Home Affairs CommitteeSupplementary written evidence submitted by Asylum Aid (ASY 02a)

I am taking up the opportunity you offered when I gave evidence at the Home Affairs Committee inquiry into asylum on 11 June to provide supplementary evidence. As my focus was on the importance of case owners using the correct standard of proof, I wanted to provide the legal references for this. A summary is below and I am also attaching an extract from UNHCR’s report on credibility. This has just been published so it provides up-to-date information on the case law regarding the standard of proof in the UK’s asylum system.

According to UK case law:

The standard of proof in the examination of all asylum claims is that of “reasonable degree of likelihood” or “real risk”. 49

The same standard of proof should be applied to the consideration of whether historical facts have occurred and whether there is a future risk of persecution.50

This is effectively a low standard of proof which operates for the benefit of the applicant.51

The Asylum Instruction on Considering the Protection (Asylum) Claim and Assessing Credibility which case owners are expected to comply with confirms this particularly in these two extracts:

“Evaluating whether an applicant is in need of international protection often requires decision-makers to decide whether they believe the applicant’s evidence about these past and present events and how much weight to attach to that evidence bearing in mind the low standard of proof required.”52

“The appropriate test for a decision maker to apply is to consider whether, at the date when they are making their decision, there is a reasonable degree of likelihood of the applicant being persecuted in their country of origin. The courts have said that a ‘reasonable degree of likelihood’ has the same meaning as the term ‘real risk.’53

The UNHCR Note on Burden and Standard of Proof in refugee Claims states the “standard of proof means the threshold to be met by the applicant in persuading the adjudicator as to the truth of his/her factual assertions.” It goes on to clarify: “In common law countries, the law of evidence relating to criminal prosecutions requires cases to be proved “beyond reasonable doubt”. In civil claims, the law does not require this high standard; rather the adjudicator has to decide the case on a “balance of probabilities”. Similarly in refugee claims, there is no necessity for the adjudicator to have to be fully convinced of the truth of each and every factual assertion made by the applicant. The adjudicator needs to decide if, based on the evidence provided as well as the veracity of the applicant’s statements, it is likely that the claim of that applicant is credible” and later states “persecution must be proved to be reasonably possible.” 54

I hope this information is useful to yourself and the committee and that you will come back to me should you have any questions.

Once again, I would like to thank you and the Committee for giving Asylum Aid the opportunity to give evidence at the inquiry.

Yours sincerely,

Debora Singer MBE

Policy and Research Manager
Asylum Aid

July 2013

Annex

EXTRACT FROM

BEYOND PROOF: CREDIBILITY ASSESSMENTS IN EU ASYLUM SYSTEMS MAY (UNHCR, 2013)

PAGES 239 – 241

http://www.unhcr.org/51a8a08a9.html

Jurisprudence and policy guidance in the UK confirms that decision-makers should adopt one approach to all applications. However, the issue has arisen before the courts in recent years over whether a ‘standard of proof’ applies to the establishment of facts, and if so which standard, or whether another approach should be taken.

The UK Immigration Appeal Tribunal rejected the proposition that facts should be established on the basis of the civil standard of ‘balance of probabilities’ because this would result in uncertain facts not being accepted and being excluded from the assessment of prospective risk, which, it concluded, could not be right.102 It held that the standard of proof of ‘reasonable degree of likelihood’, which applies to the determination of prospective risk, foresees a more positive role for uncertainty with regards to acceptance of facts. The tribunal emphasized that, therefore, uncertain facts should not be excluded from the ultimate evaluation of prospective risk.103 This judgement was thereafter understood to mean that the lower standard of proof, that of ‘reasonable degree of likelihood’, applied to both the assessment of past and present facts as well as to the assessment of future risk.104

However, the Court of Appeal subsequently opined that this constituted a misunderstanding of the true effect of the majority decision of the tribunal. It stated that the tribunal had not decided that one standard of proof applied to both stages of the determination.105 Instead, the Court of Appeal suggested that rather than applying a standard of proof to past and present facts, decision-makers should instead adopt a particular ‘approach’. It was explained that decision-makers are likely to encounter disparate pieces of evidence, which they must take into account.106 This includes:

• — evidence about which they are certain;
• — evidence they think is probably true;
• — evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true; and
• — evidence to which they are not willing to attach any credence at all.

The Court of Appeal noted that decision-makers should accept evidence in categories (1), (2), and (3).

In other words, decision-makers should accept all those material facts that may be possible, even if not probable:

“it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present). Similarly, if an applicant contends that relevant matters did not happen, the decision maker should not exclude the possibility that they did not happen (although believing that they probably did) unless it has no real doubt that they did in fact happen.”

This approach, as the Court acknowledged, reflects case law in Australia.107 In Australia, decision-makers should accept all asserted facts that are possibly true, as well as those that are probably or certainly true.108

“In other words, a proper application of the real chance test calls upon the decision-maker to take account of possibilities, even if these are considered unlikely.”109

The UK Court of Appeal was keen to differentiate this as an ‘approach’ and not to label it as the application of a ‘standard of proof ’.110 However, notwithstanding its own guidance, the Court subsequently referred to the ‘reasonable likelihood’ of the truth of past facts.111 Referring to this latter judgment, the UK Supreme Court summarized that “in relation to the standard of proof, it may be worth recording that the Court of Appeal stated that the applicants had to do no more than prove that there was a reasonable degree of likelihood that the past facts that they asserted […] were true.”112

The Supreme Court found that this was consistent with the approach adopted by the European Court of Human Rights.113 However, the Supreme Court also stated that adopting a standard of ‘balance of probabilities’ may also be consistent with the approach adopted by the European Court of Human Rights.114 The Supreme Court decided to proceed on the basis that ‘real possibility’,115 rather than balance of probabilities, was the correct ‘test’ to apply to the assessment of past and present facts, but considered that it should, on another occasion, decide authoritatively on this point.

The most recent UK policy guidance does not refer to the above-mentioned case of the Supreme Court but states:

“When considering what to accept or reject, decision makers will have to consider facts supported by evidence which will inspire varying degrees of confidence. As originally noted in the case of Kaja this will mean considering: [...] parts of the evidence which on any standard (i.e. up to and including the criminal court standard of proof: ‘beyond reasonable doubt’) were to be believed or not to be believed. Of other parts, the best that might be said of them was that they were more likely than not (i.e. the civil court standard of proof of – ‘probably true’). Of other parts it might be said that there was a doubt (i.e.the fact cannot be rejected as beyond reasonable doubt false, but cannot be accepted as either beyond reasonable doubt true or probably true). [...] It is clear that facts which are ‘beyond reasonable doubt’true and ‘probably’ true should be accepted, and facts which are ‘beyond reasonable doubt’ false should be rejected.”116

With regards to facts about which there is some doubt, the updated guidance refers to the case law that specifies that, unless completely disproved, evidence should be given some weight: “the case of Karanakaran established that decision makers should not ignore facts which were in doubt (or uncertain) but rather consider that: ‘everything capable of having a bearing has to be given the weight great or little, due to it’ (Lord Justice Sedley).”117

Other legal jurisdictions have endorsed the broad approach stipulated by the UK courts and policy guidance.118

References

102 Koyazia Kaja v Secretary of State for the Home Department [1994] UKIAT 11038, 10 June 1994. LJ Brook at p. 10 in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ. 11, 25 January 2000, 3 All E.R 449. However, it should be noted that there was a dissenting opinion expressed by R E Maddison to the effect that historical facts should not be accepted on a standard lower than balance of probabilities. Furthermore: “confusion is introduced by a disinclination to distinguish between the standard to be adopted for the assessment of facts relating to events in the past, which either did or did not occur, and the possibility of events occurring in the future, where obviously there is a wider area of uncertainty.”

103 Koyazia Kaja v Secretary of State for the Home Department [1994] UKIAT 11038, 10 June 1994: “The task of the adjudicator or the Secretary of State remains as in all cases – to assess the belief in the evidence with the ultimate evaluation in mind and to base that evaluation on the views of the evidence as a whole. We stress the need for an adjudicator in each determination to make it clear to the parties that the assessment of whether a claim to asylum is well founded is based on the evidence as a whole (going to past, present and future) and is according to the criterion of the reasonable degree of likelihood.”

104 Horvath v Secretary of State for the Home Department [1999] EWCA Civ 3026, which explained that this was the general understanding of the Kaja decision. However, it should be noted that in this case, the Court of Appeal, obiter, suggested that there was no reason why past or existing facts should not be established on the basis of the balance of probabilities, and then the prospective risk evaluated according to the ‘reasonable degree of likelihood’ test.

105 Karanakaran v Secretary of State for the Home Department, [2000] EWCA Civ. 11, 25 January 2000. Brook LJ at p. 10: “It isimportant to understand clearly the true effect of the majority decision in Kaja. They did not decide, as is suggested in one headnote ([1995] Imm AR 1) that: ‘the lower standard of proof set out in Sivakumaran applied both to the assessment of accounts of past events and the likelihood of persecution in the future.’ […] It appears, however, that whatever the majority of the tribunal actually decided in Kaja, their decision has been generally interpreted as meaning that decision makers are at liberty to substitute a lower standard of proof than that conventionally used in civil litigation when judges make findings about past and present facts.”

106 Karanakaran v Secretary of State for the Home Department, [2000] EWCA Civ. 11, 25 January 2000, p. 10.

107 Chan Yee Kin v MIEA (1989) HCA 62, 169 CLR 379 (9 December 1989); MIEA v Wu Shan Liang (1996) HCA 6, 185 CLR 259 (27 May 1996); MIEA v Guo Wei Rong (1997) HCA 22, 191 CLR 559 (13 June 1997); Abebe v Commonwealth (1999) HCA 14, 197 CLR 510 (14 April 1999); Rajalingam v MIMA (1999) FCA 719 (3 June 1999); MIMA v Epeabaka (1999) FCA 1 (6 January 1999). All these cases are cited in the Karanakaran judgment.

108 Rajalingam v MIMA (1999) FCA 719 (3 June 1999). The case, at para. 60, set out the principle that there may be circumstances in which a decision-maker must take into account the possibility that alleged past events occurred even though he or she finds that these events probably did not occur. The reason for this is that the ultimate question is whether the applicant has a real substantial basis for his or her fear of future persecution. The decision-maker must not foreclose reasonable speculation about the chances of the future hypothetical event occurring. Also, in para. 62, when the decisionmaker is uncertain whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a ‘real substantial basis’ for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker, even though the latter considers that the disputed event probably did occur.

109 A Glass, ‘Subjectivity and refugee fact-finding’, in J McAdam (ed.), Forced Migration, Human Rights and Security, Oxford: Hart Publishing, 2008.

110 Sedley LJ’s comments at para. 14, states explicitly that he does not accept that a prescribed standard of proof for historical and existing facts is requisite.

111 GM (Eritrea) and Ors v Secretary of State for the Home Department, [2008] EWCA Civ 833, 17 July 2008.

112 MA (Somalia) v Secretary of State for the Home Department, [2010] UKSC 49, 24 November 2010, at para. 18.

113 MA (Somalia) v Secretary of State for the Home Department, [2010] UKSC 49, 24 November 2010, at para. 19 cites para. 132 of Saadi v. Italy, no. 37201/06, ECtHR, 28 February 2008: “132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes … that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned”(emphasis added).

114 MA (Somalia) v Secretary of State for the Home Department, [2010] UKSC 49, 24 November 2010, at para. 20: “Nevertheless, the approach in Jonah and Horvath to the ascertainment of past facts may also be seen as consistent with the requirement for‘substantial grounds’ or ‘serious reasons’.”

115 The Court appears to equate ‘real possibility’ with ‘reasonable degree of likelihood’.

116 UKBA, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012, p. 13, para 4.2.

117 UKBA, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012, p. 13, para 4.2.

118 For example, the Irish High Court case of A. v Refugee Appeals Tribunal & Ors, [2011] IEHC 147, 8 April 2011. See also the earlier case R.K.S. v Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform, [2004] IEHC 436, 9 July

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Prepared 11th October 2013