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Choosing an expert

Chapter number: 
21
Section: 
Expert Evidence
Last updated: 
30 November 2014
Best Practice Guide to Asylum and Human Rights Appeals
by Mark Henderson & Alison Pickup

Who is an expert?

21.1 The range of experts in asylum and human rights appeals is limited only by the range of experiences to which appellants have been subjected, and the range of allegations and assumptions which may be made by the Home Office and the courts.

21.2 Neither are there set criteria by which you can judge whether a person is qualified to be an expert witness. What matters is that by qualifications, study or experience, that person has acquired expertise beyond that to be expected of the Tribunal. In AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC), the Upper Tribunal rejected the Home Office's objection that an archaeologist did not qualify as a country expert 'as his professional expertise is as an archaeologist'. The Tribunal responded that 'We accept that he is not one who has conventionally come to be described as a 'country expert'; but his considerable personal and recent experience of Afghanistan, and of the political situation within that country, together with the objectivity that is implicit in his professional qualifications and experience, give the authority to his evidence' (para 116).

21.3 You should be able to contrast your expert's expertise with, say, the author of the refusal letter or the Home Office country report who (unlike, for example, the researchers of the Canadian documentation centre) commonly lack any recognised qualifications or expertise.

21.4 Academics will often have relevant expertise. Anthropologists, sociologists and geographers may be particularly able to assist with issues relevant to the establishment of a social group in an asylum case. They may comment upon risks from an appellant's own community for cultural or religious reasons, e.g. how a single mother will be treated by her community. Anthropologists may also be particularly helpful in exposing cultural misconceptions which underlie Home Office allegations of implausibility. An interpreter may be able to provide expert evidence as to the reliability of an apparent discrepancy.

21.5 A political scientist or modern historian might comment on the risks faced by a political party. Experts may be found amongst those who have worked with international organisations; human rights monitoring NGOs such as Amnesty and Human Rights Watch; or research organisations and 'think tanks' such as the Royal Institute of International Affairs (Chatham House). Journalists who have specialised in a particular country or region may also have built up substantial expertise, as may workers in the aid or development fields. The latter can be particularly useful in commenting on social and economic conditions (such as risk of destitution) or upon the availability of medical treatment. So may health professionals who have worked in the country of origin.

21.6 Some questions are of a similar nature to those which regularly arise in other jurisdictions such as the criminal courts. If an identity document is alleged to be forged, it may require forensic examination. If your client's claim to be the person in a particular photograph is rejected by the Home Office, you may want to consider facial mapping. Criminal lawyers can be a good source of experts in these areas.

21.7 Local lawyers may be useful not only for document verification but also for opinion as to the risks your client will run, or the conduct of particular state authorities (but see the discussion at para 16.8 as to the difficulty in finding an appropriate local lawyer).

21.8 It will be seen that you may need more than one expert. For example, you might need a political scientist to comment upon the risks that your client would be arrested for her political activities, and an anthropologist to advise upon whether life would be viable as a lone woman in her home village or to expose cultural misconceptions which have led the Home Office to doubt credibility. In the case (quoted at para 9.24) where the Home Office relied upon the crocodiles said to inhabit the River Zaire, you might have to instruct a zoologist.

21.9 That is not overkill. It is simply recognition of the huge variety of issues that human rights and asylum appeals (and the Home Office) may throw up. The court will only be assisted by an expert who possesses the right expertise. Rather than applying arbitrary limits, the aim should be to ensure that each expert is individually justified by the relationship between the issue in question and his expertise, having regard to the anxious scrutiny required of any asylum or human rights appeal.

21.10 But beware overkill. Satisfy yourself that the additional expert is really appropriate. That is not only on grounds of expense. Use of multiple experts on the same issue may backfire if their reports are seen as inconsistent. This will obviously be so if they give contradictory evidence, but inconsistency has been alleged simply because the experts do not all identify the same factors in reaching the same conclusion. If they are dealing with different issues from different expert perspectives, be clear about that.

21.11 You may want to call more than one expert from the same field to demonstrate a preponderance of expert opinion on a proposition that the Home Office disputes (just as you might wish to produce several human rights reports supporting the same line). That is often done in high profile cases, including Country Guidance cases, or those intended to set a factual precedent on a particular issue. But proceed with caution. While you must not seek to disguise real divergence of view, you must guard against creating an appearance of inconsistency where there is none.

Country of origin information analysts

21.11A In AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC), the Tribunal was presented with a report by the Asylum and Research Consultancy ('ARC'). The report was prepared by researchers who expressly disavowed any suggestion that they were giving expert evidence. They explained their methodology "as being to provide objective evidence available in the public domain so as to draw out salient issues that illustrate the country conditions ... in relation to people such as the appellant" (para 17).

21.11B The Tribunal welcomed the report and said that it did "see a useful role for reports such as the ARC report" which "affords a helpful way of profiling particular country guidance"; however

Such utility depends crucially, on at least two factors. One is that the COI analysts concerned have relevant skills and experience to undertake this work (we are entirely satisfied that both authors fulfil this criterion). The second factor is that those commissioning such a report must ask pertinent questions. In the context of country guidance cases, that makes it imperative that the legal representatives make sure their questions to COI analysts are clearly confined to the identified country guidance issue(s). (para 178)

21.11C It then laid down a number of conditions for the use of such reports (which it said had to be distinguished from expert evidence – para 185). It stressed the importance of the reports adhering to "established standards" on the collation of COI (para 181); of the authors – who disavowed any claim to be able to give an opinion – ensuring that they did not put any gloss on what the reports showed, even where that gloss is consistent with the sources; and thirdly, the report must "show that it has marshalled the evidence for, as well as against, a particular view" (para 182). Finally, it emphasised that the reports must "not seek to perform any advocacy role, but only seek to elicit relevant COI" (para 184).

Locating an expert

21.12 The first source of experts is the ILPA+EIN Directory of Experts. It is focussed on experts on countries of origin and transit who give evidence in asylum and human rights appeals. It can be found only on the EIN website. The Rights in Exile Programme of the International Refugee Rights Initiative maintains a list of Country of Origin Experts on its website at refugeelegalaidinformation.org.

21.13 General expert directories such as The Expert Witness Directory (www.legalhub.co.uk) and the UK Register of Expert Witnesses (www.jspubs.com) list vast numbers of experts, but relatively few experts on refugee producing countries. They may be a useful source, however, on the type of issues which arise across jurisdictions, such as document verification.

21.14 Posting queries to other lawyers can be an effective means of finding an appropriate expert. The Refugee Legal Group (http://groups.google.com/group/Refugee-Legal-Group-UK) has an active Google discussion group with a large membership. Personal contacts may also be useful, particularly if you know a representative with substantial experience of a particular country or a particular issue (eg gender or sexuality- based human rights abuses).

21.15 It is sometimes difficult finding an expert in the UK on an unfamiliar country or a particularly specialised issue. There is, of course, no need for your expert to be UK-based (though a foreign-based expert may make oral evidence impractical).

21.16 Organisations such as Amnesty and Human Rights Watch may be able to point you to relevant experts. So may voluntary agencies and campaigning groups, both particular to the country of origin and to the category of persecution. Journalists might be identified by searching the websites of newspapers which often include the email address for the author of the article (see chapter 18 for further details). Look for published works (through library catalogues, including the online British Library catalogue, or booksellers such as amazon.co.uk).

21.17 Recognised refugees can make valuable witnesses, particularly if, say, the refugee used the same escape method which is now being disputed by the Home Office. Ask your client about possible sources from within her community. But bear in mind that a judge needs to have confidence in an expert's ability to provide an opinion which is not rendered unreliable by reason of the expert's personal beliefs and affiliations (see paras 23.33, 23.39).

Assessing the expert

21.18 Talk the case over with the potential expert on a no-names basis before instructing him. Try to get a feel for his knowledge, understanding, and common sense. Watch for any tendency to be dogmatic. Ask him how he justifies his expertise on the particular question. If he is defensive, uncomfortable or awkward when asked to do this - or if he cannot give you a sensible explanation - then he is probably not the right expert (especially if you wish your expert to give oral evidence).

21.19 The response of most social scientists to being asked if they are objective will be that objectivity does not exist. (See similarly the Tribunal in Chinder Singh (G0055): 'No document is absolutely unbiased.')

21.20 But you will wish to ensure that the expert is not partisan in a way which will detract from the reliability of his expert evidence, for example because his evidence is likely to be tainted by his sympathy for, or antipathy towards the present regime. Inclusion in, for example, the ILPA+EIN Directory of Experts, is not a guarantee that the expert will not be biased against your client's case or even asylum seekers in general.

21.21 Sometimes, the expert may be concerned about the implications for his work, or even his safety, if he gives expert evidence. The expert may fear that to give evidence will put him in danger, particularly if he is based in the country of origin. But he may also have less extreme concerns about his ability to enter and work in the country of origin, or about his, or his organisation's relationship with the local authorities, particularly if he is involved with aid or development. In those circumstances, you will wish to help him assess the risks, and if they are real, consider making an application to the Tribunal that the public be excluded from the hearing or that he not be identified in the determination. This has been done in recent Zimbabwean Country Guidance cases in particular (see para 32.11).

21.22 Ask for a CV. The following will be of interest:

• Publications, especially recent and relevant ones.

• Journalism, particularly for media with a reputation for impartiality.

• Advising national or international bodies, and reputable NGOs.

• Obviously if an expert has at any stage advised the Foreign Office, or if the Home Office has relied upon their work, that will be of particular interest. The Canadian independent documentation centre, DIRB, is among foreign organisations perceived by the Tribunal as reliable.

• Academic discipline, postings and research, and work with research organisations and think tanks.

• Relevant work with reputable NGOs, particularly human rights monitoring but also in the aid and development fields.

• Time spent in the country (but see the next paragraph).

21.23 There is considerable misconception on the part of the Home Office and some judges about the relevance of recent country visits. HOPOs will often submit that an expert is unreliable simply because he has not visited the country recently - apparently unaware that many authors of the Home Office country reports have never visited the country at all!

21.24 Professor Anthony Good's study of expert evidence in this jurisdiction (Undoubtedly an Expert? Anthropologists in British asylum courts, The Journal of the Royal Anthropological Institute, Volume 10, Number 1, March 2004') notes that:

HOPOs also sometimes seek to discredit absent experts on the naively empiricist grounds that they have not been in the country concerned recently... There are of course circumstances where having recently conducted one's own field research would make a crucial difference, but having merely visited a country recently is of very limited significance. In general, if an expert has been accepted as such on the basis of a CV demonstrating prolonged study of and broad knowledge about a particular country or region, it hardly matters where they happened to be when reading or assessing a particular document or news report.

21.25 If an expert has been able to go to oppressed areas and interview people in circumstances similar to the appellant, that will of course be intensely valuable. But Home Office 'fact-finding missions' consisting solely of visits to government and NGO offices in the capital city illustrate the limited value of many country visits (if indeed, the Home Office 'fact finding mission' sets foot in the country at all – in Sufi and Elmi v UK the Government relied on a fact finding mission purportedly to Somalia which was in reality based on research carried out mainly in Kenya, and which had never entered Somalia ). An expert may be able to monitor, investigate, and interpret relevant developments as or more effectively from London than he can from an international hotel in the country's capital. He applies expertise he may have built up over decades to interpret that information and place it in its proper context. An expert may also, of course, have been refused entry to oppressive countries because of his work, he may fear that the regime would seek to exploit any visit, or it may simply be too dangerous to visit. In SW (lesbians – HJ and HT applied) Jamaica CG [2011] UKUT 251 (IAC), the Tribunal dismissed the Home Office's objections to an expert's report on the grounds that he had lived outside Jamaica since 2001 (although he continued to visit), observing that:

As regards knowledge of a country, the Tribunal has also stated in key cases that to be an expert one does not necessarily have to live there or to visit regularly. (para 88)

21.25A In SW Jamaica [2011] UKUT 251 (IAC), the Home Office also urged the Tribunal to place no weight on the expert report on the grounds that the expert was not impartial "in the light of his long career as a human rights activist and campaigner, his vigorously expressed criticism of the Jamaican government, in language such as to call into question his objectivity, and the death threats he received in 2001, as a result of which he no longer lived in Jamaica, which [the Home Office barrister] submitted must also have made it impossible for him to be objective about Jamaican government and society." (para 56). Again, the Tribunal dismissed these concerns:

...as the Tribunal has stated on many occasions, the mere fact that someone is a human rights activist does not entail a lack of objectivity (para 88)

21.26 Also of relevance will be any experience on the part of the expert in giving expert evidence by way of written reports and/or oral evidence. Past experience means that you can expect some understanding of the role he is expected to play and how to frame a report for litigation. However, the inadequacies of some instructing representatives mean that this cannot be assumed. If he is otherwise the right person, then you should not be put off by absence of previous experience as an expert. (Indeed, one sometimes finds an unjustified suspicion of experts on the part of the Home Office, and even the Tribunal, simply on the basis of a long track record of giving expert evidence in this jurisdiction.) What lack of such experience will alert you to is the need to give the fullest guidance to enable him to perform his role properly (see the following chapter).

21.27 A past record of giving expert evidence can also provide an opportunity to assess his abilities. Ask him which representatives he has worked for in the past, and whether he is aware of any previous judicial comment on his work.

21.28 Where you trust a representative who has previously instructed him to give you an accurate assessment, seek one. You may also be able to obtain from these representatives copies of the determinations in the cases where he has given evidence (first instance determinations are generally 'unreportable' and do not appear in any public database - see chapter 29 ).

21.29 You can perform a search on the expert's name on the EIN and other caselaw databases to check for comment on the expert in reported determinations and higher court caselaw. When considering adverse comment, bear in mind the comment elsewhere in this section that badly presented expert evidence may be the fault of the instructing representative rather than the expert (see e.g. the comments in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC), in which the Tribunal accepted that problematic parts of the experts' report were largely excused by defects in the formulation of the questions posed by their instructions: paras 169; 175). The Tribunal has been known more than once to change its mind about an expert when he has appeared before it in person. Rejection of expert evidence may also have been successfully appealed. (Note also the Tribunal 's warning in Cherbal v SSHD [2002] UKIAT 02014 as to the caution judges must exercise before dismissing an expert's report because similar evidence from him was not accepted in an earlier case) as well as the comment in LP (LTTE area - Tamils - Colombo - risk?) Sri Lanka CG [2007] UKAIT 00076 that 'In simple terms an "expert" is only as good as her or his last report'.

21.30 Finally, check practicalities:

• fees (note that it is inappropriate for an expert, given his overriding duty to the court, to accept a fee which is contingent on the nature of the evidence or the outcome of the appeal);

• how long he will require to produce the report;

• if applicable, whether he will be prepared to give oral evidence and if so, his availability and fees for doing so.

21.31 You should consult your client where she is going to be interviewed by the expert (most commonly by medical experts but also where the expert is determining nationality/ethnicity - see para 23.22). Illegitimate discrimination on grounds of race, gender, sexual orientation, religion, or disability when choosing an expert is prohibited by the Law Society's Anti-Discrimination Code and the Bar Code of Conduct. This means that you will have to judge whether complying with a request by a client to take account of such grounds in choosing an expert is illegitimate discrimination or legitimate concession to her particular vulnerability.