by Mark Henderson & Alison Pickup
Disputes about past facts: Discrepancies
Disputes about past facts: Allegations arising from other asylum claims
Disputes about Past Facts: Implausibility
Disputes about past facts: Lack of corroboration
Disputes about past facts: Timing of flight
Disputes about past facts: Choice of country of asylum
When the claim was lodged
Activities in Britain
Claims about country conditions and risk
Minimising past harm and present risk
Refugee Convention reason/exclusion/legitimate interest
Internal protection alternative
The Home Office's human rights analysis
Is that it?
1.1 The disturbing quality of many Home Office "reasons for refusal" letters has been highlighted in a series of reports by Asylum Aid (No Reason at All and Still No Reason At All).
Concern about the quality of Home Office refusal letters led to UNHCR embarking upon a major project to monitor and improve the quality of Home Office decision making based on the supervisory jurisdiction of the UNHCR pursuant to Article 35 of the Refugee Convention. UNHCR has identified 'systemic problems... both in individual decisions and in the context in which caseworkers operate' (UNHCR Quality Initiative Project, Second Report to the Minister, March 2006).
In its Second Report to the Minister, UNHCR said that
2.3.2 UNHCR's file assessment and feedback process suggests that some established caseworkers and a number of [senior caseworkers] may lack, or not be equipped with, the necessary skills and knowledge for refugee status determination. UNHCR has found widespread use of weak analysis, poor written English, and limited or non-existent research. The feedback sessions held with individual caseworkers lead UNHCR to conclude that a number of caseworkers have a limited interest in, and understanding of, global affairs.
Most seriously, UNHCR found that
2.3.5 The tendency to reject or disbelieve every aspect of an applicant's claim discussed above, besides being a reflection of a misapplication of the law, suggests that there may be a culture of refusal amongst caseworkers. This may lead to claims not being considered on their individual merits.
They concluded that
serious problems remain both in individual decisions and the context in which caseworkers operate. There is some evidence of a lack of understanding of key decision making concepts such as the shared duty to ascertain and evaluate all the relevant facts. A number of caseworkers apply the incorrect standard of proof and have unreasonable expectations as to the evidence the applicant can produce in support of his/her claim. Evidence that is produced is often not considered or not given the appropriate weight, or is rejected on weak grounds with the use of speculative or illogical arguments. Some caseworkers have a limited understanding of key refugee law concepts; for example, the nature of persecution, the Convention reasons and the principle of the benefit of the doubt are often misapplied.
Concerns about the assessment of credibility were repeated in the subsequent reports of the Project (published in January 2007, March 2008 and April 2009) and in the first report of the follow-up Quality Integration Project (August 2010). The second report of the Quality Integration Project (June 2013) focused on family claims and noted in particular a failure to gather information from family members of the main applicant which had a negative impact on the assessment of credibility since the opportunity to obtain supporting evidence was not taken. A report published by Asylum Aid in 2013 (Right First Time) based on workshops conducted with legal representatives and UKBA case owners in the London region found that "Poor decision-making persists because it is deeply rooted in a pervasive and profoundly adversarial 'culture of disbelief'."
The Tribunal has emphasised the importance to the effective operation of the appeal process of proper decision making at first instance. In Horvath v SSHD (17338)  Imm AR 121, it emphasised that:
the lack of skilled and professional care in reaching the initial decision necessarily places extra burdens on adjudicators. In this case,...(the adjudicator) was in effect having to reach a decision on the claim almost as if he were the original decision-maker. Some jurisdictions operate such a system, in Canada for example. But the UK has a different system, with the initial decision being taken by officials on behalf of the Secretary of State. It is incumbent upon these officials to give each and every case anxious scrutiny.
1.1A In Kabaghe (appeal from outside UK – fairness) Malawi  UKUT 00473 (IAC), the Upper Tribunal felt it necessary to make a number of observations at the end of its decision 'in the hope that the UKBA will be able to learn from the problems identified in this case' and referred the UKBA to the Administrative Justice and Tribunals Council's ('AJTC') report and recommendations Right First Time, June 2011. The 'key message' of that report was that:
...public bodies can save money and improve the quality of service by making fewer mistakes and learning more from those they do make. It must be better to get things right in the first place rather than having to put them right through expensive and stressful appeal and complaint processes (Executive Summary, para 1).
The AJTC had selected the UKBA as one of two case studies of public bodies which consistently did not get decisions 'right first time', as evidenced by the 27% success rate for immigration appeals in 2010, and had conducted a focused project working with UKBA Midlands and East region to improve its decision making.
The refusal letter... should, if possible, identify the matters in issue and should make clear (a) what facts (if any) are found in the applicant's favour, and (b) what matters (if any) are rejected as untrue. If the Secretary of State is saying in an asylum appeal that he does not need to decide on the truthfulness of the appellant's account because, even if the account is true, any fear is not well-founded, that should be made clear. In order to avoid misunderstanding, the Secretary of State should make clear if he disbelieves an applicant when he says that he left his country because of fear. We strongly suggest that the use of the words 'credible' or 'credibility' should be avoided. If the Secretary of State believes that an applicant is not telling the truth either generally or about particular matters, he should say so. If he is prepared to assume the truth of the account given but rejects the claim because the alleged fear is not well-founded, he should say that that is his view. To describe such a claim as 'not credible' is to misuse the English language. (Carcabuk & Bla v SSHD (00/TH/01426))
1.3 Unfortunately, many refusal letters fail to comply with these requirements. The Home Office's guiding principle is more often to 'dispute everything' as 'not credible', often over several pages. A clear statement of issues that the Home Office does not feel able to dispute has historically been rare. This practice substantially increases the cost and complexity of appeals. There have however been some recent improvements, and most refusal letters now set out accepted facts (usually limited to the applicant's identity and, sometimes, nationality), but go on to heavily dispute the substance of the claim.
1.4 A significant part of the refusal letter often consists of allegations of 'discrepancies' based on a minute analysis of the claimant's testimony in the Home Office interviews and her statement. Many such allegations can be shown to be unfounded but all require rebuttal.
1.5 An even larger part may be devoted to assertions of 'implausibility'. The proposition that protection should be refused to those whose persecutors behaved illogically, surprisingly or bizarrely might itself appear bizarre to us. In fact we might expect to be surprised by their behaviour. Neither might we wish to refuse protection to victims of persecution, simply because we think that we would have behaved differently. However, the Home Office commonly rejects claims on this basis. It will urge the IJ to conclude that the sensible persecutor or sensible victim would have done things differently. In Y v SSHD  EWCA Civ 1223 Keene LJ stated that
The fundamental [legal principle applicable to the approach that an IJ should adopt towards issues of credibility] is that he should be cautious before finding an account to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible, and those views will have inevitably been influenced by his own background in this country and by the customs and ways of our own society. It is therefore important that he should seek to view an appellant's account of events, as Mr Singh rightly argues, in the context of conditions in the country from which the appellant comes. The dangers were well described in an article by Sir Thomas Bingham, as he then was, in 1985 in a passage quoted by the IAT in Kasolo v SSHD (13190), the passage being taken from an article in Current Legal Problems. Sir Thomas Bingham said this:
An English judge may have, or think he has, a shrewd idea of how a Lloyds Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ships' engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he would have done or even - which may be quite different - in accordance with his concept of what a reasonable man would have done.
1.6 But the Home Office claims to have a 'shrewd idea' about the reactions of the reasonable sadistic secret policeman, the reasonable corrupt prison guard, and the reasonable 'genuine refugee'. You will find that the behaviour of the 'genuine refugee' tends to vary from case to case so as to create a 'damned if you do, damned if you don't' effect.
1.7 That, of course, is before one even reaches the question of whether the claimant's fears are presently well-founded. This will also be the subject of detailed claims about present human rights conditions in the country of origin. These will bear a varying relationship to reality. Some will consist of standard assertions dropped, word for word, into every refusal letter issued in respect of your client's country of origin. Legal arguments will also be advanced, again of varying validity. You need to be able to differentiate between those allegations that could damage you in the absence of rebuttal, and those that are legal or factual nonsense.
2.4.14 UNHCR observes that Home Office decision makers rely heavily on standard paragraphs, both country-specific or on various legal principles. Where officially approved, individually tailored and kept up to date, UNHCR accepts these can be a useful tool in drafting decisions. However, UNHCR has found that caseworkers often use such paragraphs inappropriately and frequently do not tailor them to the facts of the claim before them. It has been noted that many standard paragraphs that are clearly either out of date or inaccurate continue to be relied upon.
2.4.15 Furthermore, UNHCR having communicated its concern that rogue standard paragraphs are circulated amongst caseworkers, the problem has been acknowledged by the ACD. These paragraphs will not have been approved by the appropriate senior staff and are frequently inaccurate on points of law or fact. UNHCR has also noted that paragraphs circulated by SCWs on an individual or collective basis are frequently stored by caseworkers and reused regardless of whether the paragraph in question is still appropriate.
1.7B Although UNHCR noted some improvements in early decisions produced under the Home Office's New Asylum Model (NAM), they found that the problems identified in the first three reports persisted in the early stages of the New Asylum Model (NAM) (see para 1.11 below). In their Fourth Report which focused on NAM, they said that although they had observed some good practice, UNHCR's initial audit does suggest that the assessment of credibility and establishing the facts of an asylum claim is a problem area for a significant proportion of NAM decision makers. It remains the aspect of asylum decision making that is most frequently considered to be flawed on the basis of UNHCR's assessments:
2.2.7 UNHCR's reviews have highlighted decisions where adverse credibility findings are made without linking these to establishing the facts of the claim indicating a lack of understanding of the 'role' of credibility and the difference between the 'credibility' of facts asserted by the applicant, and the credibility of the applicant overall or as a person. Indeed, it is not uncommon for an entire claim to be disbelieved, leaving no 'facts' to apply the refugee and ECHR criteria to. UNHCR has also observed a significant proportion of both grants and refusals which lack clear findings, making it difficult to identify on what basis the decision has been made. It remains relatively rare for aspects of a claim that are accepted to be identified, including where these would make a claim stand or fall or where it is important to establish the 'profile' of the applicant to enable an assessment of whether an internal flight alternative is reasonable, for example.
2.2.8 A number of decisions also demonstrate confusion between establishing the facts and, having done so, assessing future risk in light of the refugee and ECHR criteria. UNHCR has also observed a number of cases which do not focus on or do not give due consideration to all the material facts of the claim (i.e. those that are central to the decision on whether or not the claim meets the refugee or ECHR criteria). UNHCR has also observed the use of poor reasoning in both grants and refusals of protection, including the continued use of speculative arguments which attempt to guess the thought process of a third party or do not rely on objective country of origin information (COI).
1.8 This section deals with the initial analysis of the refusal letter - the start of the appeal preparation - and tactics for dealing with some of the commonest allegations. It can be no substitute, however, for a sound knowledge of asylum and human rights law.
1.9 Get your client in as soon as possible to obtain her instructions and comments on the refusal letter. The allegations and assertions it contains may appear even more bizarre to your client, and you will have to explain that she is not being singled out for this treatment.
1.10 The initial application to the Home Office is outside the scope of this guide [see Making an Asylum Application: A best practice guide (ILPA, 2002)]. Whoever represented your client should have checked the Home Office interview record with her for accuracy (essential now that the Home Office refuses to read its notes back at the end of the interview: see para 36.20). Any necessary representations on accuracy and omissions should then have been advanced to the Home Office. If this has not happened, you should go through the interview notes with her as soon as possible. If any issues arise about their accuracy, a dated statement should be taken. The Home Office is required to tape asylum interviews on request unless the claimant was represented or entitled to publicly funded representation. If your client disputes the accuracy of the interview or if the interview notes otherwise give cause for concern, it will be necessary to listen to the relevant parts of the tape. (See chapter 13 Presenting previously undisclosed information) Always check the summary of your client's claim in the refusal letter (which is sometimes inaccurate and/or misleading) against the statements and interview records which were before the Home Office.
1.11 The Home Office has adopted a variety of procedures for its initial decision on asylum claims in recent years. It continues to alter these regularly. Asylum seekers who lodged their claims after 1st April 2007 (and a small number who lodged claims at an earlier date) were dealt with by the Home Office's New Asylum Model (NAM), and then by Local Immigration Teams ('LITs'). In 2012-2013 there was further restructuring into a new national structure comprising ten non-detained caseworking units in Cardiff, Folkestone, Croydon, London, Cardiff, Solihull, Liverpool, Leeds, Newcastle, Glasgow and Belfast. This restructuring signalled a formal move away from the NAM process under which a single case owner was supposed to have responsibility for dealing with a case from start to finish, with decision making now being devolved to lower grade Executive Officers and only 'complex' cases being considered by Higher Executive Officers. By the end of 2013 a significant new 'backlog' of 13,628 cases awaiting an initial decision had built up.
1.11A The first stage of the process will be the screening interview. The Home Office may rely on 'discrepancies' in information given at the screening interview as well as that provided subsequently. It is thus important for any mistakes in the screening interview record to be pointed out to the case owner at or before the substantive interview. In JA (Afghanistan) v SSHD  EWCA Civ 450, Moore-Bick LJ pointed out the potential for unfairness in relying on apparent discrepancies between a screening interview record and subsequent evidence:
That is particularly important when considering the significance to be attached to answers given in the course of an interview and recorded only by the person asking questions on behalf of the Secretary of State. Such evidence may be entirely reliable, but there is obviously room for mistakes and misunderstandings, even when the person being questioned speaks English fluently. The possibility of error becomes greater when the person being interviewed requires the services of an interpreter, particularly if the interpreter is not physically present. It becomes greater still if the person being interviewed is vulnerable by reason of age or infirmity. The written word acquires a degree of certainty which the spoken word may not command. The "anxious scrutiny" which all claimants for asylum are entitled to expect begins with a careful consideration of the weight that should properly be attached to answers given in their interviews. In the present case the decision-maker would need to bear in mind the age and background of the applicant, his limited command of English and the circumstances under which the initial interview and screening interview took place.
1.11B It is now uncommon for a Statement of Evidence Form ('SEF') to be issued for self-completion, other than for unaccompanied children. Where one is issued, it must be returned to the Home Office by the deadline given (10 working days for adults, longer for children). In other cases, the next step is usually for a substantive interview to be arranged (still, somewhat confusingly, referred to as the SEF interview), often with little time before hand for a full statement to be taken. Home Office policy on return of SEFs where they are issued is that
All requests to extend the 10 working days time limit for the return of the SEF should be considered on their merits and discretion exercised reasonably where there are exceptional circumstances. An extension will not be granted to enable the applicant to instruct a representative to complete the form. (API on Non-compliance)
1.12 The 10 day time limit for submission of completed SEFs means that representatives commonly do not have enough time to take full instructions on the claim. Unfortunately, some representatives complete the form based on hurried and unchecked instructions through fear of being refused on non-compliance grounds. Even if there are no actual mistakes in the information that is submitted, giving incomplete details is often worse than no details at all. The Home Office will argue that because some events have been detailed, it follows that every event would have been detailed had it occurred.
1.13 If the claimant's answers at the asylum interview produce information that did not appear in a SEF or any witness statement which has been submitted, the Home Office is likely to allege that the new information is fabricated. This is apparently because 'A genuine refugee could be expected to give a consistent account of her persecution.' No evidence or research is ever offered to support this assertion as to how the genuine refugee acts (the expert learning is in fact to the contrary - para 26.13), but it will be made as a matter of course especially (and most inappropriately) where the new information relates to torture.
1.14 It is not a view shared by the Tribunal which has noted that 'it is, of course, well-known that asylum applicants frequently do not tell the full story or indeed the true story on arrival after they have claimed asylum' (Adong (20404)). Indeed, the Home Office has conceded as much with respect to torture victims in various APIs:
Victims of torture or other forms of violence may have difficulties in recounting the details because of the sensitive nature of those experiences and/or because of the effect of traumatic events on their memory. (API on Asylum interviews, para 5.7)
In assessing the internal credibility of a claim, decision makers should be aware of any mitigating reasons why an applicant is incoherent, inconsistent and not able to provide detail, or delays in providing details of material facts. These reasons should be taken into account when considering the credibility of a claim and must be included in the reasoning given in the subsequent decision. Such factors may include the following (the list is not exhaustive): age; gender; mental health issues; mental or emotional trauma; fear and/or mistrust of authorities; feelings of shame; painful memories particularly those of a sexual nature and cultural implications. It is also important to consider whether any particular line of questioning was reasonable (API on Considering Asylum Claims and Assessing Credibility)
The traumatic nature of torture means that particular care and sensitivity is required when interviewing claimants who claim to be victims of torture... Caseworkers should note that not all forms of torture result in physical scars or injuries that are identifiable during a medical examination or are visible to an interviewing officer.
A torture victim's potential shame, distress, embarrassment and humiliation about recounting their experiences are difficulties which may need to be overcome. They may find it particularly difficult in the atmosphere of officialdom. Those who have suffered at the hands of their own authorities may distrust officials here, despite travelling to this country to seek refuge. In many ways, this is an intractable problem but common sense, awareness and sensitivity can reduce its influence. (API on the Medical Foundation)
While the substantive asylum interview represents the applicant's principal opportunity to provide full disclosure of all relevant factors, the disclosure of gender-based violence at a later stage in the determination process should not automatically count against her or his credibility. There may be a number of reasons why an applicant may be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family honour, or fear of traffickers or having been conditioned or threatened by them (API on Gender Issues, Section 7)
1.16 In Kasolo v SSHD (13190), the Home Office admitted that the full asylum interview was an opportunity to expand upon information previously provided, not an opportunity to catch the asylum seeker out, and the Tribunal accordingly overturned an adjudicator who had relied on failure to provide information at an earlier stage.
1.17 If your client has been subjected to a full interview shortly after arrival without advice or representation, you may well wish to argue that it is unsafe to rely on the interview notes. In Uhumwango-Asembu (00/TH/01406), the Tribunal considered a case where the Home Office had attacked credibility on the basis of a failure to mention details in an interview which were subsequently disclosed upon appeal. The Tribunal concluded that:
The asylum applicant and the interviewer each have a real part to play in the investigative process (see paras 198 - 200 of the UNHCR Handbook). In considering the effect of a decision which derives its personal facts from a single interview, the proximity of that interview to arrival and the then circumstances of the applicant must be taken into account...The interview was not structured but effectively commenced with a request that the appellant states 'what particular event caused you to leave your own country' and then proceeded by way of question and answer arising from the information so elicited. The interview is therefore effectively led by the interviewer but its parameters are set by the response to the initial question. In those circumstances, the question is to what extent a failure to provide the detailed information which might follow from a more structured approach can be regarded as undermining credibility.
There was no evaluation of the degree to which they were foreshadowed in what was said at interview nor any real consideration of the degree to which such an interview could in the circumstances in which it was carried out, be expected to produce such a full explanation of the basis of claim.
1.19 The converse of the allegation discussed above is also common: the refusal letter will complain that information provided in a SEF or statement was not repeated in the interview. This is despite the fact that the API on Considering Asylum Claims and Assessing Credibility advises decision makers that:
It should be noted that if a written statement is provided, an interview should focus on gaps in evidence; areas lacking in clarity; issues of plausibility and other areas of doubt rather than simply repeating the contents of the statement verbatim.
1.20 The Tribunal and the Court of Appeal have emphasised that a decision maker should have regard to the context of any interview, and particularly what the claimant was told about its purpose, when determining whether the omission of information is significant (e.g. Salim (13202) and JA (Afghanistan)  EWCA Civ 450, above). A common trend is to allege discrepancies between information given in the screening interview record and in the substantive interview. This is despite the fact that screening interviews are often conducted immediately on, or very shortly after, arrival in the UK, rarely in appropriate conditions for revealing sensitive details, and that the standard introduction to the screening interview informs applicants:
The questions I am about to ask you relate to your identity, background and travel route to the United Kingdom. The information you will be asked to provide will be used mainly for administrative purposes. You will not be asked at this stage to go into detail about the substantive details of your asylum claim as, if appropriate, this will be done at a later interview. However, some details you will be asked to provide may be relevant to your claim.
1.20A Despite this, it is not uncommon for applicants to be criticised for, for example, failing to catalogue any and all medical conditions, including mental health problems such as PTSD which they may well not recognise as medical conditions, or for indicating that they have never been arrested or charged with any criminal offence, but later claiming to have been arrested on suspicion of involvement in, for example, an opposition group.
1.20B It should be noted that in contrast to the "SEF interview record", the screening interview record does not even purport to be an accurate account of the interview. It will often be typed, and it will be apparent from the summary way in which both follow up questions and answers are noted that it is not a verbatim record. Your client may have been asked to sign various declarations, but it is important to distinguish between her signature that the details as recorded are correct (the usual declaration on the page with the most basic data such as name, date of birth, nationality), and a signature that she has understood the questions, and has answered them truthfully (which says nothing at all about whether they have been correctly translated, or the answers correctly recorded). (See further chapter 13.) It is important to take full instructions from your client about the circumstances of a screening interview if any discrepancies are or may be relied on. It is not uncommon for these interviews to be conducted through a glass screen in a public area in the Home Office, which is hardly private or conducive to the disclosure of sensitive personal information.
1.21 Sometimes, the claimant may be criticised for failing to give details, even though the Home Office interviewer asked for none. For example, your client may have been asked if she were detained. She answers 'Yes, for a month.' The interviewer, rather than asking for details, moves on to his next question. It is then alleged in the refusal letter that if your client had really been detained for a month, she would have given more details about it.
1.22 Where actual inconsistent statements are alleged (as opposed to a failure to mention a point at any particular stage), the allegation may result from misunderstanding or misrepresentation of your client's statements. For example, what was expressed as a rough guess by your client may be transformed by the refusal letter into a concrete statement. Leading questions may be used to lead inconsistent answers.
1.23 Very often, the claimant will be given no opportunity to comment on a perceived inconsistency between answers during the interview. The answers will simply be stored up for presentation in the refusal letter as unexplained discrepancies. Such practices are pursued, despite assurances from the Home Office that it follows (and the Tribunal's direction that it should follow) the UNHCR handbook. The Handbook states that:
While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. (paragraph 199)
1.24 It is, in any event, a basic principle of fairness that perceived discrepancies should be put to a claimant before being held against her. In Uruthiran v SSHD (21813), the Tribunal noted that:
[G]iven the shared burden of investigation, the failing by the Home Office themselves to have picked the point up when it emerged in the interview and sought elucidation tends to demonstrate a propensity towards a confrontational type of interview which is both unacceptable and contrary to the guidelines included in the UNHCR Handbook. These guidelines are in our view sensible, practical, and ensure a proper and fair investigation of a claim which does not depend for its outcome upon the awareness of an individual claimant of what he should do or alternatively the availability to a claimant of an experienced representative present at an interview.
1.25 The Home Office's APIs contain sensible advice, seldom followed by the Home Office in practice:
The asylum interview is essentially a fact finding exercise and the interviewing officer will probe any answers given and investigate unsupported statements. If there is reason to doubt a certain element of a claim it is important that the claimant has the chance to address the points of contention, and that the interviewing officer has sufficient information to address such issues in the reasons for refusal letter if it is decided to refuse the claim. In particular, it is good practice to invite the claimant to explain any behaviour that may damage credibility under section 8 of the 2004 Act....
Caseworkers should ensure that if any discrepancies arise between what is on the SEF and on other papers and what is said by the claimant at interview these discrepancies are thoroughly probed at the interview. An explanation should be sought for any discrepancies in the account given by the claimant. We should also explore discrepancies between what is in the papers and is said at interview and known country information. (API Interviewing, Nov 2006, para 2.2, Purpose of Interview)
It is important that wherever possible, any inconsistencies in the claim are put to the applicant during the interview so they have an opportunity to explain. Decision Makers must be aware of and take into account, the profile of the applicant. This is relevant both in assessing the level of knowledge they can reasonably be expected to have and the effect other factors such as age, gender, social background and underlying medical or psychological factors will have on the applicant's ability to recall certain facts. For example, the more active the applicant claimed to be in a political party the greater the expectation that they would be able to provide more detailed information. Any explanation given should then be acknowledged and considered in the overall assessment of internal credibility. (API on Considering Asylum Claims and Assessing Credibility)
1.25A Despite this guidance, it often happens that discrepancies are not put, or, where they are put, that any explanation is not in fact taken into account in the refusal letter. An asylum seeker may explain that she made a mistake when first asked a question, or that she misunderstood the question, but these explanations will be rejected out of hand in the refusal letter because of the Home Office's apparent position that a genuine asylum seeker could never make a mistake.
I confirm that I have recorded the questions that I have asked the applicant and to the best of my ability recorded his/her answers as interpreted by the HO interpreter (where applicable) and that I have recorded the pertinent details of events/incidents which occurred during the course of the interview, including documents presented by the applicant for consideration.
Leaving aside questions about the value of such a declaration in the absence of oral evidence from the interviewing officer, his declaration does not in fact claim that the record is a verbatim note, and says nothing at all about the quality of the interpretation provided.
1.25C There are two spaces for the applicant to sign: one to confirm receipt of a copy of the interview notes (not in itself controversial), and one 'for approval of contents of the copy of the interview record'. This may be interpreted by the Tribunal as an indication that the applicant is satisfied that the interview record is accurate (although it does not actually say this). If your client has signed this second declaration, you will need to take careful instructions as to the circumstances if she alleges that there are any errors in the interview record: an asylum seeker who does not speak or read English, and for whom no 'read back' will have been offered cannot possibly 'approve' as correct the contents of an often barely legible handwritten interview record running to 20 or 30 pages, immediately after the interview. Little if any weight should be given to this declaration by the Tribunal, but your client will need to explain why she signed it.
1.26 The unfairness in not putting discrepancies at the time is not cured by the point being put months or years later at the appeal when it is obviously far more difficult to explain (if it is even remembered), and the lapse of time may be relied upon by the Home Office as providing opportunity to fabricate an answer. In Salim (13202), the Tribunal said that:
It seems to us that in the second interview if there are discrepancies with the first, the appellant should then be given the chance to explain why. That opportunity would be more telling whichever way the responses went when the matter came on appeal.
As McCloskey J explained in Miah (interviewer's comments: disclosure: fairness)  UKUT 00515 (IAC), this requirement to put inconsistencies reflects the basic common law requirement of fairness. Referring to a European Commission Handbook on investigating potential marriages of convenience he noted that:
Notably, the guidance contains the following statement:
"Contradictions, inconsistencies, lack of detail and implausible statements which are relevant for the decision making should be identified and explicitly put to the interviewed spouses."
Here one finds clear echoes of the common law principle that decision making processes of this genre must be procedurally fair, reflecting the latin maxim audi alteram partem.
1.26B UNHCR has identified many serious flaws in asylum interviews during its Quality Initiative Project which may be worth referring to in an appropriate case. In its Second Report to the Minister, it stated that
2.3.7 Based on UNHCR's observations of interview transcripts in the context of assessing decisions, and on its limited sampling of interviews to date, it was noted that poor quality interviewing is a major contributory factor to inadequate fact finding, which often leads to conclusions based on speculative grounds. UNHCR observes that interviews are frequently unfocused, with insufficient preparation by the interviewer beforehand. This also leads to interviews that may be excessively long and/or insufficiently probing. UNHCR also observes that there is often little evidence of clarification being sought regarding the salient points of a claim.
In its Third Report, which focused on interviews, UNHCR stated that
UNHCR is pleased to have found evidence of some good practice amongst individual caseworkers on, for example, maintaining the appropriate interview environment. However UNHCR's observations suggest that a significant number of interviews are poorly prepared, lack focus and do not properly establish the facts of a claim. UNHCR is also concerned by some caseworkers' inability to manage the involvement of the interpreter effectively. In addition, a small number of interviewers observed adopted an inappropriate tone or line of questioning.
Where there is evidence of poor interviewing, this may be attributable to the level of competency and skill, as well as attitude, of the individual caseworkers. However UNHCR has observed that the problem may also lie with the training and guidance that is made available to caseworkers, procedures on supervision and the inadequacy of current Home Office policies for ensuring gender appropriateness.
UNHCR also noted that
2.4.15 UNHCR is pleased to observe that it is rare for caseworkers not to carry out any subjective or objective research prior to conducting a substantive interview. Nevertheless, it is UNHCR's opinion that the majority of interviews sampled demonstrate insufficient preparation and prior research by the caseworker.
This included a minority of interviews where the interviewer had not even read the claimant's statement/SEF before conducting the interview. It said that
2.4.40 While UNHCR is pleased to note that its assessments have more frequently highlighted particularly good practice than bad, a significant number of interviews were observed where a poor interview environment was created.
2.4.41 Examples of inappropriate practice include one case where the applicant was frequently interrupted and prevented from completing sentences. In another, English language interview, the applicant was asked to answer 'in proper sentences' even though it was clear that his command of English was not strong. 'Rapidfire' closed questions were put to an applicant who did not appear equipped to deal with this type of questioning and in some cases assessors observed a 'brusque' or 'abrupt' tone. In one particular interview of a young female (alleged) survivor of rape the harsh tone of the questioning, coupled with the lack of gender appropriateness of the participants may have had a significant effect on the willingness of the applicant to disclose details of her case. In some cases the applicant was addressed in the third person, with the interviewer saying to the interpreter: 'ask her if…'
2.4.42 UNHCR is concerned that in each of these cases, the tone and approach adopted by the interviewer may have had a significant bearing on the fact-finding potential of the interview in question given the likely effect on the confidence of the applicant in the interview process.
2.4.43 UNHCR assessors have commented frequently on displays of nonverbal communication which suggest disinterest or prejudgment on the part of the interviewer and/or interpreter. A lack of eye contact, expressions of disbelief, staring out of windows and doodling, by interviewers and/or interpreters appears to be quite common.
2.4.54 UNHCR has also observed occasions where interviewers were not sufficiently persistent when faced with a vague account of past events. Interviewers appear to move on even though they are not satisfied with the response, rather than take the opportunity to probe the issue further in the interview. In its sampling of decisions, UNHCR has observed that any such 'vague' response sometimes counts against the applicant's credibility in the decision.
2.4.59 UNHCR has also observed a number of interviews where applicants were asked questions which, particularly when posed through an interpreter, may have been difficult to understand or answer. These include questions which ask more than one thing, or rely on concepts, jargon or terms which may not be familiar to those from a different cultural background. These also include questions which invite speculation on the part of the applicant. Examples include
'On a scale of 1-10, how active a member of the UDPS are you? (1 = low, 10 = high)?'
[Answer: 'I have not understood the question properly'.]
'Are you a member of a particular social group?'
'Why detain you for so long if no proof?'
'Why did they interrogate you about your brother?'
'How was the group planning on the financial side of things? What plans had you put in place for finances?
1.26C Similar concerns about lack of preparation for interviews were identified in a report by Asylum Aid into the quality of initial decisions in asylum claims made by women, published in January 2011 (Unsustainable: the quality of initial decision making in women's asylum claims). These included interviewers who had not heard of the term 'female circumcision' at the time of the interview (p. 6) as well as a failure to conduct gender-sensitive interviews. Asylum Aid found that:
Substantive asylum interviews continue to be conducted in ways that are invasive and unhelpful. Some of the questions asked were both irrelevant to the claim and inappropriate. One victim of sexual abuse was asked if she had attempted to stop a man from raping her; another was asked to explain why several years of sexual harassment had ceased. One interview lasted five hours without a break, and in several instances case owners failed to pick up signals that the applicant was struggling to maintain their concentration during long and distressing interviews (p. 7)
The Home Office has recognised that the disproportionately high success rate in appeals for women (Asylum Aid found that 50% of decisions were overturned on appeal, and Home Office management statistics suggest the figure may be higher where a decision is delayed for six months or longer) suggests that there are particular problems with its initial decision making in women's cases and commenced an investigation into the reasons for this (UKBA Asylum Improvement Project: Report on Progress, May 2011).
1.27 Refusal letters have been known to allege discrepancies between the information given by the claimant and confidential information from the files of other asylum seekers (particularly relatives). The Home Office has recognised in previously published policy that this practice is unacceptable:
Caseworkers should not seek to discredit one applicant's claim by referring in a Reasons for Refusal Letter or elsewhere, to information provided in confidence by another applicant, unless that information is already in the public domain. Such action represents a clear breach of our confidentiality statement as it may allow a third party to deduce the original source of the information. This applies even where we leave out those details which specifically allow the other person to be identified.
This applies to applicants who are related, such as husbands and wives, and have separate applications. Even where one directly contradicts the other, details from the claim of one family member should not be used to discredit another family member in a Reasons for Refusal Letter unless the matter is already in the public domain. (API on Disclosure and confidentiality, para 2.3: Note that this instruction is currently removed from the Home Office website )
1.28 The policy applies regardless of whether the present claimant was previously a dependent on the other asylum seeker's claim. In the June 2013 report of its Quality Initiative, while encouraging the Home Office to interview family members who may have relevant evidence potentially corroborative of a claim, UNHCR expressed concern about the need for clear safeguards for confidentiality:
UNHCR emphasises the particular sensitivity that should be applied by decision-makers in assessing inconsistencies between the statements of family members that are material to the determination of the main applicant's claim. Although complementary interviews should be conducted to clarify aspects of evidence provided by family members, at the same time, the utmost respect should be given to separately maintaining the confidentiality of statements made by each of the family members. UNHCR finds that these particular sensitivities in regard to inconsistencies between family members' accounts are not reflected in current UKBA guidance.
Fairness would of course require that interview records that could not be disclosed to the claimant were not relied upon against the claimant.
1.29 Note that the Home Office considers that its confidentiality undertaking lapses once an appeal has been heard. It then claims to be free not only to make use of the determination but also 'all matters discussed in open court'. This freedom to disclose previously confidential information expressly embraces disclosure to other asylum seekers via their refusal letters. The only exception is where the adjudicator directed that the public be excluded from the hearing of the appeal (see chapter 32 where the policy is set out). You may need to warn your client about this policy.
If we become aware of a case where a caseworker has disclosed information (e.g. in a Reasons for Refusal Letter) that should not have been disclosed, then we must not continue to rely on that information at any subsequent appeal hearing... The case should be looked at again to ascertain whether the decision will stand without the information in question and whether further consideration/ investigation is necessary. (API on Disclosure and confidentiality, para 4)
1.31 The refusal letter might claim that 'The Secretary of State was of the opinion that your understanding of the aims of the organisation was extremely basic and therefore did not believe that you had the involvement which you claimed.'
1.32 The asylum interview on which that statement is based may have included a series of sometimes ludicrously simplistic questions about the ideology of the organisation. Your client answers the simplistic questions. The refusal letter then alleges that your client's understanding of the aims and objectives of the organisation is simplistic!
1.33 Alternatively, the Home Office will criticise a 'foot soldier' who attended demonstrations or provided food and shelter because she cannot give a blow by blow account of past splits in the organisation or the derivation of its ideology. An interviewing officer may demand that a young Kurdish villager explain whether the party for which she distributed leaflets adopts the Russian, Chinese, or Albanian model of socialism. Your client will not know what the interviewing officer is talking about (though neither, it has to be said, may the interviewing officer). The Home Office appears to have little conception of the way such activists are recruited or the manner in which the organisation presents itself to them. It would of course be more startling if such a claimant were able to pontificate on such topics.
The gender roles in many countries may mean that women are often involved in so-called "low level" political activities, for instance hiding people, passing messages or providing community services, food, clothing or medical care. Case owners should beware of equating these lower-profile political activities with low risk. (API on Gender Issues, section 4.6)
They add that:
Furthermore a person may be attributed a political opinion that they do not actually hold – women may be attributed the same political views as their male relatives. In these circumstances it may be helpful to look at what motivates the persecutor. For instance a woman who is forced to provide food for a rebel group may be treated as an opponent and attributed a political opinion by the State even though she does not support the group. (API on Gender Issues, section 4.6)
1.34A Asylum Aid points out in its January 2011 report on the treatment of women's asylum claims by the Home Office:
Women may face additional barriers in showing that their claim is credible as it is more difficult to access country of origin information on the status and treatment of women. It may also be more difficult for women to obtain documentary evidence due to the nature of the harm they have suffered or fear and the nature of their activities and place in society. What is more, in cases of imputed political opinion, some women may not have the information requested by the UKBA to evidence their claim such as evidence that relatives were registered members of a particular political party or information regarding the political party in question. (p. 18)
Country of Origin Information (COI) reports often cover the human rights conditions in a specific country from a male perspective and there is often only a short section addressing issues that specifically affect women. The lack of accessible information on the status of women and the forms of persecution they may experience in countries of origin makes it more difficult for women seeking asylum to evidence their claim and may result in negative credibility findings. (p. 20)
1.34 On a vast array of topics, the refusal letter will say that the Secretary of State considers that someone would have acted differently in the scenario your client describes and, solely on that basis, conclude that your client's account is a lie. The Secretary of State may consider that the local police would not have released your client if they were still suspicious of her; that officials would not have accepted bribes to release her or allow her through immigration control; that she would not have been arrested just because her family were active; that guerillas would not have anything against her just because she refused to help them; or that drug barons would not pursue her to a particular town.
1.35 Since no evidence is provided to support such allegations of implausibility, it can only be assumed that they are based either on what the Secretary of State would do if he was a prison guard, a guerilla or a drugs baron, or on how he believes a reasonable prison guard, guerilla, or drugs baron would behave. How the Secretary of State works this out is never revealed. Equally, the refusal letter will claim that the Secretary of State knows how your client would and would not have acted in her country of origin, for example, how much torture she would take without confessing, or whether she would risk returning to her village to see her mother one last time if she was really so frightened of the authorities.
1.35A In UNHCR's report on Home Office decision making, it stated that
2.2.9 UNHCR has observed frequent use of speculative arguments in Reasons for Refusal Letters (RFRLs). The latter will often involve the caseworker attempting to guess the thought process of a third party. Findings of implausibility are often made on the basis of little or no evidence. Furthermore, caseworkers tend to apply a narrow UK-perspective when assessing events alleged to have taken place in significantly different cultural, political and social contexts.
"It is not credible that if you were genuinely considered to be illegitimate that your father's family would wait so long before killing you."
"You stated in your asylum interview Q60 that you were detained for two months, although you were tortured and beaten, you never confessed. It is believed that it is highly unlikely that you would not have confessed if you were beaten as you alleged in your statement of evidence form. Therefore your account is not believed to be a truthful account."
"You also claim the rebels wanted you to kill people for them, that they would force you to take drugs and then try to force you to take a weapon and go and kill (AIR Q36). However, it is believed that asking you to do such a task would again be unlikely, given that you would be inefficient at such a job, unwilling and under the influence of drugs, which would in turn make the chances of a successful assassination almost impossible." [in the context of a Sierra Leonean claim.]
"Furthermore, when asked why the president did not ultimately attend this meeting in 2000, you were unable to provide a valid explanation (AIR Q44). However, given your earlier claim that they (sic) meeting had been arranged in light of the forthcoming elections (AIR Q39), it is reasonable to expect that the President would have gone to extensive lengths to ensure that he was present at this meeting, to (sic) in order to gain the favour of the public."
"It is considered wholly implausible that the authorities would continue to torture you every day for three months if you had not been able to tell them where your brother was. It is considered that if you could not provide the authorities with the information they required they would have released you, or disposed of you, when they realised you did not know your brothers (sic) whereabouts and that your continued detention would serve no purpose. It is concluded that your claim to have been detained for three months and tortured everyday does not hold any merit."
1.35B In its Third Report, it noted that
2.3.6 UNHCR also continues to observe frequent use of speculative arguments which potentially weaken Reasons for Refusal Letters (RFRLs) 3 . Such arguments demonstrate a failure to apply the correct methodology in assessing the facts as set out in the Handbook. This could be a reflection of a number of things, such as flawed credibility assessments, an application of the wrong standard of proof, a failure to apply objective COI, the adoption of a narrow UK perspective or a refusal mindset where caseworkers appear to be looking to refuse a claim from the outset.
2.3.7 Recent examples include:
"It has been believed that if supporters of the ZANU-PF had any real interest in you they would have ill-treated you in more of the several raids that you allege they conducted on your house, in search of your husband. This lessened the credibility of your claim that you would be ill-treated if returned to Zimbabwe."
"You have also alleged that this group sent you a threatening letter, threatening to kill you because you had reported them to the authorities. However, given the actions of the Jund Al-Islam/Ansar Al-Islam in Iraq, it is believed that if this group wanted to kill you, then they would have had the means to do so. If this group had targeted you to be killed, it is believed that they would have simply done so, rather than send you a letter to warn you and give you the opportunity to leave the area and/or leave the country. Your claim to have received such a letter, is not accepted."
"Moreover, if this pastor was willing to meet the cost of hiring an agent to escort you and your children to the United Kingdom on false documents then he could have as easily supported you financially in your resettlement within the Ivory Coast or could have hired security guards to protect you."
"Taking into consideration, the extent of the police force and the authorities within the DRC and specifically how they deal with those people they deem to be against the Government, and they had subsequently raided your home accordingly (sic) then they would have had the manpower and capability to apprehend those present. It is also believed that they would have had the whole house guarded and the soldiers would have forced their way into the house from all entrances. With this in mind it is difficult to believe that you would have been in a position to escape from the soldiers with such apparent ease. Consequently, it is not accepted that your home was ever raided by the soldiers as you claim...However, it is considered that even if you had escaped, then you would have been chased by the soldiers as they would have noticed you escaping. It is believed that you would have been found by the soldiers as you were walking to this persons (sic) house, as they would have been looking for you, if they had any interest in you. This further confirms that your house was never raided or that the soldiers had any interest in you."
1.35C The UK courts have criticised this reliance on plausibility. In HK v SSHD  EWCA Civ 1037, Neuberger LJ stated that
28 … [I]n many asylum cases, some, even most, of the appellant's story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
29. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
"In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability."
30. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala -v- Secretary of State  CSOH 73. At paragraph 22, he pointed out that it was "not proper to reject an applicant's account merely on the basis that it is not credible or not plausible. To say that an applicant's account is not credible is to state a conclusion" (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done "on reasonably drawn inferences and not simply on conjecture or speculation". He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely "on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible". However, he accepted that "there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant's social and cultural background".
70. To my mind, the appeal illustrates - with unusual clarity - the very difficult task faced by decision makers in a case where the applicant gives an account of facts which, if they occurred, took place in an environment which is wholly outside the experience of the decision taker and in circumstances in which there is very little relevant in-country material or expert evidence against which the applicant's account can be tested.
71. The striking features of the applicant's account in the present case is that there is no evidence to contradict it; such in-country material and expert evidence as there is tends to support it (or, at the least, is not inconsistent with it); the applicant has, himself, been consistent throughout; and there is no finding that the applicant has shown himself otherwise to be an unreliable witness.
72. On analysis of the tribunal's reasoning, I am unable to avoid the conclusion that the applicant's account has been rejected simply because the facts that he describes are so unusual as to be thought unbelievable. But, as Lord Justice Neuberger has pointed out, that is not a safe basis upon which to reject the existence of facts which are said to have occurred within an environment and culture which is so wholly outside the experience of the decision maker as that in the present case. There is simply no yardstick against which the decision maker can test whether the facts are inherently incredible or not. The tribunal's failure to confront that problem must lead to the conclusion that they erred in law.
Assessing a claim's credibility inevitably involves an element of subjectivity on the decision maker's part. The danger is that a decision maker's subjective interpretation of a claim can lead to unfounded assumptions based not on objective information but on the individual's own experiences and beliefs, undermining the balance and fairness of an assessment. (Considering Asylum Claims and Assessing Credibility)
1.36 These allegations of implausibility may directly contradict each other. For example, one paragraph may allege that the appellant's 'low level' activity for her organisation was insufficient to provoke the adverse interest of the authorities. But another paragraph will claim that it was both legitimate and expected that the authorities would wish to apprehend someone who had supported an 'illegal organisation' in the manner claimed by your client.
1.37 Sometimes, the refusal letter will be contradicted by the Home Office's own reports. For example, claims by Sri Lankan Tamils are regularly rejected on the basis that if they were of interest to the authorities, they would not have been able to leave through Colombo airport using a passport in their own name. Yet until February 2010, the Home Office's Country of Origin Report contained extracts from a letter from the British High Commission, Colombo, noting widespread concern about the poor security and levels of corruption at the airport, and the ease with which it was possible to enter supposedly secure areas without the correct documents. Another example is that claims by activists from Turkey were regularly rejected on grounds that it is implausible that the claimant would have been tortured then released without charge, rather than charged under 'the Turkish Penal Code or the strict Anti-Terror Law'. Yet, the Home Office's own Operational Guidance Note on Turkey at the time recognised both the prevalence of torture and the prevalence of arbitrary detention without charge and quoted the statistic that 95% of detainees are released without charge.
The decision maker is required to conduct research into the applicants' country of origin to assess whether claims about past and present events are consistent with objective country information using, for example, information contained in Country of Origin Information Reports produced by the COIS. (API on Considering Asylum Claims and Assessing Credibility)
Reliable and up-to-date information shall be obtained from various sources as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited. Such information shall be made available to the personnel responsible for examining applications and taking decisions and may be provided to them in the form of a consolidated country information report.
Paragraph 339J(i) requires the decision maker to take into account:
all relevant facts as they relate to the country of origin or country of return at the time of taking a decision on the grant; including laws and regulations of the country of origin or country of return and the manner in which they are applied
1.38 The Home Office commonly claims that an asylum seeker's ability to leave her country with her own passport is inconsistent with a fear of persecution. In He v SSHD  EWCA Civ 1150, Schiemann LJ noted that:
Another pillar [of the case against the appellant] seems to be that he left on his own passport. That at best goes to show that he is not wanted for any outstanding offences. Given that it is to be assumed that the passport was obtained by bribery it does not even go that far. In any event, it tells us nothing of the likelihood of persecution on return. History contains examples of regimes which persecute a minority in their home country but are content for them to leave their home country. Their attitude is: we just do not want them here.
1.39 Despite your client having submitted a detailed witness statement to the Home Office, the refusal letter will often state that 'The Secretary of State notes that you have provided no evidence of your claim.' As pointed out by the Tribunal on several occasions (e.g. Kasolo v SSHD (13190)), this allegation is simply wrong. Her statement is evidence. What the Home Office appears to mean is that the asylum seeker has provided no additional evidence to corroborate her own testimony. However, it is well established that an asylum seeker's claim should not be dismissed simply because she fails to provide corroboration. The UNHCR Handbook states that:
Often, however, an applicant may not be able to support his statements by documentary or other proof and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. (paragraph 196)
1.40 On occasion, the Home Office has made completely unreasonable or impractical demands that asylum seekers obtain documentary proof from the country of origin. On the other hand, its own obligations to assist in this respect (although only with the consent of the claimant) appear to have escaped it.
1.40A Paragraph 339L of the Immigration Rules provides that:
It is the duty of the person to substantiate the asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim. Where aspects of the person's statements are not supported by documentary or other evidence, those aspects will not need confirmation when all of the following conditions are met:
(i) the person has made a genuine effort to substantiate his asylum claim or establish that he is a person eligible humanitarian protection or substantiate his human rights claim;
(ii) all material factors at the person's disposal have been submitted, and a satisfactory explanation regarding any lack of other relevant material has been given;
(iii) the person's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the person's case;
(iv) the person has made an asylum claim or sought to establish that he is a person eligible for humanitarian protection or made a human rights claim at the earliest possible time, unless the person can demonstrate good reason for not having done so; and
(v) the general credibility of the person has been established.
1.40B This paragraph is frequently cited by the Home Office in refusal letters. It will be treated as a checklist by which the Home Office apparently decides whether to accept 'uncorroborated' claims by the asylum seeker. But your client may not have been given any opportunity to explain 'any lack of ...relevant material' – or even made aware of what the Home Office considers to be relevant. It is not unusual for the Home Office to rely on a failure to provide a medical report documenting scarring despite not indicating at any stage that it considers one is required, or, worse, to have refused to give your client further time to obtain documentary or medical evidence to support her claim before reaching a decision to reject it on the basis of a lack of corroboration. That is despite the Home Office having expressly accepted the correct position in its published policy. The APIs state that:
However, it is important to understand paragraph 339L and its limitations. What it is saying is that if an applicant meets all 5 criteria, a decision maker should give the benefit of the doubt – there would, after all be no reason not to do so. However, the reverse is not automatically true. Because an applicant fails to meet one or more of the criteria, this in itself does not permit a decision maker to disregard all unsubstantiated areas of an applicant's claim because an unsubstantiated statement can be credible if it is generally internally consistent, compatible with known facts and plausible. It is, once again, a matter of determining the weight to be given to these issues in the light of the material facts of the case. (API on Considering Asylum Claims and Assessing Credibility)
1.40C The consideration in MF (Albania) v SSHD  EWCA Civ 902 of whether all the criteria under paragraph 339L were satisfied was in the context of its resistance to the argument being advanced to it in that case that the provision required acceptance of a statement claiming the existence of a risk rather than a statement of a factual history. In any event, and as a matter of principle, just as with section 8 of the 2004 Act (see paras 1.44A-1.44F below), paragraph 339L should not be treated as a mandatory set of requirements in order for the Home Office, or the Tribunal, to find an asylum seeker's account credible. It is a tool for the assessment of credibility, and sets out factors which are undoubtedly relevant to the conduct of that assessment, but should not be regarded as a direction to judicial fact finders as to how fact-finding should be conducted. It might even be regarded as a statement of the obvious – particularly subparagraph (v) – if a person's 'general credibility' is not established it is hardly likely that a fact finder will accept uncorroborated claims made by that person.
1.41 If the claimant is lucky enough to be able to produce corroborating documentary evidence, that is seldom the end of her troubles. The evidence is liable to be dismissed simply as 'self-serving' (which the Tribunal has noted is a nonsensical characterisation: see para 16.14). The refusal letter may then assert in Kafkaesque terms that the corroborating evidence cannot be accepted without corroborating evidence.
1.42 If the claimant remained in her country for any period after first being attacked or ill-treated then it will usually be alleged that the reasonable refugee could be expected to leave her country at the earliest opportunity. This may well sit in the same refusal letter as a paragraph claiming that the first incident was of insufficient gravity to justify claiming protection, or that her release from detention should have left her with nothing to worry about.
1.43 On the other hand, if your client left immediately after her problems developed, it will be said that there is no proof that she would have suffered any further problems had she stayed. For example, a claimant who fled following a two week detention in Sudan was told that her decision to flee was 'hasty and ill-conceived' (Still No Reason At All, p.33). It is not uncommon to find the same refusal letter containing one allegation that the claimant left too early, and another that she left too late.
1.44 The allegation regularly derives from a misunderstanding of the cause of the claimant's flight. For example, the Home Office may complain that the claimant remained in her country for a year after being detained despite her never actually having suggested that this detention was the trigger for her flight. The Home Office may have little regard to factors such as a claimant's reluctance to abandon her home or family. Nor does it find it easy to recognise any middle ground between somebody who leaves at the first sign of trouble and someone who fights to the death.
Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004
1.44A The APIs summarise the effect of section 8 as follows:
In considering an asylum or human rights claim, there is a general requirement under Section 8(1) to take into account as damaging to the claimant's credibility any behaviour by the claimant that the decision maker thinks is designed or likely to:
• conceal information;
• mislead; or
• obstruct or delay the handling or resolution of the claim.
Specified types of behaviour
As well as this general requirement, certain types of behaviour are also listed in Section 8 as behaviour which must always be treated as damaging to the claimant's credibility. These are:
• failure without reasonable explanation to produce a passport on request;
• production of a document that is not a valid passport as if it were. Note: there is no 'reasonable explanation defence' in this case;
• destruction, alteration or disposal of a passport, ticket or other travel document without reasonable explanation;
• failure without reasonable explanation to answer a question asked by a deciding authority;
• failure to take advantage of a reasonable opportunity to make an asylum or human rights claim while in a safe country
• failure to make an asylum or human rights claim until notified of an immigration decision, unless the claim relies wholly on matters arising after the notification
• failure to make an asylum or human rights claim before being arrested under an immigration provision, unless there was no reasonable opportunity to claim before the arrest or the claim relies wholly on matters arising after the arrest.
An assessment of credibility will always depend on the full circumstances of the individual case. The fact that Section 8 considerations have the force of law does not mean they are to be given more weight than other factors which impact on credibility. A poor immigration history does not, on its own, justify the rejection of a claim without considering the other material claimed facts. The Act does not relieve decision makers of their obligation to give due weight to all the facts of the case, including any background information that is available and relevant. [emphasis as in original] (API on Considering Asylum Claims and Assessing Credibility)
1.44C In Y v SSHD  EWCA Civ 1223, Carnwath LJ said that
it may be useful to record the limited way in which section 8 is apparently interpreted by the Secretary of State, as appears from the submissions before us in the skeleton of Mr Neil Garnham QC for the Secretary of State:
"The Secretary of State accepts that section 8 should not be interpreted as affecting the normal standard of proof in an asylum/human rights appeal. There is nothing in the wording of the Act that requires (or indeed permits) such a result. The effect of section 8 is simply to ensure that certain factors relating to personal credibility are taken into account when that standard of proof is applied. The weight and significance of those factors will vary according to the context and the precise circumstances of the behaviour."
That appears to be in line with the passage from the speech of Baroness Scotland of Asthal QC for the Government in the House of Lords, Hansard 5 April 2004 Column 1684 where she said:
"The clause will not force a deciding authority to give undue weight to any of the factors it lists; it will merely ensure that all these factors are considered in a systematic and transparent way."
1.44D That corresponds with the approach taken by the Tribunal. In SM (Section 8: Judge's process) Iran  UKAIT 00116, it held that
Even where section 8 applies, an Immigration Judge should look at the evidence as a whole and decide which parts are more important and which less. Section 8 does not require the behaviour to which it applies to be treated as the starting-point of the assessment of credibility.
19 Section 8 can, in my judgment, be construed in a way which does not offend against constitutional principles. It plainly has its dangers, first, if it is read as a direction as to how fact-finding should be conducted, which in my judgment it is not, and, in any event, in distorting the fact-finding exercise by an undue concentration on minutiae which may arise under the section at the expense of, and as a distraction from, an overall assessment. Decision-makers should guard against that. A global assessment of credibility is required: see R (Sivakumar) v Secretary of State for the Home Department  1 WLR 840 .
20 I am not prepared to read the word "shall" as meaning "may". The section 8 factors shall be taken into account in assessing credibility, and are capable of damaging it, but the section does not dictate that relevant damage to credibility inevitably results. Telling lies does damage credibility and the wording was adopted, probably with that in mind, by way of explanation. However, it is the "behaviour" of which "account" shall be taken and, in context, the qualifying word "potentially" can be read into an explanatory clause which reads: "as damaging the claimant's credibility." Alternatively, the explanatory clause may be read as: "when assessing any damage to the claimant's credibility." The form of the subsection and Parliament's assumed regard for the principle of legality permit that construction.
21 Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in section 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that, I respectfully agree with Baroness Scotland's assessment, when introducing the Bill, of the effect of section 8 . Where section 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder.
1.45 If the claimant passed through any other country on her way to Britain, it will be alleged that 'a genuine refugee would be expected to apply for asylum in the first safe country she reached'. Note that s.8(4) requires decision makers to treat a failure to take advantage of a reasonable opportunity to claim asylum in a safe country as damaging credibility – but that a 'safe country' is defined for these purposes as an EEA state other than the UK (s. 8(7) – by reference to the statutory presumption of safety in Sch 3 of the 2004 Act).
1.46 The Home Office does not offer any justification for this allegation. There would have been no need to claim asylum in a transit country unless she was detained in the transit country and faced with refoulement. Given that she successfully passed through the transit country undetected, it is difficult to see the logic behind the Home Office's argument. The Home Office has never produced any empirical evidence to support it.
1.47 Nor has it any basis in law. Professor Hathaway - recognised by the House of Lords as the leading academic authority on the Convention - states that there is no requirement upon a refugee to claim asylum in the first country which they reach. He points out that the Convention could have imposed such a requirement but did not. He concludes that 'The basic standard unequivocally refutes the legitimacy of a so-called 'direct flight' requirement' (Law of Refugee Status, pp. 46 - 50). That is also UNHCR's position. In R v Uxbridge Magistrates Court, ex parte Adimi  EWHC 765 (Admin)  Imm AR 560, the English courts finally rejected the argument, Simon Brown LJ stating that he was persuaded by the travaux preparatoires to the Convention, UNHCR, and the writings of leading commentators that an element of choice was indeed open to refugees as to where they claimed asylum. Newman J said in the same case that:
The Convention is a living instrument, changing and developing with the times so as to be relevant and to afford meaningful protection to refugees in the conditions in which they currently seek asylum. Apart from the current necessity to use false documents, another current reality and advance, occurring since 1951, is the development of a readily accessible and worldwide network of air travel. As a result there is a choice of refuge beyond the first safe territory by land or sea. There have been distinctive and differing state responses to requests for asylum. Thus there exists a rational basis for exercising choice where to seek asylum. I am unable to accept that to recognise it is to legitimise forum shopping.
1.47A The decision in Adimi  EWHC 765 (Admin) has been supported by academic writers and UNHCR, and was approved by the House of Lords in R v Asfaw  UKHL 31. In AJ (Pakistan)  CSIH 49, the Court of Session (Inner House) accepted that it continues to have force despite the passing of section 8 (which requires a failure to claim asylum in a safe country to be taken into account as damaging credibility – see para 1.45 above), and in particular "gives some guidance as to the approach to be taken to the concept of "reasonable opportunity" contained in section 8(4)" (paragraph 9, per Lord Clarke). The Tribunal had thus erred in law in failing to consider whether AJ had a reasonable opportunity to claim asylum in the countries through which he had passed (which included Greece), and in addition was held to have erred in its approach to section 8 by treating the failure to claim asylum in Greece as a 'serious credibility issue'. Lord Clarke observed:
Section 8(4) does not describe any such factor as being "serious". It simply directs that such a failure should be taken into account as damaging the claimant's credibility. No explanation or justification is given by the immigration judge for regarding this matter as a serious credibility issue in the overall context of this case. She appears to have isolated this factor as having some special status and effect of its own as opposed to placing it simply as one of the relevant factors in determining credibility.
1.48 Even if the Home Office argument did have some basis in law, it is unclear how it envisages that asylum seekers would judge the relative safety of various third countries - particularly when litigation over the years demonstrates how difficult the Home Office itself has found this task. It is often hard to believe that even the Home Office considers the third country is really safe. Sometimes, the supposedly safe third country turns out not even to be a signatory to the Refugee Convention. Finally, the previous Home Secretary himself disputed that asylum seekers are drawn to the UK by its favourable laws and policies (a finding supported by Home Office research). He concluded instead that:
The reason particular individuals and groups choose a particular country in which to seek asylum are many and various, including historical links and similar cultural factors. (Letter from Home Secretary, Daily Telegraph 21.1.99)
1.49 Claiming asylum after arrival, even days after arrival, is according to the Home Office 'contrary to the behaviour which could reasonably be expected of a genuine refugee'. No evidence is offered. Its own published Asylum Instruction on Considering Asylum Claims and Assessing Credibility advises case workers that "Actions that might not be credible include a delay in making an application for asylum following arrival in the UK if the applicant is unable to provide an explanation for his actions." (emphasis added) If someone successfully effects entry to the country - whether legally or illegally - and then presents themselves voluntarily to the Home Office to seek asylum, it is difficult to understand how that demonstrates that they do not need it. The Tribunal has recognised that:
'It seems to us entirely understandable that a potential refugee would think it far preferable to obtain admission before applying for asylum than applying at the airport.' (Latif Mohammed (7592))
Care should be taken before placing undue weight on an untruth told at the point of entry in order to get into this country. There may in certain cases be good reasons for telling that untruth. Cases will vary depending on their facts and the personality involved. Some people arriving in this country may be in fear or may have very little understanding of what is required of them. (Wakene v SSHD (IATRF 98/0113 CMS4), per Swinton Thomas LJ)
1.51 In R v Uxbridge Magistrates Court, ex parte Adimi  EWHC 765 (Admin), Simon Brown LJ quoted with approval UNHCR guidance to the effect that:
given the special situation of asylum seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of insecurity, and the fact that these and other circumstances may vary enormously from one asylum seeker to another, there is no time limit which can be mechanistically applied or associated with the expression [claiming asylum] 'without delay'.
1.52 If someone has been granted leave to enter or remain in another capacity for a substantial period, she may be understandably reluctant to subject herself to the distress and uncertainty of the asylum process for so long as she has this alternative protection from refoulement. That is particularly so since a refusal in the asylum process could lead to curtailment of her leave and hasten her expulsion. She may hope that she will be able to return to her country in time.
1.52A 'Delay' in claiming asylum continues to be relied on by the Home Office even in cases where the 'delay' is due to the fact that it is in practice no longer possible to simply turn up at the screening unit in Croydon to claim asylum after entering the UK. An appointment must first be obtained, usually by telephone, and up until August 2011 representatives experienced serious difficulties in getting through on the appointment line. Even once an appointment is made, there may be a considerable delay until the appointment date. It is plainly absurd for UKBA to rely on such 'delay' as a reason for rejecting the claim made, but these claims are still frequently made.
1.52B The Immigration Rules stipulate that:
Applications for asylum shall be neither rejected nor excluded from examination on the sole ground that they have not been made as soon as possible.(paragraph 339MA)
1.52C Note that section 8 does not expressly require a failure to claim asylum on arrival or as soon as possible to be taken into account as damaging credibility – although this may be, and often is, regarded by the Home Office or the Tribunal as falling within the general provisions outlined above (para 1.44A). Section 8(5) requires account to be taken of failure to claim asylum prior to an immigration decision being taken, and section 8(6) of a failure to claim prior to being arrested (for any offence at all). The Home Office will often rely on these provisions in connection with the decision of the Tribunal in TP (Credibility) Zimbabwe  UKIAT 00159, which held that the Tribunal was entitled to reject an asylum claim purely on the basis of the claimant's immigration history without considering the substance of his claim at all. TP had failed to claim asylum for over a year after arriving in the UK, and did not do so until he was arrested and told he would be deported. It will often be necessary to distinguish this case, and if your client presented herself voluntarily to the authorities that will be a good basis on which to do so.
1.53 This is another 'damned if you do, damned if you don't' category. If your client has taken part in political activities in the UK, these are likely to be dismissed as 'self-serving'. If she has not, it may be said that this is inconsistent with her claimed political commitment in her home country.
1.54 The Court of Appeal held in Danian v SSHD  EWCA Civ 3000  Imm AR 96 that a claim cannot be rejected on the basis that the risk flows from activities which were 'self-serving' (or 'unreasonable', or even carried out in bad faith). The sole question is whether these activities create a real risk of article 3 ill-treatment or persecution for a Convention reason. See also YB (Eritrea) v SSHD  EWCA Civ 360, para 13-15. The API on Considering Asylum Claims and Assessing Credibility now advises decision makers that:
Such cases will therefore call for very careful enquiry and assessment, both as to whether the individual would wish to express his beliefs in the country of origin in a manner consistent with past or current behaviour, and as to whether the individual's actions in the UK are in themselves likely to occasion persecution irrespective of the motivation for them. In paragraph 4 of an Iran country guidance determination issued in February 2011 (BA (Demonstrators in Britain – risk on return) Iran CG  UKUT 36 (IAC), the Upper Tribunal identified five factors to be considered when assessing risk on return having regard to sur place activities which may, in its general findings, be applied to other nationalities. The precise wording of the determination may be seen in the link, but they may be summarised as follows:
• The nature and extent of sur place activity, eg the individual's role in demonstrations, their purpose and the publicity attracted in the UK or abroad
• The risk or likelihood of identification by the regime, eg its capacity to identify the individual from publicity or its own monitoring of UK activity.
• Factors which could trigger inquiry/action on return:
• whether the person is known as a committed opponent or someone with a significant political profile; or does he fall within a group which the regime regards with suspicion or as especially objectionable?
• whether the person left the country (illegally; type of visa); where has the person been when abroad; is the timing and method of return more likely to lead to inquiry and/or being detained for more than a short period and ill-treated
• Consequences of identification, e.g. is there any known differentiation between demonstrators depending on the level of their political profile adverse to the regime?
• Identification risk on return, e.g. the matching of identification to that individual on return person, i.e. if a person is identified is that information systematically stored and used; are border posts known to be geared to the task?
1.55 The refusal letter commonly asserts that the claimant is an economic migrant. Questions and answers in the asylum interview may be twisted in an effort to produce a basis for this allegation. Consider, for example, the following exchanges from a Home Office asylum interview, quoted in Still no reason at all:
1. Interviewer: How did you intend to support yourself in the UK?
Claimant: When I came here I knew nothing. I believe that given the chance to work I would.
Interviewer: Did you think you would be able to work in the UK when you left...?
Claimant: I hoped.
2. Interviewer: What will you do if (asylum) granted?
Claimant: I will be grateful. Try to work at anything?
Interviewer: If refused?
Claimant: I think it will be very difficult to return to [my country]. I cannot return because of the danger to my family. I have faith in the UK being a democratic country and upholding human rights.
These were sufficient in each case for the Home Office to allege that the claim was based on a 'desire for economic betterment not a fear of persecution'.
An applicant may have economic motives for coming to the UK - and may well be economically better off if removed from persecution. This does not affect the claim for asylum, which should be considered solely on whether the applicant would be persecuted for a Convention reason if returned to their home country. If the decision maker is satisfied that the applicant does have a well-founded fear of persecution the fact that they may also be better off economically by travelling to the UK is not relevant to the assessment of the claim. (API on Considering asylum claims and assessing credibility)
1.56 Your client may well have had a perfectly reasonable quality of life in economic terms in her home country (particularly compared to her quality of life as an asylum seeker in the UK). Alternatively, her economic difficulties may flow from discrimination or the adverse interest of the authorities.
1.57 The Home Office produces standard paragraphs about conditions in particular countries of origin which it often inserts into refusal letters regardless of the facts of the individual's case. They are seldom sourced. They will range from claims that democratic elections are on the horizon to more picturesque assertions about farmers feeling safe enough to return to their fields. It will often be alleged that government ministers do not approve of human rights abuses by their security forces or that such abuses are not government policy. It will likely ignore clear evidence that abuses continue despite this condemnation, or claim that they may be disregarded because they are the result of 'indiscipline'. In Jayakumaran  Imm AR 45, Taylor J commented:
'I ask what solace it is to the victim to hear that he is being persecuted by soldiers out of control rather than the government if this be the case.'
1.58 Often there will not be a clear divide between 'the government' and 'soldiers out of control'. Particular organs of state may be willing to condemn human rights abuses while other organs of state perpetrate them. One part of the security forces may torture while another does not. Different state organisations may be bitterly opposed to each other. In Kinuthia v SSHD  EWCA Civ 2100, the Court of Appeal confirmed that it is a misdirection in law to conclude that the availability of 'recourse' after the claimant has been maltreated by the security forces can constitute sufficient protection for the purposes of the Refugee Convention.
1.59 Past persecution and ill-treatment will commonly be dismissed by the Home Office on the ground that the claimant has not shown that she will suffer such treatment again. It is of course impossible for the claimant to prove that she will suffer the same treatment that she has already suffered. But that is not the test. In Demirkaya v SSHD  EWCA Civ 1654, the Court of Appeal cited with approval the following passage from Professor Hathaway's The Law of Refugee Status:
Where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an applicant upon return to her home. Unless there has been a major change of circumstances within that country that makes prospective persecution unlikely, past experience under a particular regime should be considered probative of future risk...
In sum, evidence of individualised past persecution is generally a sufficient, though not a mandatory, means of establishing prospective risk.
In my judgment, if it is the opinion of the Tribunal that there has been such a significant change that the appellant is no longer at risk, it is incumbent upon them to explain why it is so.
1.60A Article 4(3) of the Qualification Directive provides that
The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.
160B This is transposed by para 339K of the Immigration Rules. The APG states that
If an applicant has already been subjected to persecution or serious harm, or to direct threats of such persecution or such harm, paragraph 339K of the Immigration Rules makes it clear that decision makers should regard this as "a serious indication of the person's well founded fear of persecution or real risk of suffering serious harm, unless there are good reasons, to suggest that such ill-treatment will not be repeated". Such reasons might include, for example, a significant and enduring improvement in country conditions. Considering past events is therefore an important aspect of assessing any asylum claim. (Considering the Asylum Claim)
Note that the principle applies equally to refugee claims and claims for Humanitarian Protection, and the Upper Tribunal has explained that this principle is equally important in assessing whether in an individual case there is likely to be a sufficiency of protection on return: AW (sufficiency of protection) Pakistan  UKUT 31 (IAC).
1.61 Another common Home Office argument is that 'While you claim to have been arrested repeatedly and ill-treated, you were on your own account released each time without charge because the authorities had no evidence and the Secretary of State does not therefore believe you are of any adverse interest to the authorities.'
1.62 Claimants often indicate, when asked why they were not charged or convicted, that they do not think that the authorities had the necessary evidence. This may be correct. However the Home Office may portray this as acceptance that the authorities have no further interest in, suspicion of, or desire to obtain evidence against the claimant, which is not usually what she meant at all.
1.63 You can of course simply point to the fact that your client has been repeatedly detained as indicating risk of repetition. But the central weight that the Home Office repeatedly puts on the absence of any charge (regardless of torture) is particularly strange. The right not to be detained without charge exists, according to international human rights law, to protect the detainee. Arbitrary extra judicial detention may well be a feature of the tyranny from which your client flees. The security forces may use detention and torture in order to intimidate, punish, and obtain information, and disregard due process of law because they consider themselves above it. That, one would have thought, was part of the claimant's case rather than the Home Office's case.
The Secretary of State noted that you claimed that soldiers... came to your house... arrested your father and shot your brother who later died although you managed to escape through a window. The Secretary of State noted your claim that the soldiers were firing wildly within the house, and he considered that the shooting of your brother was therefore not necessarily a deliberate act. He further noted that they did not shoot your father who was the most politically active member of your family.
Protection shall be regarded as generally provided when [the State or any party or organisation, including any international organisation, controlling the State or a substantial part of the territory of the State] take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the [claimant] has access to such protection.
1.65A This arguably indicates an even greater emphasis on the effectiveness of protection for the individual claimant than the previous UK caselaw. However, in AB (Protection -criminal gangs-internal relocation) Jamaica CG  UKAIT 00018, the Tribunal held that "the definition given in regulation 4 of the Protection Regulations closely mirrors that contained in leading cases", and set out the summary of the Court of Appeal's conclusions on protection from non-state risks in R (Bagdanavicius) v SSHD  EWCA Civ 1605, including the following:
(4) Sufficiency of state protection, whether from state agents or non-state actors, means a willingness and ability on the part of the receiving state to provide through its legal system a reasonable level of protection from ill-treatment of which the claimant for asylum has a well-founded fear: Osman 29 EHRR 245, Horvath  1 AC 489 and Dhima  Imm AR 394.
(5) The effectiveness of the system provided is to be judged normally by its systemic ability to deter and/or to prevent the form of persecution of which there is a risk, not just punishment of it after the event: Horvath , Banomova  EWCA Civ 807, McPherson  INLR 139 and Kinuthia  INLR 133.
(6) Notwithstanding systemic sufficiency of state protection in the receiving state, a claimant may still have a well-founded fear of persecution if he can show that its authorities know or ought to know of circumstances particular to his case giving rise to his fear, but are unlikely to provide the additional protection his particular circumstances reasonably require: Osman.
(7) The same principles apply to claims in removal cases of risk of exposure to article 3 ill-treatment in the receiving state...
(16) The approach is the same whether the receiving country is or is not a party to the Human Rights Convention, but, in determining whether it would be contrary to article 3 to remove a person to that country, our courts should decide the factual issue as to risk as if Human Rights Convention standards apply there...
The Court of Appeal also confirmed the proposition that "the worse the ill-treatment [feared], the more will be required to demonstrate the adequacy of state protection" (para 42).
1.65B The Court of Appeal's decision was upheld by the House of Lords (R v SSHD, ex parte Bagdanavicius  UKHL 38). Lord Brown stated that since the test was whether there was a real risk of suffering a notional article 3 violation in the country of origin,
any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection.
1.65C In McPherson v SSHD  INLR 139  EWCA Civ 1955 (referred to at para 5 of the Court of Appeal's summary conclusions in Bagdanavicius  EWCA Civ 1605), Arden LJ noted that "Article 3 requires a state to provide machinery to deter a violation of that article which attains a satisfactory degree of effectiveness" (para 36). She also said that the Strasbourg Court had held that the positive obligations under article 3 (and article 8) required "effective deterrence". Sedley LJ also referred to "effective compliance" as a condition of compliance with a state's positive obligation of protection (para 19) and noted that "What matters is that protection should be practical and effective" (para 21). Evidence that the state has not provided a reasonable level of protection to the claimant in the past will be relevant to assessing whether there is a real risk that such reasonable protection will not be provided in the future (see eg Katrinak v SSHD  EWCA Civ 832; Harakel v SSHD  EWCA Civ 884). In AW (sufficiency of protection) Pakistan  UKUT 31 (IAC), the Upper Tribunal found that an IJ had erred in law because he assessed only whether there was a general sufficiency of protection in Pakistan, without considering the appellant's individual circumstances, including the failure of the State to afford adequate protection from serious harm in the past.
1.65D Yet the Home Office still manages to incorporate criteria into its refusals for which there is no support in any caselaw, and which can be discarded before you start collating evidence to deal with the remainder. This is a common standard paragraph from a refusal letter in a non-state case:
With regard to the attacks that you claim have been perpetrated on you by non-state groups, the Secretary of State would point out that, in general, he takes the view that such individuals cannot be regarded as 'agents of persecution' within the terms of the Refugee Convention. In order to bring yourself within the scope of the Convention, you would have to show that these incidents were not simply the random actions of individuals but were a sustained pattern or campaign of persecution directed at you which was knowingly tolerated by the authorities, or that the authorities were unable, or unwilling, to offer you effective protection. In the opinion of the Secretary of State, this has not been established in your case. The Secretary of State does not consider that the authorities' inability to apprehend the perpetrators can be construed as complicity in, or support for, such attacks. He considers that you should seek redress through the proper authorities before seeking international protection.
1.66 There is no authority for the proposition that past harm from non-state actors must constitute 'a sustained pattern or campaign of persecution'. Ask the HOPO to identify his authority. Ask him also for the authority supporting a requirement that a refugee must 'seek redress through the proper authorities' before seeking asylum. It is similarly unnecessary to show 'complicity in, or support for, such [non-state] attacks'.
1.67 The Home Office will often allege that sufficient protection exists in countries where there is no proper rule of law, no independent judicial system, and brutal and arbitrary security forces. It will rely upon statements of government ministers and government 'initiatives' without any assessment of their effect on the ground.
1.69 It is now more common than in the past for the Home Office to rely upon exclusion under Article 1F (see chapter 14). More common still is an allegation that the security forces' interest in the claimant was 'legitimate' because of the claimant's support for an illegal/terrorist organisation. What the Home Office apparently wants to say is that she is not being persecuted because the security forces are conducting a legitimate investigation into terrorism. However, torture can never amount to legitimate investigation (Ravichandran v SSHD  Imm AR 97). One motive of the persecutor may be to combat 'terrorists'. But the infliction of torture may give rise to a factual inference that a Convention reason was also in play (R v SSHD, ex parte Sivakumar  UKHL 14, per Lord Hutton).
1.70 The 'legitimate interest' argument may be used not only against supporters of armed opposition groups but even against those involved in peaceful political opposition simply on the basis that the state authorities have declared such activities 'illegal'. The Home Office may allege that security forces were only doing their duty in arresting your client due to the illegal nature of her activities, and that this is 'prosecution not persecution', or even that arrest for illegal activities does not come within the Refugee Convention. Clearly, the fact that the state has outlawed her activities will be part of her case - yet the refusal letter may not only appear to legitimise such laws but view them as the answer to the claimant's case.
1.71 The Home Office regularly relies on an internal protection alternative ('internal flight') for no apparent reason except that your client has not actually been persecuted in the area to which the Home Office suggests she goes. This is often as sensible as suggesting that someone who escaped from police in London will not be of interest to police in Newcastle. It will usually be perfectly reasonable for your client to assume that once she comes to the adverse attention of a state's security forces in her home area, she cannot look to those same authorities for protection in any other area.
In Januzi v SSHD  UKHL 5, Lord Bingham said that
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. (para 21)
Lord Hope said that
The dangers of a return to a country where the state is in full control of events and its agents of persecution are active everywhere within its borders are obvious. It hardly needs to be said that in such a case internal relocation is not an option that is available. Remoteness of the suggested place of relocation from the place of origin will provide no answer to the claimant's assertion that he has a well-founded fear of persecution throughout the country of his nationality. (para 48)
1.71A In SA (political activist – internal relocation) Pakistan  UKUT 30 (IAC), the Upper Tribunal observed that:
In our judgement also, the only way the appellant could achieve safety by relocation was if he effectively decided to live in hiding or in political exile. In UK asylum law, requiring a political activist to live away from his home area in order to avoid persecution at the hands of his political opponents has never been considered as a proper application of the internal relocation principle (para 15)
1.72 There is in any event the additional question of how your client might reach the proposed area of internal protection. The Home Office may have to be reminded that your client is not actually in the country of origin - its proposed internal protection alternative often assumes the contrary. Its proposal might be viable were it planning to drop your client on a deserted beach in the dead of night so that she could reach the 'safe' area undetected. It might be less viable if (as is more likely) the Home Office is planning to fly her into the main airport into the arms of the security forces.
It is now clearly established that the route of return may be justiciable on appeal: In HH (Somalia) & Others  EWCA Civ 426, the Court of Appeal held that:
In any case in which it can be shown either directly or by implication what route and method of return is envisaged, the [Tribunal] is required by law to consider and determine any challenge to the safety of that route or method
1.73 The question of whether it is unreasonable to expect the claimant to go to the 'safe' area often receives cursory attention from the Home Office with little regard to the claimant's individual characteristics - notwithstanding that, for example, the Home Office's APIs on Gender issues in the asylum claim point out that
The availability of internal relocation may be more difficult for women than for men. Great care needs to be taken in assessing its reasonableness on an individual basis
It further provides that:
In certain countries, financial, logistical, social, cultural and other factors may mean that women face particular difficulties. This may be particularly the case for divorced women, unmarried women, widows or single/lone parents, especially in countries where women are expected to have male protection. Women may also face a particular form of discrimination in the place of relocation and thus be unable to work so that they cannot survive in the place of relocation.
Where the fear is of members of her family, relocation is clearly not appropriate if the situation a woman would be placed in would be likely to leave her with no alternative but to seek her family's assistance and thus re-expose her to a well-founded fear of persecution or a real risk of serious harm.
1.73A In SSHD v AH (Sudan) and Others  UKHL 49, the House of Lords confirmed that it was "plainly wrong" to consider that "conditions in the place of intended relocation could not be unreasonable or unduly harsh unless they were liable to infringe an applicant's rights under article 3 or its equivalent." (Lord Bingham, para 9).
1.73B As to the assessment of what is unreasonable or unduly harsh, Lord Bingham observed in AH (Sudan)  UKHL 49 that "the test propounded by the House in Januzi was one of great generality, excluding from consideration very little other than the standards of rights protection which an applicant would enjoy in the country where refuge is sought" (para 13). It stated that conditions in both the previous place of residence and the place where it was proposed she should live were relevant to the assessment although neither should be a starting-point
1.73C In Januzi  UKHL 5 (para 20), Lord Bingham had said that it was
...important, given the immense significance of the decisions they have to make, that decision-makers should have some guidance on the approach to reasonableness and undue harshness in this context. Valuable guidance is found in the UNHCR Guidelines on International Protection of 23 July 2003. In para 7 II(a) the reasonableness analysis is approached by asking "Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?" and the comment is made: "If not, it would not be reasonable to expect the person to move there."
He then set out parts of the UNHCR Guidelines dealing with respect for human rights and socio-economic issues, including that
Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned.........A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship.
1.73D In AH (Sudan)  UKHL 49, Baroness Hale said that
20 My Lords, we are all agreed that the correct approach to the question of internal relocation under the Refugee Convention is that set out so clearly by Lord Bingham ... in Januzi ..., para 21:
"The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so."
As the UNHCR put it in their very helpful intervention in this case:
"the correct approach when considering the reasonableness of IRA [internal relocation alternative] is to assess all the circumstances of the individual's case holistically and with specific reference to the individual's personal circumstances (including past persecution or fear thereof, psychological and health condition, family and social situation, and survival capacities). This assessment is to be made in the context of the conditions in the place of relocation (including basic human rights, security conditions, socio-economic conditions, accommodation, access to health care facilities), in order to determine the impact on that individual of settling in the proposed place of relocation and whether the individual could live a relatively normal life without undue hardship."
I do not understand there to be any difference between this approach and that commended by Lord Bingham in para 5 of his opinion [in AH (Sudan)]. Very little, apart from the conditions in the country to which the claimant has fled, is ruled out.
1.73E An example is the 'country information' (see para 29.44F) given in CM (EM country guidance; disclosure) Zimbabwe CG  UKUT 00059 (IAC) where the Tribunal considered that the evidence indicated non-political gang activity including 'touts' extorting money from people seeking work and concluded that "if it is being asserted that a person could relocate to ... areas where the evidence established high levels of [gang] activity, it will be necessary to consider whether any difficulties posed by [gangs] would, on their own or cumulatively, make such relocation unreasonable in Januzi terms." (para 201)
1.73F Note that pursuant to Art 8 of the Qualification Directive, transposed by para 339O of the Immigration Rules, the requirement that internal relocation be reasonable applies equally to refugee status and Humanitarian/ Subsidiary Protection. This encompasses most appeals based on Article 3 so that it is not necessary to establish a real risk of Article 3 ill-treatment throughout the country of origin if relocation from the home area would be unreasonable (unless, of course, the claimant is excluded from Humanitarian Protection). It also applies to claims arising out of situations of indiscriminate violence in armed conflict under Article 15(c) of the Qualification Directive – see the discussion in AK (Article 15(c)) Afghanistan CG  UKUT 00163 (IAC) (See also API on Humanitarian Protection)
1.74 The separate consideration of human rights provisions at the end of this chapter reflects the treatment it receives in the average refusal letter. The issue generally appears as an addendum, indeed often a single paragraph which asserts that the claimant does not qualify for protection under any of the articles of the ECHR. Article 8 is now usually considered separately, and is addressed separately below.
1.75 Where individual articles of the ECHR are dealt with at all, it will often be simply by reference back to the reasons for refusing asylum, however inapplicable they are. For example, an article 3 claim may be dismissed by reference to a discussion which centred upon absence of Convention reason, or upon the proposition (particular to the Refugee Convention) that generalised risk from civil war should be excluded from consideration.
1.76 Where the refusal letter does engage in discussion of human rights provisions, it will often get them wrong. This is worth taking up with the Home Office. For example, the Home Office rejected one claimant in the following terms:
The Secretary of State has considered your claims under Article 3 in which you claim that your mental state would deteriorate. However, the Secretary of State considers that depression, post-traumatic stress disorder or mental illness cannot amount to inhuman and degrading treatment even when the condition deteriorates on return.
1.77 That proposition is contrary to the European Court's caselaw (Bensaid v UK (App no. 44599/98)) as well as common sense. The Medical Foundation complained about this assertion, stating that:
Those who suffer from post-traumatic stress disorder have their symptoms exacerbated whenever memories of the trauma are triggered... To return the person to the environment in which they were traumatised may expose them to constant reminders, thus causing a catastrophic deterioration in their psychological state. For the Secretary of State to send such a person to a situation where their memories will be repeatedly triggered is unacceptable and inhuman in the article 3 sense...
In our opinion knowingly aggravating depression, post traumatic stress disorder and mental illness may constitute inhuman and degrading treatment. (Letter from Hopkins and Peel, dated 12 February 2002).
...we share your view that circumstances may arise in which it may be possible to demonstrate that the United Kingdom would be in breach of its obligations under Article 3 to return a person suffering, for example, from post-traumatic stress disorder to their home country. In short, the views set out in the offending paragraph do not reflect the policy of the Secretary of State.
(Home Office instructors) will emphasise to caseworkers that bald general statements of the type you identified are not appropriate in this very complex area of caselaw.
Article 3 ECHR
1.78A The Home Office may fail to grasp the threshold for article 3 ill-treatment. In AA (Zimbabwe) v SSHD  EWCA Civ 149, the Court of Appeal dealt with the position of one returnee to Zimbabwe as follows:
"At the airport, she was, according to a report, subjected to a hostile interview during which she was struck across the mouth when she asked why the interviewers would not believe she was just a student. After about three hours of interview, she said that she had an uncle in the Zimbabwean national army. He was contacted and she was released. As she left, she could hear the shouts and groans of two other deportees. In paragraph 205 of its determination, the Tribunal said that the treatment to which this witness claimed to have been subjected did not amount to serious ill-treatment such as to engage Article 3. We have difficulty understanding why not. We agree that trivial violence to an interviewee might not engage Article 3. But Mr Nicol pointed to what was said by the European Court of Human Rights in Ribitsch v Austria (1995) 21 EHRR 273 at paragraph 38 about injuries deliberately inflicted on a person in police custody, as follows:
"The court emphasises that, in respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the rights set forth in Article 3 (art 3) of the Convention."
The brief account in relation to R31 does not give us the impression that, properly considered and in context, the violence was trivial..."
1.78B There is also little attempt to apply the Strasbourg caselaw as to the threshold at which conditions of detention will engage Article 3 to objective evidence of prison conditions in the country or origin. This has been considerably developed by the Strasbourg Court in recent times, particularly by reference to conditions of detention for asylum seekers in Greece – see in particular the Grand Chamber's decision in MSS v Belgium and Greece (App no. 30696/09). In Batayav v SSHD  EWCA Civ 1489, the Court of Appeal held that where the ECHR had found conditions of imprisonment or detention in a particular country to consistently breach Article 3, then:
There is in this type of case no burden on an applicant – in the nature of things there cannot be any burden – to show that he will be ill treated in a particular prison in such a manner as to engage art 3. The question is simply whether there are substantial grounds for believing that there is a real risk that if the Appellant is returned to the Russian Federation he will be subjected to degrading treatment such as to involve a breach of art 3. Kalashnikov, in my judgment, demonstrates that, prima facie, the answer to that question is that he will be subjected to such degrading treatment, and therefore his return to Russia is prima facie unlawful. (para 27).
Article 8 ECHR
1.79 Since the Immigration Rules were amended in July 2012 so as to introduce express provision for claims based on 'private life' (under para 276ADE) and 'family life' (under Appendix FM), refusal letters routinely base their consideration of any Article 8 issues around a consideration of whether a person can meet the requirements of the Immigration Rules, with only minimal (if any) consideration of whether a claim under Article 8 may succeed on the basis of established jurisprudence even if it does not meet the requirements of the Rules.
1.79A Although there have been many cases on this, it is now clear that this approach is flawed. It is of course necessary to consider whether an individual can succeed under the Immigration Rules, but if she cannot, the question for the decision maker (whether the Home Office or the Tribunal) is still whether or not the decision is a disproportionate interference with Article 8 rights. In MM (Lebanon) & Others  EWCA Civ 985, Aikens LJ said (with the agreement of the other members of the Court of Appeal):
Where the relevant group of IRs , upon their proper construction, provide a "complete code" for dealing with a person's Convention rights in the context of a particular IR or statutory provision, such as in the case of "foreign criminals", then the balancing exercise and the way the various factors are to be taken into account in an individual case must be done in accordance with that code, although references to "exceptional circumstances" in the code will nonetheless entail a proportionality exercise. But if the relevant group of IRs is not such a "complete code" then the proportionality test will be more at large, albeit guided by the Huang tests and UK and Strasbourg case law.
1.79B This means that in cases in which the requirements of the Immigration Rules are not met, decision makers should still consider the five questions set out by Lord Bingham in R v SSHD, ex parte Razgar  UKHL 27, namely:
1. Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
2. If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
3. If so, is such interference in accordance with the law?
4. If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
5. If so, is such interference proportionate to the legitimate public end sought to be achieved?
1.79C Where family life between adult relatives other than partners is in issue, the Home Office still trot out standard paragraphs relying on the case of Kugathas v SSHD  EWCA Civ 31 to argue that there is no 'family life' for article 8 purposes between any relatives other than spouses and parents and their minor children. The difficulty is only added to by the fact that the 'exception' in Appendix FM which is supposed to protect Article 8 family life rights only applies to cases involving partners and parents/children. Home Office decision makers fail to recognise the particularly exceptional facts of Kugathas (he was an adult claiming that his removal from the UK would disproportionately interfere with his family life with his adult relatives who lived in Germany) or to properly apply the correct test of 'real and effective' family ties to the facts of the case. See Senthuran v SSHD  EWCA Civ 950 for criticism of this approach. This pattern is particularly striking in the case of young adults who have continued living with their families after turning 18: the Court of Appeal has pointed out that family life is not "suddenly cut off" when a child reaches his majority: SSHD v HK (Turkey)  EWCA Civ 583. In Ghising (family life - adults - Gurkha policy)  UKUT 00160 (IAC), the Upper Tribunal from para 50-62 reviewed the Strasbourg jurisprudence and emphasised the need for a fact-sensitive approach to this question in every case, but noted that the Strasbourg court has placed emphasis in the case of young adults on "whether or not the adult child has founded a family of his own" (para 61).
1.79D In cases where reliance is placed on private life, it is now well-established that in the case of long-term residents, and particularly those who have been present in the UK since their childhood, removal from the UK will interfere with their right to respect for their private life because of the ties which the person will have built up with the community around them.
1.79E In the assessment of proportionality the Tribunal will now be bound to apply ss. 117A-117D of the 2002 Act, inserted by the Immigration Act 2014 from 28 July 2014. The Court of Appeal has held that these provisions apply whenever any court or tribunal is considering the proportionality of an interference in Article 8 rights after that date, whenever the original decision was made or appealed against (YM (Uganda) v SSHD  EWCA Civ 1292). Section 117A requires the decision maker to "have regard" to the considerations in s. 117B in all cases, and to those in s. 117C in cases involving the deportation of "foreign criminals". Section 117B states that:
(1) The maintenance of effective immigration controls is in the public interest.
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English—
(a) are less of a burden on taxpayers, and
(b) are better able to integrate into society.
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons—
(a) are not a burden on taxpayers, and
(b) are better able to integrate into society.
(4) Little weight should be given to—
(a) a private life, or
(b) a relationship formed with a qualifying partner,
that is established by a erson at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
(6) In the case of a person who is not liable to deportation, the public interest does not require the person's removal where—
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and
(b) it would not be reasonable to expect the child to leave the United Kingdom.
A "qualifying child" is one who is either British or has lived in the UK for seven years or more, and a "qualifying partner" is one who is British or settled (s. 117D(1)).
Section 117C lays down a framework for assessing the proportionality of deportation in cases involving "foreign criminals", which is reflected in Part 13 of the amended Immigration Rules.
1.79F Although it accepts that the Rules and ss. 117A-D are not conclusive of the assessment of proportionality, the Home Office's guidance adopts the extraordinary position that the 2014 Act has effectively wiped the slate clean, and that all existing Article 8 case law is now irrelevant to the assessment of proportionality. Chapter 13 of the IDIs 'criminality guidance in Article 8 ECHR cases' advises that:
2.8.1 Decision-makers must not make decisions on the basis of case law established before commencement of section 19 of the Immigration Act 2014 (28 July 2014) or refer to such case law in decision letters. Decisions must be taken solely on the basis of the Immigration Rules, which Part 5A of the 2002 Act underpins. The courts will develop new case law in relation to the public interest statements.
2.8.2 Where a case is decided outside the Immigration Rules (e.g. where the foreign criminal is an EEA national or deportation is pursued solely because of one or more overseas conviction), the decision must not refer to case law, and must explain that the Immigration Rules have guided the consideration because they reflect Parliament's view of the balance to be struck between an individual's right to private and family life and the public interest.
1.79G This position is clearly untenable and, while bound to consider ss. 117A-D, the Home Office and the Tribunal are still bound by s. 6 of the Human Rights Act to ensure that their decisions are compatible with Convention rights, and by s. 3, to interpret these sections so as to render them compatible with Article 8 unless it is impossible to do so, and in interpreting Article 8, they are bound by the case law of the House of Lords/Supreme Court, Court of Appeal and Upper Tribunal. S. 117A only requires the Tribunal to 'have regard' to the considerations in ss. 117B-C and it is clearly entitled to take a different approach from that mandated or suggested by those provisions where necessary to ensure compliance with the Human Rights Act.
1.79H In non-deportation cases, the IDIs on 'Family life (as a Partner or Parent) and Private Life: 10 year routes' similarly advise case workers that there is no need to refer to case law when refusing an Article 8 claim which is certified as clearly unfounded, or where the Home Office has decided that the paragraph 353 test for a fresh claim is not met. It advises case workers to consider whether there are 'exceptional circumstances' in cases in which the requirements of the Immigration Rules are not met, and in doing so to take account of all relevant factors, including the following:
The best interests of any child in the UK affected by the decision. The decision maker must refer to Section 11 of this guidance for further guidance on the consideration of the best interests of a child.
• The nature of the family relationships involved, such as the length of the applicant's marriage and how frequently they have contact with their children if they do not live with them. What evidence is there that the couple do or do not have a genuine family life?
• The immigration status of the applicant and their family members. The decision maker should take into account the circumstances around the applicant's entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they were in the UK unlawfully? Family life formed in the knowledge that their stay here is unlawful should be given less weight (when weighed against the public interest in their removal) than family life formed by a person lawfully present in the UK.
• The nationalities of the applicant and their family members. The nationality of any child of an applicant is a matter of particular importance given the intrinsic importance of citizenship, and the advantages of growing up and being educated in their own country.
• How long the applicant and their family members have lawfully lived in the UK, and how strong their social, cultural and family ties are with the UK.
• The likely circumstances the applicant's partner and/or child would face in the applicant's country of return. It is relevant to consider how long the applicant resided in the country of return and what social, cultural and family ties they have retained with that country, as well as the degree of exposure their partner and/or child has had to that country and to its language and culture.
• Whether there are any factors which might increase the public interest in removal, for example where the applicant has failed to meet the suitability requirements because of deception or issues around their character or conduct in the UK, or the fact that they do not speak English or are not financially independent.
• Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the Rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life should be taken into account. Cumulative factors weighing in favour of the applicant should be balanced against cumulative factors weighing in the public interest in deciding whether refusal would be unjustifiably harsh for the applicant or their family.
When you are analysing the refusal letter you should assess the extent to which the Home Office has followed this guidance and taken account of all of these factors. You will need to explore with your client whether any of these factors apply which have not been considered by the Home Office, and whether there are any other relevant factors.
1.79I Since 2 November 2009, the UKBA has been under an express duty by virtue of s. 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children. This means that the best interests of children must be a primary consideration in any decision making which affects those interests. Where those children are British citizens, their interests must be given particular importance: ZH (Tanzania) v SSHD  UKSC 4. A decision will be unlawful where it does not consider, at least in substance, the best interests and welfare of any children affected by it – as will any decision by the Tribunal on appeal: DS (Afghanistan) v SSHD  EWCA Civ 305.
1.79J The Home Office's position is that in general, the requirement to consider a child's best interests is met by consideration of paragraph EX.1 of Appendix FM, which entails considering whether it would be reasonable to expect a child who is either a British citizen or has lived in the UK for 7 years or more to return to her (or her parent's) country of origin. The IDIs on Family and private life envisage that outside of Appendix FM a child's best interests will only be considered where there are "exceptional circumstances", and advise caseworkers that:
"Exceptional" does not mean "unusual" or "unique". Whilst all cases are to an extent unique, those unique factors do not generally render them exceptional. Furthermore, a case is not exceptional just because the requirements of family and/or private life Immigration Rules have been missed by a small margin. Instead, "exceptional" means circumstances in which refusal would result in unjustifiably harsh consequences for the applicant or their family, such that refusal of the application would not be proportionate. That is likely to be the case only rarely.
This is too narrow an approach. It is always necessary to consider where a child's best interests lie, and then to decide whether the interests of immigration control (or the public interest in deportation, as the case may be) outweigh those interests. In EV (Philippines) v SSHD  EWCA Civ 874 the Court of Appeal gave the following guidance:
34 In determining whether or not, in a case such as the present, the need for immigration control outweighs the best interests of the children, it is necessary to determine the relative strength of the factors which make it in their best interests to remain here; and also to take account of any factors that point the other way.
35 A decision as to what is in the best interests of children will depend on a number of factors such as (a) their age; (b) the length of time that they have been here; (c) how long they have been in education; (c) what stage their education has reached; (d) to what extent they have become distanced from the country to which it is proposed that they return; (e) how renewable their connection with it may be; (f) to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and (g) the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
36 In a sense the tribunal is concerned with how emphatic an answer falls to be given to the question: is it in the best interests of the child to remain? The longer the child has been here, the more advanced (or critical) the stage of his education, the looser his ties with the country in question, and the more deleterious the consequences of his return, the greater the weight that falls into one side of the scales. If it is overwhelmingly in the child's best interests that he should not return, the need to maintain immigration control may well not tip the balance. By contrast if it is in the child's best interests to remain, but only on balance (with some factors pointing the other way), the result may be the opposite.
37 In the balance on the other side there falls to be taken into account the strong weight to be given to the need to maintain immigration control in pursuit of the economic well-being of the country and the fact that, ex hypothesi , the applicants have no entitlement to remain. The immigration history of the parents may also be relevant e.g. if they are overstayers, or have acted deceitfully.
1.79K In cases where the decision made is that the asylum seeker should be removed under s. 10 of the Immigration and Asylum Act 1999, the Home Office was previously bound to consider the exercise of the discretion to remove by reference to the factors in paragraph 395C of the Immigration Rules, It will be relatively unusual for a case which does not succeed under Article 8 to succeed under para 395C as the factors there identified are all likely to be relevant to the judgment on proportionality of an interference in family or private life under Article 8. However, the Tribunal made clear that a removal decision which fails to consider para 395C will result in the appeal being allowed on the grounds that the decision is not in accordance with the law: EO (Deportation appeals: scope and process) Turkey  UKAIT 00062. Even where it has been considered, the Tribunal has jurisdiction to exercise the discretion for itself: EO (Turkey) and R (Mirza and Others) v SSHD  EWCA Civ 159. In Khanum & Others (paragraph 353B)  UKUT 00311 (IAC) the Upper Tribunal decided that it had no jurisdiction to consider the exercise of the discretion under paragraph 353B, which was inserted when paragraph 395C was removed, or to allow an appeal on the grounds of a failure by the decision-maker to exercise that discretion.
1.80 The Home Office has in the past given the following written assurance to the Asylum Rights Campaign which had 'expressed concern about Presenting Officers raising fresh reasons for refusal':
Presenting Officers are instructed to confine themselves to the reasons for refusal and the factual information which supports them, for example records of interview.
1.81 There is nothing to stop HOPOs dealing with new issues which arise at the hearing. However, HOPOs regularly seek to advance different (and even contradictory) reasons for refusal at the hearing from those disclosed in the refusal letter. Such conduct adds to the cost of preparing an appeal as a conscientious representative has not only to meet the case that has been made in the refusal letter, but whatever alternative case the HOPO might try to advance in the appeal. Fairness requires that an asylum seeker is given notice of the reasons for which her claim has been rejected, and she is entitled to the full reasons not just some of them. The Tribunal Procedure Committee has recognised the basic principle of fairness that "both parties should know the case that they had to meet" and the unsatisfactory omission from the previous 2005 Rules of any obligation on the Home Office to provide advance notice of the case it will put at the hearing. Rule 24 of the 2014 Procedure Rules therefore now requires the Home Office to provide a written statement setting out its reasons for opposing the appeal where it seeks to rely on different or additional reasons to those contained in the original decisions (see further para 9.3A-D). Where a CMRH is held, this ought to provide a good opportunity to press the Home Office to clarify the case you will have to meet, although HOPOs have often tried to decline to do so on the basis that they do not wish to 'bind' the HOPO at the full hearing, as if the HOPOs were independent actors rather than representatives of the Home Office (see chapters 6 and 9). Rule 24 demonstrates the unacceptability of this practice.