Tribunal decisions

The decision

FZ (Fingerprint evidence) Afghanistan [2004] UKIAT 00304

IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 19 October 2004
Determination delivered orally at Hearing
Date Determination notified:

Before 19/11/2004
Mr C M G Ockelton (Deputy President)
Mr J J B Nicholson
Mrs D E Taylor

Between:

APPELLANT

and

Secretary of State for the Home Department
RESPONDENT

For the Appellant: Mr Shafiq of Molesworths Bright Clegg
For the Respondent: Miss L Singh, Home Office Presenting Officer

Fingerprint evidence produced by the Respondent should be assessed as part of the evidence in the case as a whole. It should not be taken in isolation. Not all fingerprint evidence is of equal weight.

DETERMINATION AND REASONS

1. The Appellant is a citizen of Afghanistan. He appeals, with permission, against the determination of an Adjudicator, Mr K S Levin, dismissing on asylum and human rights grounds his appeal against the decision of the Respondent on 13 May 2003 to give directions for his removal as an illegal entrant having refused asylum.

2. The basis of the Appellant’s claim was that he had suffered difficulties in Afghanistan amounting, in his view, to persecution from about the end of 2001 onwards. As a result of those difficulties, he travelled to Iran where he stayed for two or three days, and then travelled to the United Kingdom where he arrived illegally on 28 August 2002. That, as we say, was the basis of his claim as put and we should say at this point that, in elaboration of those facts, he emphasised that he had not previously left his own country.

3. When the matter came before the Adjudicator, there was produced at very short notice a certain amount of material on behalf of the Respondent which was said to demonstrate that the Appellant had indeed previously left Afghanistan and had in fact claimed asylum in Germany. On the production of that material, there was, we find, no application for an adjournment but the Appellant was specifically asked whether it was right to say that he had been in Germany previously. He positively denied it. The Adjudicator, in his determination, assessed the oral evidence before him and concluded that the Appellant had not been telling the truth.

4. The Adjudicator then went on to consider what the position would be if the Appellant’s story were indeed to be regarded as credible, and he found that in that case too the appeal would fail because, taking the Appellant’s story at its best, it was not one which demonstrated a well-founded fear of persecution for a Convention reason or any reason to show that, if returned to Afghanistan, the Appellant would be subject to treatment that would breach Article 2 or Article 3 of the European Convention on Human Rights.

5. The grounds of appeal to the Tribunal relate particularly to the way in which the Adjudicator dealt with the fingerprint evidence. At this point, we should indicate with some precision what that evidence was. It consisted of three pages and a covering letter. One page was a photocopy of the Appellant’s fingerprints as they were taken in the United Kingdom. A second page was a letter, apparently accompanying those fingerprints, with a request to the authorities in Germany asking whether the person who had those fingerprints was known in Germany. The third page is a form apparently filled in on behalf of the Germany Refugee Agency, indicating that the Appellant was a person who had arrived in Germany and applied for asylum on 30 August 2001, stating that his name was Fazel Jan and that his date of birth was 1 October 1971. That form was completed on 12 February 2003 and, as we have indicated, was produced to the Adjudicator only at the hearing which took place on 28 July 2003.

6. The Adjudicator clearly took that evidence very seriously. He mentioned it in paragraph 13 of his determination. He indicated there the reason why fingerprints are taken in many European countries and concluded, at the end of paragraph 13:

“In such circumstances, I am satisfied to the required standard of proof that the Appellant in this case applied for asylum in Germany on 30 August 2001 in the name of Fazel Jan and that his application for asylum in Germany was finished on 18 May 2002 and that his application was unsuccessful.”

7. Having reached that conclusion, the Adjudicator went on as follows:

“14. At the hearing before me the Appellant under cross-examination from the Respondent’s representative denied categorically that he had ever applied for asylum to Germany or for that matter that he had ever knowingly been to Germany. Under cross-examination, the Appellant maintained that he had never been out of Afghanistan prior to fleeing to the United Kingdom in August 2002. Moreover, the Appellant in his two Witness Statements and in his SEF interview makes no mention whatsoever of ever having been in Germany or of having made an application for asylum in that country. In the face of the fingerprint evidence from the Germany immigration authorities which I have already found to be reliable evidence, I reject the Appellant’s evidence that he has never been to Germany. I therefore reach the conclusion that the Appellant has deliberately lied to me in evidence. That finding inevitably taints the credibility of the whole of the Appellant’s evidence and it follows from that finding that I am unable to accept the credibility of his claim to have been targeted by both of the rival warlords in his home area and by their supporters.”

8. We are entirely persuaded that those two paragraphs of the Adjudicator’s determination reveal what we must categorise as a serious error of law in the assessment of the evidence that was before the Adjudicator. The Adjudicator had before him documentary and oral evidence adduced on behalf of the Appellant, some of which went to an assertion that the Appellant had not previously left Afghanistan. He had, on the other hand, documentary evidence produced by the Respondent which tended to assert that the Appellant had indeed previously left Afghanistan. In our view, it was quite wrong for the Adjudicator first to reach a conclusion on the credibility of the fingerprint evidence in isolation, and then view the Appellant’s evidence solely in the light of that conclusion. It is a trite observation that evidence needs to be assessed as a whole. The Adjudicator should, in our view, have balanced the evidence of the Appellant against the evidence of the Respondent and reached whatever conclusion he thought appropriate as a result of that balance.

9. This was a case where there was clear, direct oral evidence (whether true or not) on the one side, and what may be regarded as rather thin documentary evidence on the other side. We do not say that, in those circumstances, it would not have been proper for the Adjudicator to reach the view that he preferred the evidence adduced on behalf of the Respondent to that of the Appellant. But what is clear is that the weaker the evidence which the Respondent adduces, the more likely it is that an Adjudicator, undertaking a proper balancing process in deciding which evidence is worthy of credit and which is not, is going to rely on the evidence of an oral witness before him rather than that of documents.

10. In the present case, as we have indicated, there was no indication of an expert assessment of the fingerprints or their comparison. The Adjudicator did not have the advantage of seeing a photocopy of the fingerprints on the German database. Further material which Mrs Singh has shown us indicates that the evidence adduced from Germany may itself have been second-hand. We do not wish to lay down what fingerprint evidence should consist of. We only wish to emphasise that it is for Adjudicators to determine whether the evidence which is before them is sufficient to show what the Respondent asserts: that is to say, that there is no reasonable likelihood that the Appellant’s story is true.

11. For that reason, we agree that the Adjudicator’s assessment of credibility was seriously flawed. If the Adjudicator’s determination had depended on that assessment, we should have had no hesitation in remitting this appeal for rehearing. But, as we have indicated, the Adjudicator went on, very properly in our view, to consider what the position would be if the Appellant’s story were indeed the truth.

12. Mr Shafiq has urged us to take the view that the Adjudicator’s treatment of the fingerprint evidence and, in that context, his disdain of the oral evidence, should be regarded as infecting the whole of his determination with an apparent injustice. We have considered that ground most earnestly, but we are not persuaded that it is a proper basis for setting aside the determination in the present case.

13. The Adjudicator asserts that he is looking at the matter on the basis that the Appellant’s story is credible. He goes on to consider, in some detail, the objective evidence that was before him. Nothing that is before us today suggests that the views that he reached are views either that were not open to him, or that he would not have reached if he had not had the view that he did have about the Appellant’s credibility.

14. For those reasons, it appears to us that the Adjudicator’s judgement to the effect that even if the Appellant’s story were the truth he would have not succeeded in his claim is a judgement which must stand. For that reason, despite our very serious concerns about the process by which the Adjudicator reached his findings of credibility, we dismiss this appeal.

C M G OCKELTON
DEPUTY PRESIDENT