[2004] UKIAT 172
- Case title: AB (Reliance on photocopies)
- Appellant name: AB
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Congo Brazzaville
- Judges: Dr HH Storey, Ms L Freestone, Ms V S Street
- Keywords Reliance on photocopies
The decision
Heard at Field House
On the 23rd April 2004
AB (Reliance on photocopies) Republic of Congo (Brazzaville) [2004] UKIAT 00172
IMMIGRATION APPEAL TRIBUNAL
Date Determination Notified 11th June 2004
Before
DR H H STOREY (Vice President)
MS L A FREESTONE
MS V S STREET
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr L Alara, Solicitor of Benedict Charles and Co Solicitors
For the Respondent: Mr G Phillips, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This case is reported in order to clarify the position that arises when the Home Office accepts that it has lost original documents and the Appellant has to rely on photocopies.
2. The Appellant, a national of Republic of Congo (Brazzaville), appeals against the determination of an Adjudicator, Mrs C J Lloyd, who dismissed his appeal against the Respondent’s decision made on 13th February 2002.
3. The Appellant came to the United Kingdom (UK) on the 3rd November 2001. His claim can be summarised as follows.
4. He had been persecuted by Cobra, the special police force, because of his political activities and ethnic origin. He was arrested in October 1999 and detained for over a year in a military prison where he was tortured. He was released in January 2001. On his release he was required to report his party’s activities to the police, being an active supporter of the MCDDI (Congolese Movement for Democracy and Integral Development). He did not do this. On the 29th September 2001 representatives from Cobra came looking for him and, although he managed to avoid them, his brothers and sisters were beaten. He decided to leave the country immediately.
5. It was accepted by the Respondent that the Appellant may have belonged to the MCDDI as a low level member but it was not accepted he had been arrested, detained and ill-treated, nor was it accepted that there was a visit by military personnel to his home in September 2001.
6. The Adjudicator accepted that the Appellant was a member of the MCDDI but did not accept that he was detained, released and then sought again by the authorities who wanted to kill him.
7. On the basis of her adverse credibility findings the Adjudicator dismissed both the asylum appeal and the human rights appeal.
8. The Appellant appealed the decision on a number of grounds the majority of which were to do with the Adjudicator’s adverse credibility findings. Permission to appeal was granted on one ground only and that was in relation to the preliminary issue before the Adjudicator which was the non-production by the Home Office of original documents handed over when the Appellant made his original application. Only photocopies of those documents were on file. The appeal hearing before the Adjudicator had been adjourned on a previous occasion with directions that the Home Office should produce the original arrest warrant and release document, but those originals were not produced.
9. The one ground of appeal on which permission was granted stated that when the Home office either failed to bring original documents to court or had lost them, the Adjudicator should accept those documents as genuine. We have to decide in this particular case whether the approach taken by the Adjudicator in respect of the lack of original documents was flawed and unsustainable.
10. The Adjudicator considered the documents at paragraph 20 of her determination and compared the information contained within those documents to the rest of the Appellant’s evidence. She found that the information in the documents did “not correspond with his evidence in his statement”. She pointed out discrepancies between the dates contained within the documents compared with the Appellant’s account of his arrest and detention.
11. The Adjudicator then went on to make other adverse credibility findings and at paragraph 20(iii) said that “I do not consider that the arrest warrant and release order are genuine in the context of my overall credibility findings”.
12. The Adjudicator carefully considered the documents. She was careful not to make any findings on the authenticity by looking at them in isolation from all the other evidence. She treated, as she was entitled to do, the lack of original documents at court as a neutral factor and did not let it influence her findings. The Appellant has not been prejudiced in any way by the reliance on photocopies rather than the originals. Effectively the Adjudicator treated the secondary evidence in the form of photocopies as admissible to prove the contents of the missing primary evidence. As she has considered all the evidence before coming to a decision about the authenticity of those documents, we find that her approach was entirely in line with the case of Tanveer Ahmed [2002] UKIAT 00439 and that there was no error in her approach.
13. There may be cases when the loss of original documents could have a bearing on credibility findings particularly if an Appellant (or the Secretary of State) is not able to produce copies of those documents. There may be situations where an original may be verifiable in ways in which a copy is not, for example if the original contains a rare emboss confirmed by an expert. But this is not one of those situations. The Secretary of State, in his reasons for refusal letter at paragraph 11, was not prepared to accept the documents as “independent corroboration” of the Appellant’s claim “considering the ease with which such documents can be obtained”. The Appellant did not provide any evidence in rebuttal of this reason. We find that the Adjudicator was entitled to conclude that the documents were not genuine for the reasons that she gave.
14. The Appellant had provided originals of a driving licence and a MCDDI membership card to the Respondent. Neither of those originals were provided by the Home Office. However it was accepted both by the Respondent and the Adjudicator that the Appellant was a member of the MCDDI and we do not find that the Appellant was prejudiced by the non-production of the original membership card. We do not find that the non-production of an original driving licence takes the Appellant’s case any further.
15. In the Appellant’s grounds of appeal at paragraph 6 he claimed that the photocopies were poor and incomplete but it is clear the Adjudicator was able to obtain all the information there was from those photocopies.
16. We conclude that the Adjudicator gave sustainable reasons for concluding that the arrest warrant and release order were not genuine and that she was entitled to come to her adverse credibility findings.
17. Accordingly this appeal is dismissed.
Ms LA Freestone
Legal Member
25th April 2004
On the 23rd April 2004
AB (Reliance on photocopies) Republic of Congo (Brazzaville) [2004] UKIAT 00172
IMMIGRATION APPEAL TRIBUNAL
Date Determination Notified 11th June 2004
Before
DR H H STOREY (Vice President)
MS L A FREESTONE
MS V S STREET
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr L Alara, Solicitor of Benedict Charles and Co Solicitors
For the Respondent: Mr G Phillips, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This case is reported in order to clarify the position that arises when the Home Office accepts that it has lost original documents and the Appellant has to rely on photocopies.
2. The Appellant, a national of Republic of Congo (Brazzaville), appeals against the determination of an Adjudicator, Mrs C J Lloyd, who dismissed his appeal against the Respondent’s decision made on 13th February 2002.
3. The Appellant came to the United Kingdom (UK) on the 3rd November 2001. His claim can be summarised as follows.
4. He had been persecuted by Cobra, the special police force, because of his political activities and ethnic origin. He was arrested in October 1999 and detained for over a year in a military prison where he was tortured. He was released in January 2001. On his release he was required to report his party’s activities to the police, being an active supporter of the MCDDI (Congolese Movement for Democracy and Integral Development). He did not do this. On the 29th September 2001 representatives from Cobra came looking for him and, although he managed to avoid them, his brothers and sisters were beaten. He decided to leave the country immediately.
5. It was accepted by the Respondent that the Appellant may have belonged to the MCDDI as a low level member but it was not accepted he had been arrested, detained and ill-treated, nor was it accepted that there was a visit by military personnel to his home in September 2001.
6. The Adjudicator accepted that the Appellant was a member of the MCDDI but did not accept that he was detained, released and then sought again by the authorities who wanted to kill him.
7. On the basis of her adverse credibility findings the Adjudicator dismissed both the asylum appeal and the human rights appeal.
8. The Appellant appealed the decision on a number of grounds the majority of which were to do with the Adjudicator’s adverse credibility findings. Permission to appeal was granted on one ground only and that was in relation to the preliminary issue before the Adjudicator which was the non-production by the Home Office of original documents handed over when the Appellant made his original application. Only photocopies of those documents were on file. The appeal hearing before the Adjudicator had been adjourned on a previous occasion with directions that the Home Office should produce the original arrest warrant and release document, but those originals were not produced.
9. The one ground of appeal on which permission was granted stated that when the Home office either failed to bring original documents to court or had lost them, the Adjudicator should accept those documents as genuine. We have to decide in this particular case whether the approach taken by the Adjudicator in respect of the lack of original documents was flawed and unsustainable.
10. The Adjudicator considered the documents at paragraph 20 of her determination and compared the information contained within those documents to the rest of the Appellant’s evidence. She found that the information in the documents did “not correspond with his evidence in his statement”. She pointed out discrepancies between the dates contained within the documents compared with the Appellant’s account of his arrest and detention.
11. The Adjudicator then went on to make other adverse credibility findings and at paragraph 20(iii) said that “I do not consider that the arrest warrant and release order are genuine in the context of my overall credibility findings”.
12. The Adjudicator carefully considered the documents. She was careful not to make any findings on the authenticity by looking at them in isolation from all the other evidence. She treated, as she was entitled to do, the lack of original documents at court as a neutral factor and did not let it influence her findings. The Appellant has not been prejudiced in any way by the reliance on photocopies rather than the originals. Effectively the Adjudicator treated the secondary evidence in the form of photocopies as admissible to prove the contents of the missing primary evidence. As she has considered all the evidence before coming to a decision about the authenticity of those documents, we find that her approach was entirely in line with the case of Tanveer Ahmed [2002] UKIAT 00439 and that there was no error in her approach.
13. There may be cases when the loss of original documents could have a bearing on credibility findings particularly if an Appellant (or the Secretary of State) is not able to produce copies of those documents. There may be situations where an original may be verifiable in ways in which a copy is not, for example if the original contains a rare emboss confirmed by an expert. But this is not one of those situations. The Secretary of State, in his reasons for refusal letter at paragraph 11, was not prepared to accept the documents as “independent corroboration” of the Appellant’s claim “considering the ease with which such documents can be obtained”. The Appellant did not provide any evidence in rebuttal of this reason. We find that the Adjudicator was entitled to conclude that the documents were not genuine for the reasons that she gave.
14. The Appellant had provided originals of a driving licence and a MCDDI membership card to the Respondent. Neither of those originals were provided by the Home Office. However it was accepted both by the Respondent and the Adjudicator that the Appellant was a member of the MCDDI and we do not find that the Appellant was prejudiced by the non-production of the original membership card. We do not find that the non-production of an original driving licence takes the Appellant’s case any further.
15. In the Appellant’s grounds of appeal at paragraph 6 he claimed that the photocopies were poor and incomplete but it is clear the Adjudicator was able to obtain all the information there was from those photocopies.
16. We conclude that the Adjudicator gave sustainable reasons for concluding that the arrest warrant and release order were not genuine and that she was entitled to come to her adverse credibility findings.
17. Accordingly this appeal is dismissed.
Ms LA Freestone
Legal Member
25th April 2004