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This report will deal with the issue of whether or not the list of credibility-damaging behaviour provided under Section 8 of Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 is justified and reasonable considering the manner in which asylum seekers travelled to the UK and behaved after arriving to the country.
The concerned authority will consider any behaviour (Section 8(1),) that involves concealing information, misleading, or obstruction or delaying handling, resolving, or taking a decision related to a claim (Section 8(2)). Such behaviour may be failing to produce a passport to an immigration officer without reasonable explanation; an invalid passport; destruction, disposal or alteration of a passport without any reasonable explanation passport or a ticket or document related to travel; and failing to provide an answer to a deciding authority without any reasonable explanation (Section 8(3).
This list of behaviour may also seem justifiable from a policy standpoint. However, this does not consider the circumstances of the asylum seekers, such as before they started travelling from their homeland or the struggle they have faced during the transit, which may provide some explanation behind such listed behaviour. This report will analyse the effectiveness of Section 8 in analysing credibility of asylum seeker and furnish findings about whether or not there is an alteration, modification or changes required in Section 8.
Robert Thomas (2006) has provided a well-rounded explanation about the use of credibility to assess an applicant’s claim for asylum. There is the subjective element test to decide whether or not the claimant has the fear of prosecution and the objective element test to decide whether or not there are reasonable grounds to believe that the fear is well founded. Only whether these two tests are passed that an asylum claimant could be considered as a refugee. The burden is on the applicant to prove the credibility of their claim. Finding credibility of a claim is given recognition by the UK Immigration Appeal Tribunal in the case of SW v Secretary of State for the Home Department (Adjudication’s questions) Somalia where a primary function of the case owner to further determine the factual correctness of a claim. It occupies the core function in an asylum process.
Section 8 intends to deter and reduce the scope for abuse. It aims to promote consistency in the treatment against those claimants that attempt to perpetrate it. Hence, Section 8 takes into account those bahaviour that the government considers damaging the credibility of a claimant. The purpose of this credibility-based assessment is to induce a co-operative environment where claimants can be opened about the information related with them while determining the claims. Section 8 sets out government’s reasonable expectation out of claimants requiring them to lodge their claims as soon they could.
The factor of credibility is predominant while making a determining whether or not an asylum seeker is to be believed regarding immigration and asylum decision. The burden of proof lies with the applicant. This very fact may shift the focus on the applicants to furnish necessary information and explanation to proof the credibility of their application or claim. The shift in focus could be found where although the Immigration Rules imposes a duty on the Secretary of State to assess asylum information of the application in co-operation with the applicants, there are a very few cases where there is actual communication between caseworkers and the applicant beyond the formal interviews and refusals.
The overemphasis on credibility in Section 8 has its unintended effects, such as being indifferent to the literacy level of a person or the age of the applicant, who may be a young person. This view has been pointed out by the Home Office where a young person may not be in a position to explain certain situation, such as their parent political activities or an illiterate person may not be able to explain the national political development. Even the UNHCR has pointed this aspect where a young person or a child could be made to prove their claims thereby highlighting failure of the Home Office to apply the benefit of doubt. The 2013 report by Amnesty International is a good example to highlight the errors in applying the credibility assessment related to asylum and immigration applications. This report highlighted a finding common in most of the UNHCR’s QI reports that is of the incorrect approach by the case owners while assessing credibility and establishing facts of claims. The case owners failed to give a benefit of the doubt; used speculative argument; relied on a single untrue statement to dismiss credibility of the claim; and failed to follow UK case law.
The effect of over-emphasising on credibility is that majority of the refusal of claim was based on wrong procedure or application of assessment rules regarding credibility. They are: 1) breaching Home Office’s credibility guidance; 2) unreasonable plausibility findings; 3) improper consideration of evidence; 4) using a small inconsistency to dismiss claims; 5) absence, improper or non-use of country-of-origin information; 6) making decision before substantially considering the claim; 7) improper consideration to a reasonable explanation; 8) misapplication of Section 8 - not considering mitigating circumstances such as age, education, trauma, mental health issues, fear or mistrust of authorities, and lack of detail or coherence in the evidence; or focusing on delay to refuse claims; 9) the domino effect where a decision based on one aspect of a claim undermines the other aspects; and 10) inappropriate conduct of interviews in the form of the interview conducted in an interrogative manner; interview conducted that is uncomfortably difficult interview for applicant; more than needed number of days to take the interview for example where there are about 436 questions; interview taken on two separate days; misconstruing words in applicant’s comments; interviews are not recorded; inappropriate use of information received in screening; or the use of absence or existence of evidence for determining a negative credibility finding.
Section 8 is subject to argument that if the list of behaviour it provides is read as direction to determine credibility, it poses the risk of not considering the credibility claim properly. This finds support in the opinion of Pill LJ in JT (Cameroon) v Secretary of State for the Home Department, that the listed behaviour should be considered while assessing damage to a claimant's credibility. This means that the list of conduct cannot be the criteria for assessing credibility of a claim. The conducts can also be used by refugees who are genuine and thus, the requirement may distract from the determination of the real question, for example the well-founded fear of persecution. As such, there cannot be a link between the listed behaviour arising from the fear of persecution and the truthfulness of the claim. This is an unreasonable evidential presumption. How Section 8 affects the decisions regarding claims is in the concept of credibility being treated as the main element to consider a claim. This distracts consideration of other statements that are not supported establishing non-application for benefit of doubt. Factual consideration may be the main policy consideration in regarding to asylum claims. However, it cannot be the only element to establish credibility. As seen earlier, there are other factors that must be considered and Section 8 listed behaviour should be considered and not solely relied upon.
The precedence given over credibility based on Section 8 listed conduct established that the behaviours are given more or sole priority than any other consideration. This is found in the 2015 Asylum Policy Instruction summary of Section 8. It cited courts opinions such as in the case of Karanakaran v Secretary of State for the Home Department where the Court of Appeal held that caseworkers must not ignore facts that are uncertain or in doubt and must consider all elements that have a bearing on the claim. The Asylum and Immigration Tribunal in SM (Section 8: Judge's process) Iran, ruled that the fact-finder, whether official or judge, should look at all the evidences as a whole to discharge the burden of proof. There may be doubt over some aspects of the evidence, which may also create a doubt on the other parts of the evidence or some evidence may establish. The case finders must decide evidences that are important or that may be less important while deciding a claim. Irrespective of considering the case law principles, the Asylum Policy Instruction also states that Section 8 list is not exhaustive and there are other ways where credibility could be undermined. This opens up the discretion of the case workers to have other credibility-assessment criteria other than those listed in Section 8 to determine credibility.
Section 8 conducts focus on how the applicants travelled to the UK and their behaviour after arrival. None of the conducts is directly related to persecutions that the applicants might have faced in the homeland. There might be situations where they furnish false documents out of fear of persecutions. Section 8 gives a broad meaning to credibility holding even delay in application or use of false passport is considered substantial facts. As a result, although Section 8 aims to prevent abuse of the asylum system, it provides for unreasonable evidential presumption. The lists of behaviour negatively impacts the overall general credibility.
The UN Refugee Convention of 1951, Article 1(1) provides for a ‘well-founded fear of persecution’ arising out of race, religion, political opinion, nationality or membership of a particular social group to validate the claim of asylum. To iterate, a claimant has to pass the two tests: the subjective test to determine the fear of prosecution and the objective test to determine reasonable grounds to believe that the fear is well founded. At this point it must be noted that the notion of credibility is distinct from that of the well-founded fear. It means that even when credibility is affirmed there may not be a well-founded fear and vice-versa. This is supported by the Court of Appeal ruling in Karanakaran, that a claim for asylum can succeed even where parts of the account of the claim are doubted. The principle of benefit of doubt is recognised by the European Court of Human Rights in FG v Sweden, that considered the special situation of asylum seekers requiring to extend the benefit of the doubt while assessing the credibility of and supporting documents of the claims.
Immigration practitioners may advance the argument that applicants has a legitimate interest claim especially in situation involving claimants who support armed opposition groups and who are involved in peaceful political opposition. This legitimate interest argument is based on the reasoning that the state authorities have declared the mentioned activities as illegal. However, state action against such activities may be argued by the Home Office as prosecution and not persecution, which gives a recognition to the state laws. However, Lord Bingham pointed out the link between state’s action and the fear of persecution in the case of Januzi v SSHD, Lord Bingham stated as follows:
“The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true.”
In Ismail Alan v. Switzerland, the UN Committee against Torture stated that a complete accuracy cannot be expected from victims of torture. This reiterates the observation made earlier that asylum seekers have experienced trauma and other mental stress and problem that affects their memory, causes fear and uncomfortable feeling towards the authorities. In such circumstances, asylum lawyers should argue based on a statement of a factual history to highlight this traumatic experiences and fear of the claimants. Thus, in Ismail, the counsel argued that even though Turkey kas ratified the Convention against Torture, its compliance tells a different story with cases of people disappearing in detention or lack of actions against perpetrators of torture. Thus, the determination should focused on whether or not there are substantial grounds to believe that a person would be expose to risk of torture in their homeland. It is the factual situation in a country that must be considered. Likewise, the asylum lawyer can rely on evidences necessary to persuade decision makers about the fear of persecution. The asylum lawyers can furnish medical-legal reports by medical practitioners who have been attending to an asylum seeker establishing the claimant was subject to tortured. The need to furnish medical evidence may mitigate the system of disbelief that runs in the entire process of asylum cases. For example, reports covering physical scars and psychic traces of trauma provide convincing arguments.
Asylum lawyers can use the human rights-approach to support arguments of asylum. The judiciary has recognised this approach to inform its decision regard refugee definition and the notion of persecution. For example, in Ravichandra v Secetarry of State for the Home Department, the Court of Appeal equated persecution with the risk of human rights violation in the form of arbitrary arrest or detention or denial of freedom of movement, association, opinion or privacy. The interference of human rights must be persistent and serious and not just occasional interference. The House of Lords also recognised the relevance of human right to asylum cases in case of Islam and Shah, where it confirmed the relevance of Refugee Convention (the Preamble) and the UDHR stressing the importance of fundamental rights and freedom that all human being must enjoy. In the case of Horvath v Secretary of State, for the Home Department, the House of Lords recognised the importance of human rights paradigm in asylum cases.
Asylum lawyers should place proper factual accounts of experiences undergone by claimants to establish legitimate interest. The core argument should be to establish a well-founded fear explaining the special situation of asylum seekers and arguing for receiving benefit of doubt. Necessary supporting documents should be furnished to proof trauma and experience of torture adopting a human right approach.
Section 8 as of now merely lists the type of conducts considered damaging the credibility of claims. It does not provide for the procedure and guideline of how to analyse and decide how to go about determining credibility. As a result, this Section has a negative connotation that shapes a decision makers’ mental frame to see claims from a negative perspective. The aim of preventing abuse of asylum system and the aim of creating a cooperative environment provided by Section 8 is self-conflicting. However, the former is given more weightage while assessing claim. This has been seen in case owners’ wrong application of Section 8 and relevant procedure.
Section 8 list is good to retained, but there must be proper regulatory guidelines for determining credibility. Such guidelines should stress on case owners and decision makers to focus on statements regarding experience of trauma or torture and other factual determination. This will create a system of understanding the situation of refugees and asylum seekers, which will automatically become easier to filter cases that are not genuine. This approach will enable the function of the case owner to determine the factual correctness of a claim. As such, Section 8 that directly and expressly focuses on deterrence or reduction of abuse will also give equal focus on building a cooperative environment. The lack of understanding asylum seekers condition or the refusal based on wrong procedure being followed could be avoided if only the actual communication between caseworkers and the applicant increases. Formal interviews will not be sufficient. The aim is to build better understanding of the asylum crisis and the experiences and struggles of applicants. This will make the of dealing with application better.
The guidelines should incorporate report findings from the 2013 report by Amnesty International adopting a better-balanced approach to assessing credibility where proper procedure and assessment rules are spelled out. The guidelines should categorised special cases that lack proper supporting documents to apply benefit of the doubt. It should lay out improper application of procedures that should be excluded from assessing a claim, for example speculative argument or using a single untrue statement to dismiss credibility. The guidelines should incorporate relevant applicable case laws, thereby covering principles related to legitimate interest and human rights paradigm. Thus, even when new conducts are recognised to assess a claim, these guidelines will serve as the principles regulation to determine a claim.
The major problem with Section 8 is that it has not considered the procedure related to the screening process and credibility assessment of a claim. Major discretion and decision-making power are left to case owner, who may not have the judicial mind to approach an asylum case. The list of conduct forces the decision maker to give primary weightage to the conduct without weighing the experiences and stories of the claimants. A social approach is lacking in Section 8 list, which over-emphasises on credibility left to the judgement of those who might have understand to the intensity required.
If the focus of Section 8 is a genuine claim, then the procedure to assess the claim must be first be to understand the situation of asylum seekers. Section 8 list seems to create a doubt-based approach rather than a benefit of doubt, legitimate interest and human right approach. The focus should be fact-sensitive assessment covering personal experiences and struggle together with regulatory guidelines governing decision makers.
Section 8 and the purpose that it aims is justifiable. Every country is justified in doing so. Asylum is a sensitive issue. On one hand, a country has to consider it national interest, in terms of its capability to take up the economic, social and political responsibility of new addition of population. On the other hand, a country has it international duty towards protecting and promoting the human rights of persons, from wherever there are. The problem consists of competing interests.
If I have to just limit my thought to the procedural aspect of Section 8. My first impression is that Section 8 list is justifiable. It presents a standard to be followed while assessing an asylum claim. This represents the aspect of national interest. However, when I research further, the apparent flaws that this report has found presents certain areas of improvement that Section 8 could bring a balance of the competing interest, between national interests and international duty. The list is not sufficient. There must be an associated guidelines that could help case owners and decision makers to determine a claim from a well-rounded perspective. The reason is the current framework is limited to conducts of asylum seekers. It out to go beyond that to touch upon the basis of the problem. The framework must provide for understanding the political situation of the homeland of the claimants and the claimants’ personal struggle and experiences.
The areas of improvement as pointed out in this report has triggered further need to directly communicating with the asylum seekers as well as the case owners to understand the whole system of asylum claim process. This understanding is not to understand the process, but the personal experiences of both the claimants and the decision makers. If the two sides of the story is understood, it will enable an informed judgement of legislative, regulative or administrative changes relevant with Section 8 and the relevant asylum claim framework.
Section 8 should not be repealed. It must be amended in the sense additional rules must be added for the proper use of Section 8. A thorough research is needed to understand the political objectives relevant with asylum claims. Only when they are clear and enforceable, can there be sufficient and proper change in the current legal regime. Analysing and suggesting reforms at the policy level that is separate from political objectives will not produce the desired result of handling asylum claims. However, as of now, the recommendation suggested above can bring some balance to the approach towards the claims and mitigate international issues, mostly relevant with human rights. There must not be pre-conceived notion about asylum cases. Each case must be approach in a well-founded manner touching upon experiences and struggles of asylum seekers and verifying documents and supporting claims. The issue is sensitive and I also feel doubtful to find an appropriate solution. This does not however mean that the suggest guidelines and areas of improvement pointed out in this report may not serve the desired purpose. Reports cited such as the one by Amnesty International have expressly pointed out the obvious correction that is needed related to Section 8. If that could be taken care of now, it will bring consistency in approaching claims.
F.G. v. Sweden, (2016) Application no. 43611/11
HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department  UKSC 31
Horvath v Secretary of State for the Home Department  1 AC 489
Ismail Alan v. Switzerland (1996) Communication No. 21/1995
Islam v Secretary of State for the Home Department; R v IAT, ex parte Shah  2 AC 629 (HL)
Jain v Secretary of State for the Home Department  Imm AR 76 (CA)
Januzi v SSHD  UKHL 5
Karanakaran v Secretary of State for the Home Department  EWCA Civ 11
Ravichandra v Secretary of State for the Home Department  Imm AR 97 (CA)
SM (Section 8: Judge's process) Iran  UKAIT 00116
SW v Secretary of State for the Home Department (Adjudication’s questions) Somalia  UKIAR00037
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