Authored By: MD Tajul Islam
The University of law
Case Title and Citation:
MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216
Court Name and Bench
Court: Court of Appeal (Civil Division), United Kingdom
Bench:
- Lord Justice Singh
- Lady Justice King
- Lord Justice Warby
This was a Division Bench of the Court of Appeal hearing an appeal from the Upper Tribunal (Immigration and Asylum Chamber).
Date of Judgment
28 February 2023
Parties Involved
Appellant: MAH (Egypt)
An Egyptian national who claimed asylum in the United Kingdom on the basis of a well-founded fear of persecution arising from his father’s imprisonment and perceived association with the Muslim Brotherhood.
Respondent: Secretary of State for the Home Department (SSHD) The UK government authority responsible for immigration control and asylum decisions.
Facts of the Case
The Appellant, MAH, is a national of Egypt born on 1 January 2001. He originates from Al Gazira Al Khadra in the Kafr El-Sheikh Governorate. MAH lived with his parents and siblings until his father’s arrest by the Egyptian authorities in 2014. His father, described as a pious man, was detained, tried, and sentenced to six years’ imprisonment. The Appellant believed that the arrest was linked to alleged involvement with the Muslim Brotherhood, although he did not have direct knowledge of his father’s political activities (MAH (Egypt) v SSHD [2023] EWCA Civ 216)..
MAH’s father was imprisoned in Liman 440 at the Wadi Al Natroun prison complex, a facility known for holding political prisoners, particularly those accused of Islamist affiliations. During the period before and after the arrest, MAH alleged that Egyptian authorities repeatedly raided the family home, searching for his father and later for MAH himself. These raids allegedly involved property destruction and intimidation, which is consistent with country background evidence on state practices during the post-2013 crackdown in Egypt (MAH (Egypt) v SSHD [2023] EWCA Civ 216).
In August 2015, when MAH was 14 years old, he fled Egypt due to fear that he would also be detained by the authorities. He travelled through Italy, France, and Belgium before arriving in the United Kingdom on 25 October 2016, where he claimed asylum shortly thereafter. As a minor, he was placed under the care of local authority social services.
While MAH was in the UK, his father’s health deteriorated in prison. He was hospitalised in April 2017 and died in custody on 26 April 2018. Documentary evidence confirming the father’s imprisonment and death was provided and accepted as reliable by the tribunals (MAH (Egypt) v SSHD [2023] EWCA Civ 216).
The Home Office refused MAH’s asylum claim on 10 December 2018. MAH appealed to the First-tier Tribunal (FTT), which initially accepted certain aspects of his claim, including the father’s imprisonment and death. However, following a complex procedural history involving the Upper Tribunal (UT), the appeal was re-determined by the UT in September 2021. Although the UT accepted significant factual elements, it ultimately dismissed the appeal on credibility grounds, concluding that MAH had failed to corroborate key aspects of his claim.
MAH appealed to the Court of Appeal, challenging the UT’s approach to credibility, corroboration, and the standard of proof applicable in asylum claims.
The Legal Issues Raised
The principal legal issues before the Court of Appeal were:
- Whether the Upper Tribunal applied the correct standard of proof in assessing MAH’s asylum claim.
- Whether the Upper Tribunal unlawfully required corroborative evidence when there is no legal duty on an asylum seeker to provide corroboration.
- Whether the Upper Tribunal’s adverse credibility findings were reasonably open on the evidence.
- Whether the Upper Tribunal properly assessed the evidence in the round, taking into account MAH’s age and country conditions.
- Whether the Upper Tribunal’s conclusion that MAH did not face a real risk of persecution was irrational or legally flawed.
Arguments of the Parties
Appellant’s Arguments
The Appellant argued that the UT committed material errors of law. First, it was submitted that although the UT repeatedly referred to the “lower standard of proof”, it failed to apply it in substance. Instead, the UT effectively required proof approaching the balance of probabilities, contrary to established asylum law.
Secondly, the Appellant contended that the UT imposed an unlawful requirement for corroboration. The UT criticised MAH for failing to obtain evidence from his father’s lawyer, human rights organisations, and family members, despite accepting that corroboration is not legally required. It was argued that this approach conflicted with Article 4(5) of the Qualification Directive and paragraph 339L of the Immigration Rules.
Thirdly, the Appellant argued that the UT failed to give proper weight to positive evidence already accepted, including documentary proof of the father’s imprisonment and death, expert country evidence, and the Appellant’s own testimony. When assessed under the correct standard of proof, this evidence established a reasonable degree of likelihood of persecution.
Finally, the Appellant submitted that the UT’s decision was irrational and that the only lawful outcome was to allow the asylum claim.
Respondent’s Arguments
The Secretary of State argued that the UT was entitled to make adverse credibility findings. It was submitted that the UT did not require corroboration as a matter of law but was entitled to draw adverse inferences from MAH’s failure to attempt to obtain evidence that was reasonably available.
The Respondent further contended that the UT had carefully assessed the evidence in the round, took account of MAH’s age, and applied the correct legal framework. As such, the UT’s conclusions were within the range of reasonable outcomes open to it.
Judgment
The Court of Appeal allowed the appeal. It set aside the decision of the Upper Tribunal and re-made the decision itself.
The Court held that MAH qualifies as a refugee under the Refugee Convention and allowed his asylum appeal. The Court declined to remit the matter back to the tribunal system, noting the prolonged procedural history and the fact that only one lawful outcome was available on the evidence.
Legal Reasoning
The Court of Appeal’s reasoning focused on three interrelated legal principles: the standard of proof in asylum cases, the role of corroborative evidence, and the proper assessment of credibility.
First, the Court reaffirmed that the standard of proof in asylum claims is a “reasonable degree of likelihood” or “real risk”, rather than the balance of probabilities. This principle originates from R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958 (HL) and was further developed in Karanakaran v Secretary of State for the Home Department [2000] 2 All ER 449 (CA). The Court held that the UT had erred by demanding a level of certainty inconsistent with this established test (MAH (Egypt) v SSHD [2023] EWCA Civ 216).
Secondly, the Court addressed the issue of corroboration. Referring to paragraph 339L of the Immigration Rules and Article 4(5) of the Qualification Directive, the Court confirmed that asylum seekers are not required to provide corroborative evidence. This reflects earlier authority such as Karanakaran and SB (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 160. The UT’s approach was therefore legally flawed because it treated the absence of corroboration as decisive against the Appellant (MAH (Egypt) v SSHD [2023] EWCA Civ 216).
Thirdly, the Court considered the proper approach to credibility. Drawing on KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10, the Court emphasised that credibility does not require a finding that the account is probably true. It is sufficient that the account is capable of being true and gives rise to a real risk of persecution. The UT’s finding that MAH was “not truthful” conflated lack of corroboration with dishonesty and failed to apply anxious scrutiny, contrary to principles set out in Bugdaycay v Secretary of State for the Home Department [1987] AC 514 (HL).
Applying these principles, the Court concluded that the accepted factual findings, combined with country background and expert evidence, established a real risk that MAH would face persecution on return to Egypt due to imputed political opinion arising from his father’s detention and death (MAH (Egypt) v SSHD [2023] EWCA Civ 216).
Conclusion
This case represents a significant reaffirmation of the core principles underpinning UK asylum law. It emphasises the necessity of applying the correct and consistently low standard of proof in asylum claims, namely the assessment of whether there is a real risk or reasonable degree of likelihood of persecution. The judgment also cautions against an excessive reliance on corroborative evidence, recognising that asylum seekers, particularly those fleeing repressive regimes, may be unable to obtain supporting documentation. This is especially important in cases involving vulnerable applicants, such as individuals who claimed asylum as children.
Furthermore, the Court of Appeal reaffirmed that credibility assessments must be conducted with anxious scrutiny, taking into account the applicant’s personal circumstances, age, and the broader country context. MAH (Egypt) v Secretary of State for the Home Department therefore serves as an important authority on the limits of adverse credibility findings and reinforces the protective purpose of the Refugee Convention, ensuring that its humanitarian objectives are not undermined by overly rigid evidential expectations.
Reference(S):
Bugdaycay v Secretary of State for the Home Department [1987] AC 514 (HL).
Karanakaran v Secretary of State for the Home Department [2000] 2 All ER 449 (CA).
KV (Sri Lanka) v Secretary of State for the Home Department [2019] UKSC 10, [2019] 1 WLR 1849.
MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216.
R v Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958 (HL).
SB (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 160.
Y v Secretary of State for the Home Department [2006] EWCA Civ 1223.
