UK Upper Tribunal ruling on the general duty of confidentiality during the asylum procedure

Wednesday, July 19, 2017

The UK Upper Tribunal (Immigration and Asylum Chamber) has recently published its decision in case VT v. Secretary of State for the Home Department, regarding the general duty of confidentiality by national authorities during the asylum procedure. The case concerned a Sri-Lankan national who reached the UK on a student visa and who applied for asylum in 2014. His application was refused on appeal by the First-Tier Tribunal. The applicant further appealed before the High Court against the findings that his account was not credible and that the documents he produced to support his application were unreliable.

First, the Upper Tribunal found that there is no general duty of inquiry upon the examiner to authenticate documents produced in support of a protection claim. It found that the general duty of confidentiality during the asylum procedure includes appellate and judicial review proceedings. If it is considered necessary to make an inquiry in the country of origin, authorities should first obtain the applicant’s written consent. The disclosure of confidential information without prior consent is only justified in limited and exceptional circumstances, such as combating terrorism.

Secondly, the Upper Tribunal recognised the humanitarian principle underpinning Article 22 of the Asylum Procedures Directive (APD), which prohibits direct contact with the alleged actor of persecution in the country of origin in a manner that might alert them to the likelihood that a protection claim has been made or in a manner that might place applicants or their family member in the country of origin at risk. It follows that anyone seeking to authenticate a document produced in support of a protection claim has to adopt a precautionary approach. An inquiry in the country of origin is only justified if it respects the principle of confidentiality, if there is no safer alternative and if it is carried out in an appropriate way, which must be assessed on a case by cases basis.

Finally, the Upper Tribunal rejected the appellant’s claim that the remedy for a breach of confidentiality under Article 22 APD is to grant refugee status. It found that it would undermine the purpose of the 1951 Refugee Convention if a breach of a procedural requirement would give rise to recognition as a refugee even if evidence shows that the person does not have a well-founded fear of being persecuted. However, a breach of confidentiality might be relevant to the overall assessment of the risk the applicant might face upon return. In the case of VT, it dismissed the applicant’s appeal since the documents provided by the applicant were considered unreliable.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



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