya was criticised for not addressing Mr Jayasinghe’s status, which was an “important point” taken against the appellant, when it is to be observed this was not a matter that he had been invited to consider.

In his conclusions on the documents, Judge Woodcraft decided that they were unimpressive and that very little weight could be placed on them; indeed, at one point in the judgment he described them as being worthless and lacking in any validity. The judge considered that he had not been provided with a “proper” account of how they had come into existence, and he decided that the credibility of this material was undermined by the account from the appellant as to how he first discovered there was an arrest warrant. The judge relied on differences between the contents of the documents and the account of the appellant.

In addition to his adverse criticisms of the documents and the Sri Lankan lawyers who had obtained them, the judge described his concerns as to certain discrepancies and anomalies in the appellant’s account, and most particularly as regards the bomb: its location, the date of the incident, whether or not it had been detonated and the number of people arrested. Furthermore, the judge expressed scepticism as to why the appellant retained the 2007 release notification, and the circumstances in which Mr Jayasinghe discovered there was an arrest warrant or other court documents that required research. Judge Woodcraft stressed the appellant had been unable to explain – given the LTTE were defeated in 2009 – why the authorities developed what might be said to be an unexpected interest in him. Finally, the judge expressed his disbelief that members of the appellant’s close family had been involved in the LTTE, given the lack of credible evidence. In the result, the judge did not consider the appellant had a valid claim for protection as a refugee and he dismissed his appeal based on the claim for humanitarian protection.

The appellant appealed to the Upper Tribunal of the Immigration and Asylum Chamber. Upper Tribunal Judge Kekic heard the appeal on 28 November 2012 (the decision was promulgated on 20 December 2012). She observed that the appeal was focussed on Judge Woodcraft’s approach to the documents that had been obtained by the lawyers in Sri Lanka. The First Tier Tribunal judge was criticised for having doubted the professional standing of Mr Jayasinghe, and it was argued that since the same documents were obtained separately by two lawyers, “compelling reasons” needed to be provided if they were to be rejected as unreliable.

On this issue, Judge Kekic – whilst accepting that Judge Woodcraft had relied on a “mistaken” understanding of the Secretary of State’s position with regard to Mr Jayasinghe’s status – emphasised that he had relied on the inconsistencies between the contents of the documents and the account of the appellant. Judge Kekic described this as follows:

“6.

[…] [Judge Woodcraft] is entitled to expect that there should be agreement over whether there was a bomb explosion or whether the bomb was defused and did not go off, and also over whether the appellant was arrested with four friends or not. The vagueness in the police report over when the incident occurred is also of concern; the judge was entitled to find that one would expect this to be stated with certainty.”

Judge Woodcraft, it was stressed, had decided that the documents were unreliable and no weight could be placed on them, irrespective of whether they had been obtained by a lawyer. Indeed, Judge Kekic concluded that this approach applied notwithstanding the separate involvement of two Sri Lankan lawyers because “the difficulties identified by the judge in the documents remain and their production by a second lawyer does not resolve those issues”. Judge Kekic also focussed on the Secretary of State and Judge Woodcraft’s approach to the issue of whether there had been any relevant bomb explosion in the months close to when the appellant had been arrested, together with the scepticism that had been expressed as to the involvement of members of the appellant’s family with the LTTE and whether the authorities would have linked them with the appellant. In all the circumstances, Judge Kekic determined there had been no error of law that justified setting the decision of Judge Woodcraft aside, particularly when the judgment was read as a whole.

Permission to appeal to this court was granted on 16 October 2013 by Sir Stanley Burnton who concluded that although he did not consider an important point of principle or practice was raised, the possible consequences for an individual on return to Sri Lanka who is suspected of involvement in a bombing meant that there was a sufficiently compelling reason for the appeal to be heard. In the course of giving judgment, Sir Stanley observed:

“7.

But for the fact that the documents in question came from someone who was stated to be a lawyer in Sri Lanka, I would dismiss this appeal. It seems to me that both tribunals had adequate grounds to reject the documents as inconsistent with the story put forward by the appellant and therefore of no real assistance in determining whether or not his story was genuine or not. However, it seems to me that when the documents do come from a lawyer in Sri Lanka, who purports to confirm their genuineness and who effectively does say that the genuineness or not of the documents can be checked by the High Commission in Sri Lanka, it may be that a different approach to the documents was appropriate. The discrepancies between the documents and the story put forward by the applicant could conceivably, I say no more than that, be due to inaccuracies on the part of the police or the like. ”

Against that background, Mr Martin has based the appeal on the proposition that if the documents are genuine the appellant is a refugee. He emphasises that:

“Both lawyers produced copies of a court file obtained from the Magistrates’ Court in Colombo. The documents in that file included a report made by SSK Dharmaratne, Inspector at the Police Station in Colombo North, CID which stated that the Appellant had previously been arrested, that he was known to have three family members with close LTTE connections and that he was wanted for questioning “to decide whether he had been engaged in LTTE terrorist activities”. A further document on the file was a letter from the Magistrate to the Controller of Immigration and Emigration stating that the Appellant is in the UK and that he should be taken into custody on his return to Sri Lanka.”

Mr Martin argues that the First and Upper Tier judges approached this material incorrectly, and as regards Judge Woodcraft it is highlighted that the respondent had not questioned Mr Jayasinghe’s status as a lawyer. Furthermore, it is contended that neither judge sufficiently analysed the weight of Mr Weerasooriya’s evidence. Given his assistance had been sought by the appellant’s United Kingdom lawyers, it is suggested that there needed to be a reason of real substance in order to doubt the veracity of the documents obtained from the court. Both lawyers had provided evidence of their Bar Association membership and they were entered on the Supreme Court roll. Moreover, the British High Commission in Colombo provided confirmation, first, that Mr Weerasooriya is a lawyer in Sri Lanka and, second, that it is possible for lawyers to obtain court files. Critically, it is submitted that the risk of forgery greatly diminished if the documents came directly from the court.

Mr Martin suggests that, by way of general approach, the principle of judicial comity means that the courts in this country ought to treat documents emanating from a court in Sri Lanka in the same way as if a United Kingdom court or tribunal had produced them, provided they are obtained by, and transmitted between, United Kingdom and Sri Lankan lawyers. He argues that the high incidence of forged documents that originate in Sri Lanka should not affect the approach taken to documents that are demonstrated to have come from the courts in that country. Therefore, if it is credibly suggested that the materials in question originated from a court (having been secured and provided by lawyers), their authenticity should be investigated before they are treated as unreliable and, in the absence of a good reason for concluding they are forgeries, they are to be treated as authentic. Put otherwise, Mr Martin argues that there is a rebuttable presumption that documents obtained in this way by United Kingdom and Sri Lankan lawyers are reliable, albeit the presumption can be displaced by evidence or submissions from the Secretary of State.

In summary, therefore, the broad principle advanced on this appeal is that in circumstances such as the present case the burden shifts onto the Secretary of State to demonstrate that the documents are unreliable, and she bears the onus of contacting the lawyers concerned, their bar association and the relevant court in order to investigate – to the extent necessary – the credentials of the lawyers and the authenticity of the documents. Mr Martin submitted that this approach will always apply unless it is not feasible to carry out a suitable verification process.

In support of this broad contention Mr Martin referred to a number of decisions in which the question of whether it is desirable or obligatory for the state to verify documents in immigration and asylum cases has been considered. The starting point is the starred decision of Tanveer Ahmed (2002) Imm AR 318, in which case the Immigration Appeal Tribunal (Collins J, Mr Ockelton and Mr Moulden) decided that:

“35.

In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is a material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision maker should look at the evidence as a whole or in the round (which is the same thing).

36.

There is no obligation on the Home Office to make detailed enquiries about documents produced by individual claimants. Doubtless there are cost and logistical difficulties in the light of the number of documents submitted by many asylum claimants. In the absence of a particular reason on the facts of an individual case a decision by the Home Office not to make inquiries, 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. ”

Mr Martin stresses, therefore, that the Immigration Appeal Tribunal in Tanveer Ahmed did not preclude the need for the Secretary of State to make enquiries of the present kind if there was a “particular reason” to take this step.

In Singh and others v Belgium (33210/11) 2 October 2102, in a decision of the Second Section of the European Court of Human Rights (for which we only have the official French version and an unofficial English translation), the petitioners objected to their proposed deportation to Russia because they feared repatriation to Afghanistan, in breach of article 3 of the European Convention of Human Rights. During the proceedings in Belgium, the petitioners maintained they were Sikhs who had fled from Afghanistan in 1992. Their claim for refugee status was rejected by the Commissariat Général aux Réfugiés et aux Apatrides (CGRA) because they had failed to prove their Afghan nationality. In an appeal against that decision to the Conseil du Contentieux des Etrangers (CCE), the petitioners provided new documents, namely emails between their solicitor and a representative of the Belgian Committee for the Support of Refugees (a partner of the High Commission of the United Nations for Refugees (UNHCR)). The UNHCR representative in New Delhi had furnished, by way of attachments to the emails, “attestations” which indicated that the petitioners had been recorded as refugees under the UNHCR mandate and that one of them had requested naturalisation in India. However, notwithstanding this new documentation, the CCE similarly decided that the petitioners had failed to prove their Afghan nationality, and it determined that the new documents were to be treated as having no convincing value on the basis that they were of a type that were easy to falsify and it was said the petitioners had failed to provide the original copies of the relevant documents.

The ECHR observed that since the possible consequences for the petitioners were significant (viz. the risk of ill-treatment), the obligation of the state was to show that they had been as rigorous as possible and that they had carried out a careful “examination” of the grounds of appeal. In this regard, it is to be noted that at paragraph 103 of the definitive French version of the judgment the word used is “examen” as opposed to the word “investigation” that appears in the unofficial English version. Therefore, the obligation of the national authorities appears to be a careful “review” of – as opposed to an “investigation” into – the grounds of appeal. Nonetheless, on the facts of Singh the ECHR decided that since the documents were at the heart of the request for protection, rejecting them without “checking their authenticity” (“sans verifier préalablement leur authenticité”) [104] fell short of the careful and rigorous investigation expected of national authorities in order to protect the individuals concerned from torture, harm or inhuman or degrading treatment under Article 3 EHCR when a simple process of enquiry would have resolved conclusively whether they were authentic and reliable.

In MJ v The Secretary of State for the Home Department [2013] UKUT 00253, the Upper Tribunal (Immigration and Asylum Chamber) considered whether the ECHR decision in Singh was in conflict with the approach taken in Tanveer Ahmed. Upper Tribunal Judges Allen and Jordan observed as follows:

“50.

[…] It is relevant to consider (the decision in Tanveer Ahmed) in the context of what was said in Singh v Belgium. 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. Tanver 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. We do not think that (counsel) has entirely correctly characterised what was said in Singh in suggesting that in any case where evidence was verifiable there was an obligation on the decision maker to seek to verify. What is said at paragraph 104 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. […] We do not think that what is said in Singh v Belgium in any sense justifies or requires any departure from the guidance in Tanveer Ahmed which is binding on us and which we consider to remain entirely sound. ”

Against that background, Mr Martin submitted that the obligation on the Secretary of State was to check the authenticity of the disputed documents, given this exercise would have been relatively straightforward.

For the respondent, Mr Hall argues, first, that there is no special category of documents which are produced by lawyers that requires a discrete approach in the context of asylum cases; second, Singh v Belgium did not create a new proposition of law necessitating a different approach to documents of this kind; and, third, the judges in the lower and upper tribunals were entirely correct to reject the appellant’s case and to find that the documents were unreliable.

The respondent emphasises that there are a variety of practical difficulties that mean that it is unrealistic to impose a burden on the Secretary of State to undertake investigations of the type proposed. Local enquiries can put the family of the applicant at risk; the commitment of resources will frequently be onerous; and if the relevant state is potentially hostile to the applicant, the Secretary of State will be required to undertake covert activities without the consent of the relevant local authorities. Additionally, Mr Hall has stressed that unlike the situation in Singh v Belgium, in the present case the documents were not disregarded; instead, they were analysed and their weight was assessed. Overall, it is suggested that a sustainable decision was made and there is no basis for allowing this appeal.

In my judgment, there is no basis in domestic or ECHR jurisprudence for the general approach that Mr Martin submitted ought to be adopted whenever local lawyers obtain relevant documents from a domestic court, and thereafter transmit them directly to lawyers in the United Kingdom. The involvement of lawyers does not create the rebuttable presumption that the documents they produce in this situation are reliable. Instead, the jurisprudence referred to above does no more than indicate that the circumstances of particular cases may exceptionally necessitate an element of investigation by the national authorities, in order to provide effective protection against mistreatment under article 3 ECHR. It is important to stress, however, that this step will frequently not be feasible or it may be unjustified or disproportionate. In Tanveer Ahmed the court highlighted the cost and logistical difficulties that may be involved, for instance because of the number of documents submitted by some asylum claimants. The enquiries may put the applicant or his family at risk, they may be impossible to undertake because of the prevailing local situation or they may place the United Kingdom authorities in the difficult position of making covert local enquiries without the permission of the relevant authorities. Furthermore, given the uncertainties that frequently remain following attempts to establish the reliability of documents, if the outcome of any enquiry is likely to be inconclusive this is a highly relevant factor. As the court in Tanveer Ahmed observed, documents should not be viewed in isolation and the evidence needs to be considered in its entirety.

Therefore, simply because a relevant document is potentially capable of being verified does not mean that the national authorities have an obligation to take this step. Instead, it may be necessary to make an enquiry in order to verify the authenticity and reliability of a document – depending always on the particular facts of the case – when it is at the centre of the request for protection, and when a simple process of enquiry will conclusively resolve its authenticity and reliability (see Singh v Belgium [101] – [105]). I do not consider that there is any material difference in approach between the decisions in Tanveer Ahmed and Singh v Belgium, in that in the latter case the Strasbourg court simply addressed one of the exceptional situations when national authorities should undertake a process of verification.

In my view, the consequence of a decision that the national authorities are in breach of their obligations to undertake a proper process of verification is that the Secretary of State is unable thereafter to mount an argument challenging the authenticity of the relevant documents unless and until the breach is rectified by a proper enquiry. It follows that if a decision of the Secretary of State is overturned on appeal on this basis, absent a suitable investigation it will not open to her to suggest that the document or documents are forged or otherwise are not authentic.

Finally, in this context it is to be emphasised that the courts are not required to order the Secretary of State to investigate particular areas of evidence or otherwise to direct her enquiries. Instead, on an appeal from a decision of the Secretary of State it is for the court to decide whether there was an obligation on her to undertake particular enquiries, and if the court concludes this requirement existed, it will resolve whether the Secretary of State sustainably discharged her obligation (see NA (UT rule 45: Singh V Belgium) [2014] UKUT 00205 IAC). If court finds there was such an obligation and that it was not discharged, it must assess the consequences for the case.

Turning against that background to the facts of this case, Judge Woodcraft summarised the appellant’s case as follows:

“43.

What the Appellant relies heavily upon to support his account is that two lawyers in Sri Lanka have obtained the same set of documents at different dates which is said to confirm the adverse interest of the authorities in the Appellant. In effect the Appellant rests his case on what he says is the credibility of these Sri Lankan lawyers. […]”

The judge suggested that it was “significant” that the appellant’s solicitors felt it necessary to retain a second lawyer, and (as summarised earlier) he incorrectly observed that the Secretary of State did not accept that Mr Jayasinghe was a lawyer and he noted that no “objective” proof of his professional qualifications had been provided. The respondent accepts this was an error because no doubts had been raised as to the position of Mr Jayasinghe as a lawyer. However, Judge Woodcraft observed that “Mr Jayasinghe’s status was an important point taken against the Appellant and the validity of the documents produced” [43] and he observed that “if Mr Jayasinghe is not a genuine solicitor there is no reason why weight should be placed on any certificate he produces” [ibid].

This error contributed, to a significant extent, to the judge doubting the reliability of the evidence of Mr Weerasooriya. He criticised the latter’s failure to address Mr Jayasinghe’s status, suggesting that Mr Weerasooriya had failed to take the opportunity to address an “important point” when no such point had been raised. Furthermore, the judge noted that a junior employee from Mr Weerasooriya’s firm had obtained the documents from the court and he incorrectly stated “it is not clear from Mr Weerasooriya’s letter whether by saying that the documents can be checked he is in fact validating the documents or merely saying that someone else has obtained them”. The relevant letter addressed to the appellant’s solicitors in the United Kingdom, dated 23 May 2012, sets out: 

“This document is a true certified copy obtained from courts and the British High Commission or UK Border Agency could verify the authenticity of the document either from Modera Police or from Registrar Magistrate Court as this is a public document”.

It is clear, therefore, that Mr Weerasooriya was indicating that he was holding copies of the original court documents and he was asserting that their authenticity can readily be checked. (However, I note in passing that the Secretary of State is not bound to accept assertions of this kind, and, depending on the facts, it is open to her to challenge the contention that their authenticity can readily be demonstrated.)

Finally in this context, the judge was critical of Mr Weerasooriya for not addressing the issue of the wide availability of false documents in Sri Lanka; however, there is no suggestion that Mr Weerasooriya had been asked to express an opinion on this issue.

Judge Woodcraft thereafter engaged in a lengthy analysis of the documents, suggesting they were “not impressive”, they contained numerous mistakes and they fundamentally contradicted the appellant’s case [44].

In the result, Judge Woodcraft took what, in my view, was an unjustifiably critical view of the evidence of the two lawyers and the documents they produced. He concluded that “I do not consider that I have been given (a) proper account of how these documents have come into existence” [52], “I place no weight on these documents whether they were produced by someone purporting to be a Sri Lankan lawyer or from the office of someone else who is a Sri Lankan lawyer” [53] and “I have serious concerns about the documentation which has been produced in this case and do not accept the validity of any of the documents produced” [56].

Although Judge Kekic acknowledged that Judge Woodcraft had made an error concerning Mr Jayasinghe’s status, she adopted Judge Woodcraft’s analysis of the documents. She concluded that although two lawyers had obtained the same set of documents independently of one another “(t)he fact remains however that the difficulties identified by the judge in the documents remain and their production by a second lawyer does not resolve those issues” [10].

In my judgment, Judge Woodcraft doubted the validity of these documents (certainly, to a material extent) on a significantly false basis. Thereafter, Judge Kekic – having accepted Mr Jayasinghe’s status as a lawyer – failed to address the key issue that then arose, given the suggested source of these documents (a court in Sri Lanka) and the route by which they were obtained (two independent lawyers who sent them directly to the appellants’ solicitor in the United Kingdom). Whilst it is undoubtedly the case that false documents are widely available in Sri Lanka, once it was established that the documents in question originated from a Sri Lankan court, a sufficient justification was required for the conclusion that the appellant does not have a well-founded fear of persecution. Prima facie, this material reveals that the appellant has previously been arrested in connection with a bomb, three members of his family had close LTTE connections and he is wanted for questioning “to decide whether he had been engaged in LTTE terrorist activities”. But perhaps of greatest significance, there is a letter from the Magistrate of the relevant court to the Controller of Immigration and Emigration stating that the appellant is in the United Kingdom and that he is to be arrested on his return to Sri Lanka. In the absence of a sufficient reason for concluding otherwise, the inescapable conclusion to be drawn from this material – retrieved independently, it is to be stressed, by two lawyers from the Magistrates’ court on separate occasions – is that the appellant will be arrested on his return to Sri Lanka as a result of links with the LTTE and their activities. Judge Kekic suggested that the inference to be drawn from the evidence was that Mr Jayasinghe had “obtained false evidence” and that “the appellant had forgotten the account he had previously given when these falsified documents were prepared” [6]. However in my view, without an adequate explanation, it is difficult to understand how the appellant could have falsified a letter from the Magistrate of the relevant court to the Controller of Immigration and Emigration ordering the appellant’s arrest which he then placed in the court records so that it could later be retrieved by two separate lawyers. At the very least, this feature of the evidence required detailed analysis and explanation.

These documents lie at the centre of the application for protection, and I consider that Judge Kekic misdirected herself when she concluded that they had been falsely prepared, without providing any reasoning as to how the appellant could have infiltrated forged material into the court records, particularly since there is no suggestion that the lawyers had been involved in any discreditable conduct.

Accordingly, I would allow the appeal and remit the case to the Upper Tribunal for a rehearing.

I agree.

I also agree.