Self-Serving Statements
In R (on the application of SS) v Secretary of State for the Home Department (“self-serving” statements) [2017] UKUT 164 (IAC) heard before Upper Tribunal Judge Lane it was held that:
(1) The expression “self-serving” is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter written by a third party to an applicant for international protection may be “self-serving” because it bears the hallmarks of being written to order, in circumstances where the applicant’s case is that the letter was a spontaneous warning.
(2) Whilst a statement from a family member is capable of lending weight to a claim, the issue will be whether, looked at in the round, it does so in the particular case in question. Such a statement may, for instance, be incapable of saving a claim which, in all other respects, lacks credibility.
This case involved a citizen of Sri Lanka who challenged the Respondent’s decisions to treat his claim as a fresh asylum or human rights claim for the purposes of paragraph 353 of the Immigration Rules.
The first Judge hearing the appeal in February 2010 found that the Applicant came from a former LTTE stronghold and his father had assisted the LTTE, his brother had joined the LTTE and was killed in action and his sister was recruited. It was accepted that the Applicant had been detained. The Judge found the Applicant could relocate to Colombo.
The Applicant had later discovered that his brother had risen within the ranks of the LTTE and had been a personal bodyguard to the leader. The Applicant’s father had told the Applicant that the authorities had been enquiring after him. In December 2014 the Applicant’s family had received a letter from GOSL Intelligence Department, requiring them to surrender the Applicant. The family had in turn complained to the Human Rights Commission of Sri Lanka. The Applicant said his United Kingdom diaspora activities involved lifetime membership of the British Tamil Forum.
The Applicant had submitted a witness statement together with a letter from a lawyer in Sri Lanka. At paragraph 30 of the judgment: “The decision letter criticised the letter from the applicant’s father as being “self-serving”. The expression “self-serving” is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter from a third party may be “self-serving” because it bears the hallmarks of being written to order, in circumstances where the applicant’s case is that the letter was a spontaneous warning”.
This continues at paragraph 31: In the present case, the reasons given in the decision letter for the father’s letter being regarded as self-serving are because “it is from your father and does not demonstrate how you as an individual will face fear or persecution upon your return to Sri Lanka”. The first reason falls foul of the point made at paragraph 28 of AK, where the Court of Appeal criticised the respondent for stating that “an affidavit from a family member cannot add probative or corroborative weight to your client’s claim”. A statement from a family member is, of course, capable of bearing weight. The issue is whether, looked at in the round, it does so in the particular case in question. For instance, a statement from a family member may be incapable of saving a claim which, in all other respects, lacks credibility. Whilst the pressure on the respondent’s caseworkers can be great and their decision letters are not in any sense to be construed as if they were carefully-crafted pieces of legislation, I consider that this reason for the rejection of the father’s letter displays a lack of anxious scrutiny.
The Respondent’s decision of 18 September 2015 was quashed.
This case highlights the requirement for the most “anxious scrutiny” to be applied in all cases, in relation to all evidence, whatever the source and for full and proper reasoning. If a document is self serving it does not follow that it should be disregarded. The evidence must still be analysed, considered and the weight properly evaluated. The reliance on such evidence may not result in a claim which lacks credibility being granted, but at least no criticism can be levied against an Applicant for not addressing the issue and not providing such material.
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