Analysing the refusal letter

1.0 This chapter discusses the substantive decision refusing your client's application for international protection or human rights claim, which normally carries a right of appeal to the First-tier Tribunal under section 82 of the 2002 Act. The Nationality and Borders Act 2022 (NABA 2022) provides for a separate route of appeal directly to the Upper Tribunal under a new section 82A of the 2002 Act in some cases where the appellant is subject to a Priority Removal Notice, however, in early March 2023, after the first reading of the Illegal Migration Bill, the Ministry of Justice informed the Tribunal Procedures Committee that this provision would not be brought into force, at least in the short term. The Illegal Migration Bill, which is not yet law, is not covered in detail in this edition (although see the Introduction for a brief overview of some of the far-reaching changes proposed).

Introduction: the quality of Home Office decision-making

1.1 The disturbing quality of Home Office decision-making in the context of international protection has been highlighted by a number of credible organisations. As summarised in a report by Freedom from Torture and a number of other authors, Lessons not Learned: the failures of asylum decision-making in the UK (September 2019):

[Lessons not Learned] charts a 15-year history of longstanding criticisms levelled against the Home Office. The analysis shows a convergence of views on the fundamental causes of poor decision-making, including the unrealistic and unlawful evidential burden placed on applicants and a starting point of disbelief, with a devastating impact on the individuals involved.

As noted in that report, concern about the quality of Home Office refusal letters is long standing and led, in 2004, 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 (the Quality Initiative Project, which ran between 2004 – 2009). UNHCR 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). Concerns about the quality of Home Office decision-making persist despite the UNHCR's assessment and feedback process over a number years (reports under the Quality Initiative Project were published in January 2007, March 2008 and April 2009 and under the follow-up UNHCR scheme, the Quality Integration Project, in (August 2010 and June 2013). The Lessons not Learned report noted that the Home Office's list of failures in asylum decision-making "is compounded by the failure or refusal of the Home Office to act on many of the recommendations made. The problems have therefore been recurrent and persistent."

The Tribunal has emphasised the importance to the effective operation of the appeal process of proper decision making by the Home Office. In Horvath v SSHD (17338) [1999] 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 [2011] 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 [the Home Office] will be able to learn from the problems identified in this case' and referred the Home Office 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).

1.1B The asylum success rate on appeal has grown steadily since 2004 (19%) to 50% or over since 2019 with typically around three-quarters of applicants refused asylum appealing that decision. The most recently quarterly statistics (January – March 2023) show a success rate of 51% for protection appeals and 52% for human rights appeals. Whilst appeal success rate is a somewhat crude measure of the standard of Home Office decision-making, since decisions may be over-turned on appeal for reasons other than the poor quality of decision-making (such as, significantly, new evidence only available before the Tribunal), its relevance is supported by the number of reports critical of Home Office decision-making. For example, in addition to those cited above, in 2015, the Independent Chief Inspector of Borders and Immigration raised the issue of the quality of decision-making in respect of asylum cases in reviews in 2015, 2017 and 2021 ('An Inspection of Asylum Casework: March – July 2015'; 'An inspection of asylum intake and casework: April – May 2017'; 'An inspection of asylum casework: August 2020 – May 2021'). In an evaluation of the Quality Integration Project published in July 2017, UNHCR noted the increase in both the number of decisions being appealed and the success rate as indicative of the continuing need for improvement in the quality of Home Office decision making.

1.1C The Home Office has defended its record on appeal by reference to the ability of appellants to rely on appeal on evidence that was not before the Home Office decision-maker, which will often include expert country or medical evidence and which may have an important impact on the merits of the case. In January 2014, following consultation with stakeholders, HMCTS published The Fundamental Review of the First-tier Tribunal Immigration and Asylum Chamber, which made a series of recommendations for the Tribunal. These included measures to address what, in the Home Office's view, explained the consistently high level of success on appeal by providing for the appellant's appeal bundle – which would include any new evidence - to be reviewed by the Home Office prior to the appeal. This Home Office review stage is now part of the standard directions for all appeals commenced on or after 22 June 2020: see Presidential Practice Statement No 1 of 2022.

1.1D Unless the Home Office engage meaningfully in the review, however, it makes little difference to appeal outcomes. In its response to the Ministry of Justice's Call for Evidence on Immigration Legal Aid Fees and the Online System, ILPA noted that its members had reported a decline in quality in Home Office reviews from the initial pilot which ran in selected hearing centres in 2019. An HMCTS research report published in September 2022 observed that between the national roll-out of the reform process in January 2020 and July 2021, 28% of appeals were withdrawn at the review stage. However, it also observed that there is considerable variation on a monthly basis with withdrawals ranging between 15% and 45%. It also observed variation by region, with the withdrawal rate being highest in London (43%) and lowest in the North East and North West (17%).

1.1E As for primary Home Office decisions, despite the volume of reports criticising Home Office asylum decision-making, it does not appear likely that standards will dramatically improve in coming years. The Lessons not Learned report concluded that given the nature of the Home Office's failings, root and branch reform is required. There appears to be little appetite for this within the Home Office and there was certainly no indication in the 'New Plan for Immigration' consultation in 2021 that the Home Office appreciated the need for improvement in the quality of its decision making. Indeed, given the political pressure to reduce net migration, arguably there is an inherent tension within Home Office decision-making. The increasingly "hostile environment" towards refugees and asylum seekers was cited by NGO respondents to the 2017 QIP evaluation as a critical reason for the project to continue. Coupled with austerity cuts, caseload pressures (which have risen further as a result of Brexit, the Covid-19 pandemic, and the war in Ukraine) and the ever-increasing complexity and volume of immigration and asylum law, the factors militating against getting it right first time are legion.

1.1F As at December 2022, there was a backlog of 92,601 asylum claims made before 28 June 2022 (the date on which the NABA 2022 entered into force). On 13 December 2022, the Prime Minister committed to clearing the backlog of so-called 'legacy' cases (that is, those made before 28 June 2022) by the end of 2023. As discussed in chapter 2, the measures to clear the backlog include 'streamlined asylum processing', in which a decision may be taken on the basis of responses to an asylum questionnaire, in respect of claimants from five selected high asylum grant rate countries. However, this only accounts for a fraction of the cases in the backlog, which are anticipated to be subject to the standard Home Office status determination practices.

The purpose of a refusal letter

1.2 The purpose of the refusal letter is to enable an applicant to understand why she has been rejected and for the Home Office to set out its case for the appeal. The Tribunal has stated that:

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))

1.2A The Court of Appeal in SI (India) v Secretary of State for the Home Department [2016] EWCA Civ 1255 held that refusal letters lacking in clarity and reasoning such that an applicant could not understand the reasons for which her application had been refused, 'cannot withstand scrutiny by this court.' The Court reiterated that:

Decision letters should set out with clarity a) the facts determinative of the application, b) why the applicant's evidence has been rejected and c) the reasons for coming to the conclusion reached.

1.3 Unfortunately, many refusal letters fail to comply with these requirements. As the reports cited above testify, the Home Office's guiding principle is more often to 'dispute everything' as 'not credible', often over several pages. The online appeals procedure requires the Home Office to provide a counter schedule of issues in its review decision, with the aim of attempting to narrow the issues prior to the hearing. The effective of this requirement is diluted, however, if the Home Office fails to engage meaningfully with the review as has been reported by ILPA members.

1.4-1.7A […]

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.

Initial steps

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.

1.9A Be aware of the date of your client's asylum application and the procedural consequences that flow from that. Asylum claims lodged on or after 28 June 2022 will be subject to changes introduced by the NABA 2022. Of most relevance to the Home Office's decisions themselves are the following:

• Late evidence provisions – section 18 provides a power for the Home Office to serve a person who has made a protection or human rights claim with an 'evidence notice' requiting submission of any evidence in support of the claim before a certain date and section 26 states that 'minimal weight' should be given to evidence deemed to be provided after that date in the absence of 'good reasons.'

• Credibility provisions – section 19 amends section 8 of the 2004 Act to include a further new provision on late evidence and a new provision on behaviour not in 'good faith'.

• Re-interpreting the Refugee Convention provisions – section 32 creates a new split standard of proof whereby historical facts are to be determined on the balance of probabilities and future risk on the reasonable degree of likelihood standard; section 33 reimposes the cumulative test rejected in the cases of K & Fornah [2006] UKHL 46 and DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC); and section 38 amends section 72 of the 2002 Act to lower the threshold for the engagement of the 'particularly serious crime' provisions

1.9B The detail of the provisions of the NABA 2022 on the differential treatment of refugees and admissibility are outside the scope of this Guide.

1.9C You will also need to be mindful of the date on which your client arrived in the UK, as some (but not all, thanks to a late Government concession) of the Illegal Migration Act is intended to have retrospective effect and apply to those who arrived on or after 7 March 2023, while the balance will apply to those who arrived on or after 20 July 2023 (the date when the Act was passed). If your client arrived through 'irregular' means after those dates, they will be subject to some of the Act's provisions, even if their asylum claim was made before it was enacted.

1.10 The initial application to the Home Office is also outside the scope of this guide (whilst now some years old and out of date in some respects, for a useful general reference see Making an Asylum Application: A best practice guide (ILPA, 2002)). Whoever represented your client at the application stage 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 audio record asylum interviews. 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 recording (see chapter 13). 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.

Challenging reasons for refusal

Standard of proof

1.10A Section 32 of the NABA 2022 changes the standard of proof in asylum claims. This will affect asylum claims made on or after 28 June 2022. In Karanakaran [2000] EWCA Civ 11 the Court of Appeal confirmed that the lower standard established by the House of Lords in Sivakumuran [1987] UKHL 1 (that is, a "reasonable degree of likelihood" or "real risk" rather than the normal civil standard of the balance of probabilities) applied both to establishing past facts and future risk. The aim of section 32, which introduces a split standard of proof whereby past facts will be established on the balance of probabilities, appears to seek to turn back the clock to before Karanakaran. The Home Office's API Assessing Credibility and Refugee Status post 28 June 2022 says the following on the two stage standard of proof:

…[The] assessment under the first stage is made using the 'balance of probabilities' standard. This means you must consider whether the facts or evidence being presented to you are 'more likely than not' to be true. However, it is important to distinguish this from the higher 'beyond reasonable doubt' standard of proof. You do not need to be 'certain' or 'convinced' of the truth of an account. It is important that your decision is clear throughout that you have applied the appropriate standard of proof when considering whether to accept material facts.

[…]

The second stage of the test, the risk on return, must be assessed to a 'reasonable likelihood' standard of proof, a lower threshold than the 'balance of probabilities' used in the first stage. This is because there is a greater degree of uncertainty in assessing the likelihood of a future risk occurring than there is establishing material facts. Whereas the first stage of the assessment is a question of looking at material facts; who a person is and what it is they actually fear, the second stage is more difficult to determine and there is an inherent degree of uncertainty in looking to the future, as opposed to assessing the past and present.

The lower standard of proof also reflects the gravity of the potential consequences to a claimant if the assessment is wrong. By the time the second stage test is applied, we have accepted that a claimant has a subjective fear of persecution for a Convention reason. It is therefore important that this is borne in mind when looking at the risk they face on return.

1.10B The revised standard of proof in NABA 2022 will only apply to asylum claims and, therefore, claims based on Article 3 ECHR will remain subject to the lower standard in respect of establishing past facts. Given that the Home Office refusal letters do not usually contain separate consideration of the facts for Article 3 purposes, it is unclear how decision-makers will respond to the new distinction between asylum and Article 3 cases in practice.

1.10C The UK remains subject to the Refugee Convention, which requires that a refugee has a 'well-founded' fear of persecution. Whether section 32 of NABA 2022 complies with the autonomous meaning of the standard in the Refugee Convention will be a question which will, no doubt, be litigated.

Credibility

1.10D 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.

1.10E 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 judge to conclude that the sensible persecutor or sensible victim would have done things differently. In Y v SSHD [2006] 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.

1.10F 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.

1.10G The Court of Appeal in MN v Secretary of State for the Home Department [2020] EWCA Civ 1746 made the following useful comment on the use of the words 'credibility' and 'plausibility' in asylum decision-making (per Underhill LJ at [127]):

The term "credibility" is used a good deal in the context both of asylum appeals and of decisions whether a person is a victim of trafficking, and we have detected a tendency to treat it as having some special technical meaning. But in truth it connotes no more than whether the applicant's account is to be believed. In making that assessment the decision-maker will have to take account all factors that may bear on that question. Likewise the term "plausibility" is not a term of art. To say that a particular account, or element in that account, is implausible is simply to say that it seems to the decision-maker to be inherently surprising, or the kind of thing that you would not normally expect to happen; and such an assessment will obviously feed in to the overall assessment of credibility, though the weight to be given to it will depend on the degree of unlikelihood and how confident the decision-maker can be about it. Perhaps both points are too obvious to need making; but if terms are used too regularly they sometimes get in the way of the process of common sense decision-making.

1.10H The distinction between 'credibility' and 'plausibility' and a warning against 'the danger of 'plausibility' becoming a term of art, yet with no clear definition or consistent usage' was again approved by the Court of Appeal in SR (Sri Lanka) v SSHD [2022] EWCA Civ 828.

a) Disputes about past facts: Discrepancies arising from Home Office interviews

1.11 Under current standard Home Office asylum procedures there are at least two Home Office interviews: the initial screening interview at or around the point at which the asylum claim is made followed by the much longer substantive interview. In some cases, there will be further interviews: when for example, there is a separate trafficking claim or where significant delay in the processing of the claim means that a new substantive issue arises at a later stage. Currently there is a significant backlog in asylum decision-making (according to the latest statistics, at the end of March 2023, there were 133,607 cases (relating to 172,758 people) awaiting an initial decision). The backlog means that there will be significant delay between the initial screening interview and the substantive interview in almost all cases. In 2014, the Home Office introduced a service standard to process 98% of straightforward asylum claims within six months. At the end of 2016, the number who had been awaiting an initial decision for more than 6 months increased by 143% (from 3,626 to 8,825) (National Asylum Statistics, 23 February 2017) and the standard was abandoned in May 2019. On 13 December 2022, the Prime Minister pledged to clear the backlog of asylum cases made before 28 June 2022 by the end of 2023. As part of this plan, as noted at para 1.1F above, on 23 February 2023, the Home Office introduced what it calls 'Streamlined asylum processing' which is intended for use in 'manifestly well-founded cases' where the initial claim was made before 28 June 2022. Guidance on Streamlined asylum processing states that the model encourages decision-makers to take positive decisions on claims without conducting a personal interview where it is appropriate to do so. It provides for case workers to dispatch an asylum questionnaire to claimants to seek further details about their asylum claim, including the reasons for claiming asylum, any information relating to exploitation, physical and mental health and the fear of what would happen if returned to the country of origin, and to take account of any changes in circumstances. A failure to fully complete the questionnaire and return it within the required timeframe may lead to claims being withdrawn. If your client's claim is deemed withdrawn by the Home Office following use of the Streamlined procedure, your remedy will be judicial review. See further Chapter 2.

1.11A For all cases, however, the first stage of the asylum 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 [2014] 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.

1.11AA Children do not undergo the same screening interview as adults but their asylum claims are registered by undergoing a 'welfare interview' (the information is recorded on a 'welfare form' ASL.5097). The API on Children's Asylum Claims states that children (unlike adults) should not be asked questions about their asylum claim at the initial encounter with the Home Office. This is by reference to para 352 of the Immigration Rules which states that a parent, guardian, representative or another adult who is independent of the Secretary of State and who has responsibility for the child must be present when an unaccompanied child is interviewed about the substance of their claim. The purpose of the welfare interview is, therefore, solely to obtain necessary bio-data for a meaningful booking in process and to identify any safeguarding or trafficking concerns. However, the API also says:

It may be that details or information relating to the substance of their asylum claim are nevertheless volunteered by an unaccompanied child on initial encounter or while the welfare form is being completed. Although this information can be recorded on the welfare form, asylum decision makers must never rely on information obtained from an interview where no responsible adult or legal representative is present unless this information has also been explored and raised with the claimant during the substantive asylum interview in the presence of a responsible adult or legal representative. The child must be given an opportunity to explain any related issues or inconsistencies. (p31)

You should be astute to any attempt in the decision letter to rely on comments made by a child on the substance of her claim without the presence of an independent adult without a full and proper opportunity being afforded to the child (in the presence of an independent adult) to explain any apparent discrepancy.

1.11B Following the screening interview (or welfare interview in the case of children), the case will be referred to the National Asylum Allocations Unit for allocation to a decision-making team within the Home Office and the asylum interview and a decision on the case will follow. Children are issued with a Statement of Evidence Form ('SEF') for self-completion. In the past adults were issued with SEFs but this is now uncommon, although sometimes a Preliminary Information Questionnaire ('PIQ') will be issued to adult asylum claimants. Where a SEF or PIQ is issued it must be returned to the Home Office by the deadline given (60 days for children, 10 working days for adults issued with SEF, 20 working days for a PIQ). In other cases, the next step is usually for a substantive interview to be arranged (still, somewhat confusingly, sometimes referred to as the SEF interview). There can be long delays between the initial registering of the asylum claim and the substantive interview and sometimes little notice is given once this is fixed. Insofar as possible, you should take a full statement beforehand.

1.12 Where a SEF or PIQ form is issued for self-completion, it is vital to take full instructions on the claim prior to filling it in. Unfortunately, some representatives complete the form based on hurried and unchecked instructions. 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, relying on YL (Rely on SEF) China [2004] UKIAT 00145, that because some events have been detailed, it follows that every event would have been detailed had it occurred. That case says (at [20]):

The asylum seeker is allowed to choose his own interpreter and obtain all the assistance he wants in order to complete the form. He is in control of how the form is answered. It is hard to imagine a fairer way to enable the claimant to set out his case. That being so, the Secretary of State, and, if it comes before him, an Adjudicator, is entitled to assume that it is right.

And, at [21]:

It is one of the core functions of legal representatives to take a client's instructions and faithfully reproduce them in an orderly and intelligible form. That can be a difficult and time consuming job but it is something that legal representatives really should get right.

1.13 If the claimant's answers at the asylum interview produce information that did not appear in a SEF/PIQ 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:

You must be aware that victims of torture or other forms of violence may have difficulties in recounting the details because of the sensitive nature of those experiences or the effect of traumatic events on their memory. (API on Asylum interviews, p 55)

The traumatic nature of torture means that particular care and sensitivity is required when interviewing those who claim to be victims of torture... You must be aware 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. A claimant may find talking about such experiences particularly difficult in the context of an official process. Those who have suffered at the hands of their own authorities may distrust officials in the UK, despite travelling to this country to seek refuge. All Home Office staff must be aware of this issue. Treating people with respect and adopting a professional and sensitive approach during the interview process will help to provide claimants with any reassurance they need… (API on Medical evidence in asylum claims, p19)

While the substantive asylum interview represents the applicant's main opportunity to disclose all relevant evidence, the disclosure of gender-based violence at a later stage in the determination process should not automatically count against their credibility. There may be a number of reasons why a claimant, or dependant, may be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family 'honour', or fear of family members or traffickers, or having been conditioned or threatened by them (API on Gender Issues, page 32)

There are many factors that can affect memory. A claimant may have come from traumatic or otherwise challenging situations and so it is possible that their account will not be consistent in every detail. You must always take the totality of a person's circumstances into account and consider any personal factors which may explain why a claimant's testimony is inconsistent with other evidence, lacking in some detail or there has been late disclosure of evidence. These factors may include, but are not limited to: • age • gender • sexual orientation or gender identity, • physical and mental health • variations in the capacity of human memory • learning difficulty or disability • emotional trauma • level of education • social status, culture and language • cultural differences including social and political backgrounds • feelings of shame • painful memories, particularly those arising out of sexual violence, torture and other serious harm • fear, including fear of officials in the UK • the passage of time • the context in which the events described took place We cannot expect the same outcomes and behaviour from different people; particularly when we are looking at people from different social, political and cultural backgrounds. Personal circumstances and cultural differences must always be taken into account when assessing the credibility of a claim. In line with this, it is important to clearly state in your decision any factors that affect a victim's ability to give clear and consistent evidence, and how you have considered these factors in relation to any inconsistencies or 'delayed disclosure'. These factors will also be impacted by the individual's personal circumstances and cultural differences mentioned above. (API on Assessing Credibility and Refugee Status in asylum claims lodged before 28 June 2022, p45)

1.14A The same guidance to decision-makers applies the more forcefully in relation to children:

It is not appropriate to draw an adverse credibility inference from omissions in the child's knowledge or account if it is likely that their age or maturity is a factor or if their own ability to construct an account or other similar reasons lead to those omissions.

In particular circumstances or cases where benefit of the doubt would be exercised, it should be exercised with due allowance for the child's understanding, for instance where a child is unable to provide detail on a particular element of their claim. ….

Decision makers must take account of what it is reasonable to expect a child to know in their given set of circumstances and in doing so taking account of their age, maturity, education and other relevant factors.

Decision makers must demonstrate as part of the decision making process consideration of any distinct factors taken into account during the assessment of credibility in a child's claim. This will also apply to behaviours that fall within Section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, including:

• the child's age and maturity at the time of the event and at the time of the interview

• mental or emotional trauma experienced by the child

• educational level

• fear or mistrust of authorities

• feelings of shame

• painful memories, particularly those of a sexual nature (API on Children's Asylum Claims, pp. 52-53)

1.15 This contrasts with some refusal letters which allege that the fact that someone has sought asylum in the UK in itself demonstrates that she can have no distrust of any UK official.

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.

1.18 It found the adjudicator's acceptance of the Home Office's credibility allegations to be unsatisfactory because

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 […]

1.19A The API on Asylum Interviews advises decision-makers to focus their questions in substantive interview on the 'key issues in the asylum claim' and to avoid unnecessary detail (pp 38-39):

• focus on material facts – you must:

…

o focus on facts which can be identified as key issues in the asylum claim in light of available country reports and case law

o be mindful that although claimants are required to establish their claim to be in need of protection, you must properly and thoroughly investigate key issues and ask relevant questions to help ascertain the material facts, the credibility of the account and the likelihood of future persecution to the required standard of proof

o avoid unnecessarily detailed, prolonged, and exhausting interviews…

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) [2014] 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:

I am/The officer is going to ask you some questions about your identity, family, background, travel history and some health and welfare questions. I/The officer will only ask you for a brief outline of why you are claiming asylum today…

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 substantive asylum interview record, the screening interview record does not even purport to be an accurate account of the interview. It will be apparent from the summary way in which 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 in any event 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. If your client's screening interview took place between March – November 2020, a period during which screening interviews were truncated as a response to the Covid-19 pandemic, there may be a further reason why the information recorded may be unreliable. You should also check with your client about the manner and quality of interpretation. Often this will be by telephone at screening interview.

1.20C The 'Statement of Evidence Form - Asylum Interview' (the asylum interview record) gives the following 'compulsory statement – to be read out at every interview':

This interview is your opportunity to tell us your reasons for claiming asylum. It is very important you do not withhold any information you believe to be relevant to support your claim. I will help you by asking you questions so that we have the information we need to make a decision in your case.

I will also, either during or after the interview, make any further enquiries necessary about the information you provide, the situation in your country and any other relevant matters.

If I do not understand your responses or need to clarify them, I will give you a chance to explain.

Some parts of your claim may be difficult to talk about but I will be asking questions to help you explain what happened to you, so it is important that you answer with as much detail as you can.

The information you provide about your reasons for seeking asylum will never be disclosed to your country's government or other authorities in your country.

If you want a break during the interview, please let me know. I may also suggest a break if I think we need to take one.

It is far from clear that all Home Office interviewers follow these prescriptions and any failures to do so should be raised at the interview (if you are present) or afterwards in representations once you have your client's instructions. A failure to follow this guidance reduces the weight that the Tribunal should place on any alleged discrepancies between your client's answers at substantive interview with the rest of her evidence.

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. The APIs recognise that this is inappropriate:

You must also explore in more detail if there is a significant lack of information or gap in the account. You should not seek every detail exhaustively, but you should remember that the credibility of an account cannot be dismissed on grounds of a lack of detail if the questioning during the interview did not attempt to bring out those details. (API on Asylum Interviews, p 39-40)

…an absence of detail cannot be held against the claimant if they were given little or no opportunity during their asylum interview to provide such detail or to clarify any inconsistencies in information which go to the core of the claim. (API on Assessing Credibility and Refugee Status pre 28 June 2022, p48)

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:

• testing of potentially significant adverse credibility findings – you must give the claimant the opportunity to:

o explain contradictions which become apparent in their answers

o explain or clarify any significant inconsistency with information previously provided in writing or at the screening interview

o clarify any statements that appear to be inconsistent with known country reports, appear to make no sense, or seem implausible

If you do not ask the claimant to explain a contradiction or inconsistency and the claim is subsequently refused on credibility grounds because significant elements in the account are considered untrue or implausible, there is a real risk that the decision will be flawed. (API on Asylum Interviews, p39)

The claimant's oral testimony, written statements and any personal documents relating to the material facts of the claim should be coherent and reasonably consistent, taking into account any underlying factors. There should be no significant or inadequately explained gaps or contradictions. Any differences between statements made at screening interview, in any written statements and at substantive interview should have been put to the claimant at interview, as should any conduct prior to the claim which may have a bearing on the claimant's general credibility (see 'benefit of the doubt'). The evidence should also be generally consistent with any statements made by family members or witnesses.

A significant inconsistency or contradiction means an incompatibility between or within evidence relating to the same point. You must distinguish major inconsistencies from minor ones and focus on those which matter. For example, a significant inconsistency might be if the claimant claims to have supported an opposition political party, but the witness statement indicates that they supported the government. Conversely, if the claimant says that they left home at around 09:00 am, but his wife's witness statement states that he left home at 09:30 am, it would not be necessary, in most cases, to explore this discrepancy. Such minor discrepancies, particularly if not explored, should not be considered as being material to determining the overall credibility of the claim. (pp48-49, API on Assessing Credibility and Refugee Status pre 28 June 2022)

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 often 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.

1.25B The current 'Statement of Evidence Form Asylum Interview' states that the interviewer will record the questions and answers and that your client will receive a copy of the transcript following the interview. The form also indicates that the interview will be audio recorded and that your client will receive a copy of the transcript / audio recording after the interview (the methods for distribution include being handed the transcript and/or audio recording after the interview, post and upload via secure electronic portal). Although there is a tick box indicating that your client has said that she understands the interpreter (and the Home Office interpreter personnel number is provided), the form says nothing at all about the quality of the interpretation. The box indicating comprehension of the interpreter appears at the beginning of the form and whilst the applicant is asked again whether she understood the questions at the end of the form, there is no further enquiry about the interpretation at the conclusion of the interview. It is therefore essential to consider the full contents of the interview record, including any observations recorded by the interviewing officer about your client's demeanour and/or evidence relevant to the conduct of the interview, including e.g. any indication of possible interpreting problems.

1.25C At the end of the form there is a space for the applicant to sign to confirm receipt of a copy of the interview notes and audio recording. As the majority of asylum interviews are taking place remotely, most applicants are not asked to sign any documents at the end of their interview. Instead, they are asked the following:

Concluding Questions

Have you understood the questions?

Is there anything you would like to add or clarify?

Are there any other reasons you wish to remain in the UK? This can include personal or family circumstances that you would like taken into consideration.

Are you still feeling fit and well?

Are any further evidence documents required to be submitted?

1.25D On previous iterations of the form there was another space 'for approval of contents of the copy of the interview record', but this no longer appears. This may still be relevant if dealing with asylum claims where there has been significant delay or in a case where a fresh claim has been made and where the Home Office seeks to rely on old interviews. The Applicant's signature here may be interpreted by the Tribunal as an indication that she 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) [2014] UKUT 00515 (IAC), this requirement to put inconsistencies reflects the basic common law requirement of fairness.

1.26B UNHCR identified many serious flaws in asylum interviews during its Quality Initiative Project which may be worth referring to in an appropriate case (see the Second Report to the Minister in 2005 at 2.3.7 and the Third Report, which focused on interviews). 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). A 2020 Freedom from Torture report Beyond Belief suggests these problems have not been fully addressed: it examines in detail persistent failings by the Home Office at asylum interviews including: a failure to apply the principles and standards for asylum interviews as set out in case-worker guidance; a failure to respond appropriately and sensitively to claims of torture; a failure to take account of the individual needs and circumstances of claimants; and a failure to create a positive and secure environment in which claimants are treated with respect and dignity. Overall, the report observed that there was an 'environment of disbelief, scepticism and suspicion that has crept into the interview room.'

b) Disputes about past facts: Allegations arising from other asylum claims & confidentiality

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). However, the API on Dependants emphasises, in relation to disclosure to family members, that informed consent must be obtained before disclosing information provided by one family member to another through a refusal letter or any other means. It advises caseworkers that:

There may be cases where it is considered appropriate and necessary to disclose evidence provided by one family member to another if this is the only way to properly investigate a material aspect of the claim that cannot otherwise be explored through methods that do not require such disclosure. It may also be considered appropriate and necessary to refer to evidence from dependants or other family members in the decision. Before doing so caseworkers must have due regard to confidentiality, data protection requirements and any evidence of individual protection needs relating to family members. Under the terms of the Data Protection Act it is important to obtain informed consent from all members of the family providing evidence as part of the claim before directly referring to such evidence during an interview or in any decision to refuse the claim. An applicant may have legitimate reasons why they do not give consent, such as a fear of violence from their partner, so careful consideration needs to be given to the evidence before citing failure to give consent as a credibility issue.(API on Dependants and former dependants, section 5.3)

This is consistent with guidance in the API on Asylum Interviews for opening the interview which requires interviewers to:

• explain that all information provided will be treated in confidence and that no asylum information will be disclosed to the authorities of the claimant's country of nationality or, if stateless, the country or territory of former habitual residence

• explain that information may be disclosed to other government departments or organisations to help them discharge their functions but nothing will be shared that may put the claimant or their family members at risk of persecution or serious harm (p32)

1.28 The policy applies regardless of whether the present claimant was previously a dependant on the other asylum seeker's claim. In the June 2013 report of its Quality Integration Project (see para 1.1), 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 (unless heard in camera), if its decision to refuse asylum was upheld. This freedom to disclose previously confidential information appears to embrace disclosure to other asylum seekers via their refusal letters (see Disclosure and confidentiality of information in asylum claims, pp13-14). As the Home Office accepts, any anonymity direction must in any case be respected (see further chapter 32). Its policy is anyway inconsistent with the Upper Tribunal's findings in VT (Article 22 Procedures Directive - confidentiality) Sri Lanka [2017] UKUT 00368 (IAC) that there is a general duty of confidentiality in asylum proceedings, which applies throughout the appellate procedure (see 32.4). You may need to warn your client about the risk that the Home Office may disclose information contained in documents filed and served for the purposes of a hearing.

1.30 Where confidential information has been included in a refusal letter in breach of the Home Office's confidentiality undertaking, the Home Office should not rely on this material. The caseworker guidance Disclosure and confidentiality of information in asylum claims states:

If…information was incorrectly disclosed, then you must not continue to rely on that information. The case must be reviewed to ensure that the decision will stand without the non-disclosable information and whether further consideration or investigation is necessary. (p19)

c) Lack of political sophistication

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.

1.33A The API on Gender Issues in the asylum claim expressly recognises this in the case of women:

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. …

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, pp 22-23)

d) Disputes about Past Facts: Implausibility

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 politically 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 If no background country 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. In the absence of reliance on background country evidence for these assertions, they amount to speculation which should be accorded little weight by the Tribunal.

1.35A Concerns about reliance on speculation were identified by the UNHCR in its reports on Home Office decision making during the Quality Improvement Project (see the second report at 2.2.9 and the third report at 2.3.6-2.3.7).

1.35B […]

1.35C The UK courts have also criticised this reliance on speculation as to plausibility. In HK v SSHD [2006] 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 [2005] 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".

1.35D Chadwick LJ added that:

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.

1.35E As such, as accepted by the Tribunal in KB & AH (credibility-structured approach) Pakistan [2017] UKUT 00491 (IAC), plausibility is a factor relevant to credibility but which "requires a certain degree of caution." The APIs say the following on plausibility:

The plausibility of an account is assessed on the basis of its apparent likelihood or truthfulness in the context of the general country information and/or the claimant's own evidence about what happened to them.

You must not base implausibility findings solely on your own assumptions, conjecture, or speculative ideas of what ought to have happened, what they might think someone genuinely fleeing for their life should have done, how you think a person would have behaved or how they think a third party would have acted in the circumstances. In addition, you must not conclude that a claim is implausible solely because the claimant was aware of the potentially serious adverse consequences of their actions if they had come to the attention of the authorities. …

While one element of the claimant's account may be found to be not plausible, this does not necessarily mean that the other material facts are not credible. Each material fact should be assessed separately for plausibility and then considered in the round for credibility.

…Underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected in Western countries. As to the actions of others, it is not inconceivable, for example, that a guard might allow a detainee to escape, or a sympathiser provide assistance, even at the risk of punishment. It is therefore important to explore the details and context of the escape or release at interview.

You must always have an open mind but must not accept the wildly improbable, and some assertions will be so implausible that no reasonably well-informed person could be expected to give them any credence.

(pp51-52 API on Assessing Credibility and Refugee Status)

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. This may happen where there is updated country information that post-dates the refusal decision but this is not invariably the case. For example, claims by Iranian Kurds that they are at risk due to a family member's involvement in pro Kurdish political activity are often refused by the Secretary of State, however, the Country Information and Guidance is clear in its policy summary that risk of persecution may attach due to family members of persons associated with Kurdish political groups. Another example is where refusal decisions continue to apply out-dated country guidance decisions without reference to their own country policy and information note. This was frequently the case in relation to Iranian Christian converts (until the Home Office country policy was changed in March 2018). The refusal decisions would rely on the old country guidance cases (FS and others (Iran – Christian converts) Iran CG [2004] UKIAT 00303 and SZ & JM – (Christians) [2008] UKAIT 00082) but fail to refer to more recent country of origin and information notes which stated, until replaced in March 2018, that persons who have converted to Christianity from Islam are at a real risk of persecution and a grant of asylum is likely to be appropriate. In the case of Iranian Christian converts, this problem is now largely resolved since the promulgation of the country guidance case PS (Christianity – risk) Iran CG [2020] UKUT 00046 (IAC), but it is worth checking the Home Office's own country of origin reports in cases where there is out-dated country guidance caselaw.

1.37A Errors in the Home Office's treatment of country information occur notwithstanding the requirement in the APIs that:

You must examine, investigate and research the available evidence and, if appropriate, invite further evidence to be provided, although you may well be in a better position than the claimant to help substantiate aspects of the account. As part of this, you must refer to relevant country information.

[…]

Decisions must take reliable, relevant and up-to-date country of origin information (COI) into account.

…

During the decision-making process, you must be familiar with the Country Policy and Information documents, including the relevant CPIN. In addition to the CPINs, other COI products, such as COI responses, may also be available for some countries which are relevant to the case and help you with the decision-making process.

While CPINs provide COI specific to claim-types in a particular country, you must still consider each case on its individual facts against the available relevant background COI.

Where there is no relevant or up-to-date country information in an existing CPIN or other COI product, you should ask CPIT to undertake research on the particular country and/or issue using their online information request service. Before doing so, you must decide whether the information you are seeking is likely to be crucial in order for you to make a decision on the claim. You must discuss and seek agreement with a SCW or technical specialist before submitting any requests to CPIT.

COI not available in CPIT's published products may become available during the application and consideration process. For example, the claimant may sometimes submit COI in support of their application, including reports written by country experts, or decision-makers may sometimes undertake their own country research to supplement CPIT's existing material in preparing for an interview. If the country information submitted or obtained by research is likely to be relevant to other cases, generally reliable and not included in existing COI products, you should send electronic copies of the documents and/or weblinks to the sources to CPIT where possible. (pp18 & 24, API on Assessing Credibility and Refugee Status pre 28 June 2022)

1.37B Indeed, paragraph 339JA of the Immigration Rules requires that:

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 [2002] 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.

e) Disputes about past facts: Lack of corroboration

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) and, more recently, MAH (Egypt) v SSHD [2023] EWCA Civ 216 at [86]), 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. The API on Assessing Credibility and Refugee Status recognises that being given the benefit of the doubt does not depend on all five criteria being satisfied:

If a claimant's account satisfies all five criteria, you must give them the benefit of the doubt – as there would be no reason not to do so. If the claimant only meets one or more criteria, you must still consider whether, on the facts of the case, it is appropriate to give them the benefit of the doubt, bearing in mind the relatively low threshold of 'reasonable degree of likelihood' applicable...

1.40C The consideration in MF (Albania) v SSHD [2014] EWCA Civ 902 of whether all the criteria under paragraph 339L were satisfied was in the context of the Court's 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 (or Home Office) 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 R (on the application of SS) v Secretary of State for the Home Department ("self-serving" statements) [2017] UKUT 00164 (IAC) and discussion at para 16.14). The refusal letter may then assert in Kafkaesque terms that the corroborating evidence cannot be accepted without corroborating evidence. See chapter 16 for a fuller discussion of documentary corroboration in asylum claims.

f) Disputes about past facts: Timing of flight

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.

1.44 These allegations regularly derive 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.

g) Section 8 of the Asylum and Immigration (Treatment of Claimants) Act 2004

1.44A The APIs summarise the effect of section 8 as follows:

General credibility findings should not be the starting point of the credibility assessment process (see SM(section 8:Judge's process) Iran[2005] UKAIT). However, for the purposes of paragraph 339L(v) a person's general credibility is potentially damaged by behaviour that falls within the scope of section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, as specified in Paragraph 339N of the Immigration Rules). …

There is a general requirement under section 8(1) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 to take into account as potentially damaging to a claimant's general credibility, any behaviour that appears to have been designed or likely to conceal information, mislead, or obstruct the resolution of their claim. You must therefore consider whether section 8 applies to the claimant and take this into account when deciding whether their general credibility has been established. As set out above, this is one of the factors to be taken into account in deciding whether to give a claimant the benefit of the doubt.

Behaviour that is perceived to be damaging to credibility may be identified at the screening interview, in which case the screening interview record should contain a credibility warning that you must consider together with any explanation provided at the substantive interview, and other evidence and underlying factors that come to your attention. For more information please see screening and routing guidance and the conducting asylum interview guidance.

The behaviours specified in section 8 are not exhaustive or determinative. Looking at the evidence as a whole, points in the claimant's favour may outweigh the points against. Section 8 prescribes types of behaviour that may potentially damage credibility but not the extent of the damage, nor the weight to be given to an adverse credibility finding. These are for you to carefully consider in the context of the individual case.

(API on Assessing Credibility and Refugee Status post 28 June 2022; API on Assessing Credibility and Refugee Status pre 28 June 2022)

1.44B The Tribunal is a decision-maker for the purposes of section 8.

1.44C In Y v SSHD [2006] 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 [2005] 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.

1.44E In JT (Cameroon) v SSHD [2008] EWCA Civ 878, the Court of Appeal endorsed the views of Baroness Scotland and of the Tribunal in SM (Iran) [2005] UKAIT 00116. Pill LJ said that:

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 [2003] 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.

1.44F The APIs caution fact-finders to be aware of the decisions in SM (Iran) [2005] UKAIT 00116 and JT (Cameroon) [2008] EWCA Civ 878 when applying section 8 in their assessment of credibility.

1.44G The NABA 2022 amends section 8 by adding new provisions on behaviour not in 'good faith' and on late evidence. By the new section 8(3A), 'any relevant behaviour by the claimant that the deciding authority thinks is not in good faith' is brought within section 8. 'Relevant behaviour' is defined for this purpose as behaviour 'in connection with the asylum claim or human rights claim in question or… the appeal in question', 'in any dealings with a person exercising immigration and nationality functions' or in connection with a civil claim under any provision of immigration legislation or in judicial review proceedings against a decision made in exercise of immigration and nationality functions.

1.44H It also adds a new section 8(1A) to the Asylum and Immigration (Treatment of Claimants) Act 2004 which requires the procedure rules to state that where the decision-maker is the Tribunal, it must include as part of its reasons for a decision that disposes of proceedings a statement explaining whether it considers that the appellant has engaged in behaviour to which section 8 applies and, if so, how it has taken account of the behaviour in making its decision. The Tribunal Procedure Committee consulted on a proposal to make a minor amendment to the Tribunal Procedure Rules to take account of this, making clear that it is unlikely to make any significant difference given that Tribunals are already required to provide reasons for their decisions. However, a change to the procedure rules will not be made, at least in the short term, following the Government's announcement, after the introduction of its Illegal Migration Bill into the House of Commons, that the provisions on which the Tribunal Procedures Committee were consulting would not be brought into force in the immediate term: see its Consultation reply of April 2023.

h) Late evidence

1.44I In addition to inserting late evidence as behaviour to which section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 applies, NABA 2022 further sets out consequences of providing late evidence in section 26. The reference to 'late' evidence is by reference to a new procedure established by s18 of NABA 2022 whereby the SSHD may serve a person who has made a protection or human rights claim with an 'evidence notice.' This requires a person to provide any evidence in support of the claim before a given date, or if served late, to provide a statement of reasons for the delay. By section 26 of NABA 2022, evidence provided on or after the date in the evidence notice is deemed to be 'late'. Section 26(2) states that: 'Unless there are good reasons why the evidence was provided late, the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence.' As the Home Office's own published guidance recognises, there are often good reasons for delayed disclosure, not least due to trauma (see eg (API on Assessing Credibility and Refugee Status in asylum claims lodged before 28 June 2022). The lack of legal representation is also a good reason. Notably, the requirement in section 26 is for decision-makers to 'have regard to' the principle that minimal weight be given to the evidence. This is arguably a weaker requirement than section 8.

i) Disputes about past facts: Choice of country of asylum

1.45 If the claimant passed through any other country deemed to be 'safe' on her way to Britain, it will be alleged (if an application is not rejected as inadmissible on that ground – see sections 80A, 80B and 80C inserted into the 2002 Act by the NABA 2022 and chapter 3) 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 as a 'country to which Part 2 of Schedule 3 [of the 2004 Act] applies' (s. 8(7)). This lists all States in the EU Single Market (ie EU States, EEA and EFTA States).

1.46 The Home Office's policy guidance says the following:

Failure to claim asylum or comply with the asylum process in the first safe country may be damaging to a claimant's credibility because it can indicate that the claimant's journey to the UK was not motivated by their need for protection; it is reasonable to assume that, if protection was their goal, an asylum seeker would have sought it at the first reasonable opportunity. Deciding to make an onward secondary movement to the UK from a first safe country either without claiming asylum or without waiting for their claim to be decided, may indicate that the claimant is motivated by other factors rather than protection, such as the desire for better economic prospects or to unify with extended family.

However, each case will need to be considered on its own merits as the reason for an individual's journey to the UK may comprise a number of complex factors and an asylum seeker may still be entitled to protection under international refugee and human rights law even if they have not claimed asylum in the first safe country or waited for their claim to be processed. (Assessing Credibility and Refugee Status post 22 June 2022)

1.47 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 (Law of Refugee Status (2nd edn), pp. 31 - 33). That is also UNHCR's position. In R v Uxbridge Magistrates Court, ex parte Adimi [1999] EWHC 765 (Admin) [1999] 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 [1999] EWHC 765 (Admin) has been supported by academic writers and UNHCR, and was approved by the House of Lords in R v Asfaw [2008] UKHL 31. In AJ (Pakistan) [2011] 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 Moreover, it is unclear how the Home Office 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.

1.48A In KA (Afghanistan) v SSHD [2019] EWCA Civ 914, the Court of Appeal noted that despite the statutory designation as 'safe' countries for credibility purposes, the primary decision-maker and the Tribunal 'have still to decide the consequences of such "safe country" status and whether a particular claimant has had a reasonable opportunity to claim asylum in such a country' (at [43]). The Court of Appeal noted that mere presence in a safe country was insufficient and it is necessary to consider the individual circumstances. This will include whether there were systemic failings and deficiencies in the asylum system of the country through which your client passed. The Court in KA also acknowledged the specific circumstances of unaccompanied minors which might be thought to attract less adverse weight than in other cases (at [47]).

j) When the claim was lodged: claiming asylum after arrival

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. 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))

1.50 A similar point has been made by the Court of Appeal (which also quoted the above passage):

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 [1999] 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. Whilst Home Office guidance to decision makers says that a claimant who has been in the UK for several years with a form of immigration status will find it difficult to argue plausibly that their delay in claiming asylum was due to a lack of knowledge of the immigration system, it does accept that there may be other reasonable explanations including:

• fear of detention

• other fears which may be held by the claimant (even if not objectively warranted)

• having another form of leave that you consider relevant for example under the Syrian visa concession

• being under the control (whether physical or coercive) of a trafficker (Assessing Credibility and Refugee Status post 28 June 2022)

1.52A The Home Office has been known to rely on 'delay' in claiming asylum 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. Even once an appointment is made, there may be a considerable delay until the appointment date. It is plainly absurd for UKVI to rely on such 'delay' as a reason for rejecting the claim made. Be sure to check with your client the circumstances of any such 'delay'.

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 may rely on these provisions in connection with the decision of the Tribunal in TP (Credibility) Zimbabwe [2004] UKIAT 00159, which held that the Tribunal was entitled to base adverse credibility findings which disposed of the appeal purely on 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. If this case is raised, it will 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.

k) Activities in Britain

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 [1999] EWCA Civ 3000 [2000] 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 [2008] EWCA Civ 360, para 13-15 and BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), para 49. The API on Assessing Credibility and Refugee Status post 28 June 2022 advises decision makers that:

Such cases will therefore call for very careful enquiry and assessment, both as to whether the individual would hold and express their political, religious or other beliefs contrary to past behaviour in the country of nationality (or former habitual residence), and as to whether their actions in the UK are in themselves likely to occasion persecution irrespective of the motivation for them. A finding of a claimant acting in bad faith may be relevant not only to their credibility but also to other elements of the claim, such as their risk of detection and the potential for the opportunistic nature of such activities to be apparent to the authorities. In (BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), the Upper Tribunal identified five factors to be considered when assessing risk on return having regard to 'sur place' activities of a political nature, which may be applied to other nationalities. These may be summarised as follows:

• The nature and extent of sur place activity, for example the claimant's role in demonstrations, their purpose and the publicity attracted in the UK or abroad

• The risk or likelihood of identification by the regime, including 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 to the regime 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?

• how the person left the country (illegally; type of visa); where have they been whilst 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 would this give rise to ill-treatment

• Consequences of identification, e.g. whether there is any known differentiation between demonstrators depending on the level of their political profile in opposition to the regime?

• Identification risk on return, for example, if a person is identifiedis that information systematically stored and used; and are border posts known to be geared to the task?

l) Economic motivation

1.55 The refusal letter may assert 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 a report by Asylum Aid, 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'.

1.55A In previously published guidance, the Home Office presented a different stance:

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. (withdrawn API on Considering asylum claims and assessing credibility – note: this is not repeated in the current API Assessing credibility and refugee status)

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.

Claims about country conditions and risk

1.57 The question of whether the claimant's fears are presently well-founded 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.

1.58 Often there will not be a clear divide between 'the government' and agents of the state who are '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 [2001] 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.

1.58A In so far as sources are relied upon, the Tribunal has noted the increasing tendency of Home Office decision letters to include footnotes with links to websites (see AM (fair hearing) Sudan [2015] UKUT 00656 (IAC)). You should follow the links yourself and do not rely on the Home Office decision-maker's analysis of the material relied upon in the footnote. It may be that the content of the website link does not support the point made in the refusal letter. Any such discrepancies should be identified in your skeleton argument.

Minimising past harm and present risk

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 [1999] 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.

1.60 The Court held (per Stuart-Smith LJ) that:

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 Para 339K of the Immigration Rules 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, will be regarded 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 consider that such persecution or serious harm will not be repeated.

1.60B The API states that:

If a claimant has already been subjected to persecution, or direct threats of such harm, paragraph 339K of the Immigration Rules makes it clear that this will be a serious indication of a well-founded fear of persecution or real risk of suffering serious harm on return, unless there is good reason to believe that such ill-treatment will not be repeated. (API on Assessing Credibility and Refugee Status)

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 [2011] 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 (and often far from the truth).

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.

1.64 […]

Non-state risks

1.65 In R v SSHD, ex parte Bagdanavicius [2005] 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.'

1.65A In AB (Protection -criminal gangs-internal relocation) Jamaica CG [2007] UKAIT 00018, the Tribunal set out the summary of the Court of Appeal's conclusions on protection from non-state risks in R (Bagdanavicius) v SSHD [2003] EWCA Civ 1605 (upheld in the House of Lords), 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 [2001] 1 AC 489 and Dhima [2002] 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 [2001] EWCA Civ 807, McPherson [2002] INLR 139 and Kinuthia [2002] 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). That the level of protection is 'reasonable provision in the circumstances' and not 'a guarantee of protection from violence' was confirmed by the Administrative Court in R (W) v SSHD [2017] EWHC 9 (Admin).

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, yet the Home Office may seek to rely on such assertions. 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 the home State's complicity in, or support for, 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. Expert country evidence may be particularly useful in countering such assertions: see Chapter 20.

1.68 Do not be surprised if half the refusal letter is aimed at showing that your client is not at any risk from the government, even if the risks claimed are purely non-state.

Legitimate interest/prosecution

1.69 Home Office refusal letters may allege that the authorities' adverse 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 [1996] Imm AR 97; [1995] EWCA Civ 16). 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 [2003] 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.

Internal protection alternative

1.71 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 [2006] 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 [2011] 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 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 [2010] 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:

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 reasonably be expected to live there.

…Where the fear is of members of her family, relocation is not reasonable if the situation the individual would be placed in would be likely to leave them with no alternative but to seek their family's assistance and so re-expose them to a well-founded fear of persecution or a real risk of serious harm. (p26)

1.73A In SSHD v AH (Sudan) and Others [2007] 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) [2007] 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 [2006] 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) [2007] 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 [2013] 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 under para 339O of the Immigration Rules, the requirement that internal relocation be reasonable applies equally to refugee status and Humanitarian 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– see the discussion in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC).

1.73G The guidance from the case law on internal relocation was considered and summarised (although expressly not comprehensively) by the Court of Appeal in AS (Afghanistan) v SSHD [2019] EWCA Civ 873, [61]:

(1) By way of preliminary, internal relocation is obviously not an alternative where there is a real risk that the applicant for asylum will suffer persecution, or serious harm within the meaning of article 15 of the Directive (which includes treatment which would be contrary to article 3 of the ECHR), in the putative safe haven. We are concerned with cases where there is no such risk.

(2) The ultimate question is whether in such a case "taking account of all relevant circumstances pertaining to the claimant and his country of origin, … it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so". That is the formulation of Lord Bingham in Januzi, repeated in AH (Sudan). It pre-dates the Directive and is not identically worded: in particular, the reference to whether relocation would be "unduly harsh" is not present in article 8 but derives from the UNHCR 2003 Guidelines (see Januzi, para. 20). But it was common ground before us that it states the test required by article 8. When in doubt it is to that question that tribunals should return.

(3) The test so stated is one of great generality (save only that it excludes any comparison of the conditions, including the degree of respect for human rights, between those obtaining in the safe haven and those of the country of refuge – this being the ratio of Januzi). It requires consideration of all matters relevant to the reasonableness of relocation, none having inherent priority over the others (AH (Sudan), para. 13). This is the same as Lady Hale's description of the necessary assessment as "holistic" (AH (Sudan) paras. 27-28).

(4) One way of approaching that assessment is to ask whether in the safe haven the applicant can lead "a relatively normal life without facing undue hardship … in the context of the country concerned". That language derives from the UNHCR Guidelines and is quoted by Lord Bingham with approval in Januzi (para. 20) and also used by Lord Hope (para. 47); but it does not appear in the Directive or in Lord Bingham's formulation of the test, and it should not be treated as a substitute for the latter. Rather, it is a valuable way of approaching the reasonableness analysis – "one touchstone", as Lord Brown puts it (AH (Sudan) para. 42). Its value is because if a person is able to lead in the safe haven a life which is relatively normal for people in the context of his or her own country, it will be reasonable to expect them to stay there (AH (Sudan), para. 47).

(5) It may be reasonable, and not unduly harsh, to expect a refugee to relocate even if conditions in the safe haven are, by the standards of the country of refuge, very bad. That is part of what is decided by Januzi itself, and the passages quoted at paras. 34 and 35 above reinforce it. It is also vividly illustrated by the outcome of AH (Sudan), where the House of Lords upheld the decision of the AIT that it was reasonable for Darfuri refugees to be expected to relocate to the camps or squatter slums of Khartoum. That may seem inconsistent with the suggested approach of asking whether the applicant would be able lead a "relatively normal life" in the safe haven; but the reconciliation lies in the qualification "in the context of the country concerned".

(6) Point (5) does not mean that it will be reasonable for a person to relocate to a safe haven, however bad the conditions they will face there, as long as such conditions are normal in their country. Conditions may be normal but nevertheless unduly harsh: this is the point emphasised by Lady Hale in AH (Sudan) and is exemplified by AA (Uganda).

(7) The UNHCR Guidelines contain a full discussion of factors relevant to the reasonableness analysis. These are described by Lord Bingham as "valuable" and partly quoted by him (Januzi para. 20); and at para. 20 of her opinion in AH (Sudan) Lady Hale endorses a submission made in that case by UNHCR which summarises the factors in question. A decision-maker must consider those factors, so far as material, in each case (though it does not follow that everything said in the detailed discussion in the Guidelines is authoritative).

(8) The assessment must in each case be conducted by reference to the reasonableness of relocation for the particular individual.

In relation to point 6 above, the Court (at [63]) accepted that this "requires an objective judgment by the decision-maker, and also that it does imply some concept of a threshold below which it will not be reasonable to expect the individual to stay in the safe haven." The Court also rejected an approach to the consideration of internal relocation whereby individual statements or phrases in the caselaw or UNHCR Guidelines are elevated to the status of "distinct tests.'" Rather, "what is essential is that the decision-maker should conduct the kind of holistic assessment, encompassing all relevant considerations" (at [68]).

The Home Office's human rights analysis

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 where an asylum claim has been made.

1.75 In respect of Articles 2 and 3 ECHR, Home Office treatment of these provisions in the refusal letter will most 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. The treatment of Article 8 will often be limited to private life and essentially amount to the assertion that following a finding that your client is not at risk of persecution or serious harm, she can return to the country in which she has spent the majority of her life and where she is socially and culturally integrated. The Home Office will almost inevitably argue that in the absence of a risk of persecution or serious harm, there are no 'very significant obstacles to the applicant's integration into the country where they would have to live if required to leave the UK' (paragraph 276ADE(1)(vi) of the Immigration Rules and now PL5.1 of Appendix Private Life). However, if, for example, there is accepted systemic discrimination against the ethnic group to which your client belongs, the Home Office's stance is very contestable. If you are instructing a country expert, it may be useful to request consideration of your client's ability to integrate.

1.76-1.78 […]

a) Article 3 ECHR

1.78A The Home Office may fail to grasp the threshold for article 3 ill-treatment. In AA (Zimbabwe) v SSHD [2007] 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, including 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 [2003] 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).

1.78C In cases where an application raises evidence of physical or mental illness and/or suicide risk, the refusal letter is likely to include a long section on the Article 3 medical case law. There has been a significant lowering of the threshold for engagement of Article 3 in medical, and arguably also suicide risk, cases following the Supreme Court's judgment in AM (Zimbabwe) v SSHD [2020] UKSC 17, which adopted the Strasbourg Court's judgment in Paposhvili v Belgium (App no. 41738/10). Until AM (Zimbabwe), UK courts had been obliged to follow the approach laid down in N v UK (App no. 26565/05) and the former lead domestic precedent, N v SSHD [2005] UKHL 31, which essentially limited violations of Article 3 in the medical context to death bed cases. After the Supreme Court's judgment in AM (Zimbabwe), Home Office decision makers will be required to consider whether removal will result in a serious, rapid and irreversible decline in health which causes either intense suffering or a significant reduction in life expectancy. The Tribunal has confirmed that the AM (Zimbabwe) test applies to cases relating to mental ill health and/or suicide risk: MY (Suicide risk after Paposhvili) [2021] UKUT 00232 (IAC) (see also the Grand Chamber decision in Savran v Denmark (App No 57467/15). Importantly, the Supreme Court in AM (Zimbabwe) also commented on the procedural obligation on the State to investigate and rebut sufficiently cogent evidence provided by an applicant of an Article 3 breach. Be aware that Home Office decision-makers may misapply both the substantive threshold for a breach of Article 3 and the procedural requirements under it.

1.78D In Ainte (material deprivation – Article 3 – AM (Zimbabwe) [2021] UKUT 00203 (IAC), the Upper Tribunal rejected the SSHD's submission that there was a material distinction between healthcare cases and those relating to living conditions in the country of origin such that cases based on conditions of extreme material deprivation should be excluded from the ambit of Article 3. The Tribunal held that cases relating to living conditions in the country of origin were capable of falling within Article 3 ECHR but that the test to be applied to such cases differed depending on the nature and origin of the conditions. In cases where the conditions were predominantly due to direct or indirect actions of the State of origin, in the sense that they were "intentional", the unmodified Article 3 threshold would apply. The same would presumably apply where the living conditions were the result of discrimination outside the context of conflict (though in such cases your primary argument is likely to be under the Refugee Convention rather than Article 3). However, in the absence of such "intentionality" or discrimination, that is where the conditions arose naturally as a result of environmental or other factors, the test to be applied would be that in AM (Zimbabwe) (whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy).

b) 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' (initially under para 276ADE and now under Appendix Private Life) 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 family life and private life Immigration Rules, with secondary consideration of whether there are exceptional circumstances, under GEN 3.2 and 3.3. of Appendix FM which would render refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or a family member.

1.79A The interplay between Article 8 ECHR and the Immigration Rules has been clarified by the decisions of the Supreme Court in Hesham Ali v SSHD [2016] UKSC 60 and Agyarko v SSHD [2017] UKSC 11. The Court in Hesham Ali held that the Secretary of State's policy given effect by the Rules, is:

…a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. … It remains for [tribunals] to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest… in the case before them, the factors brought into account on the other side lead to the conclusion that [expulsion] would be disproportionate.

The Supreme Court has equally confirmed that the ultimate test in Article 8 cases remains proportionality: Agyarko v SSHD [2017] UKSC 11. That said, courts have found that where the Rules are met, this will be dispositive of the question of proportionality under Article 8 ECHR: see TZ (Pakistan) v SSHD [2018] EWCA Civ 1109 at [34] and OA and Others (human rights; 'new matter'; s.120) Nigeria [2019] UKUT 00065 (IAC).

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 [2004] 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 [2003] 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 (see EX.1 of Appendix FM). 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 [2004] 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) [2010] EWCA Civ 583. In Ghising (family life - adults - Gurkha policy) [2012] 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). That the test for the existence of family life between adults is the existence of "real", "effective" or "committed" support, and that there is no requirement for 'exceptional dependency' was confirmed by the Court of Appeal in Rai v Entry Clearance Officer [2017] EWCA Civ 320 and Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338.

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 is required to apply ss. 117A-117D of the 2002 Act. 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, whenever the original decision was made or appealed against (YM (Uganda) v SSHD [2014] 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 person 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. In deportation cases, the courts have found s 117C (rather than the Immigration Rules on deportation) to govern in its entirety the judicial determination of cases: Binaku (s.11 TCEA; s.117C NIAA; para 399D) [2014] UKUT 00034 (IAC).

1.79F Although it accepts that the Rules and ss. 117A-D are not conclusive of the assessment of proportionality, part of 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. The guidance for decision-makers entitled Criminality: Article 8 ECHR cases advises Home Office decision-makers that:

You 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.

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: 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. Section 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 (see Rhuppiah v SSHD [2018] UKSC 58). Indeed, in practice, it does not appear that Home Office decision-makers are following this prescription that remains published in guidance.

1.79H Home Office guidance, Family Policy: Family life (as a partner or parent), private life and exceptional circumstances, sets out the factors that decision-makers must consider in determining whether the Immigration Rules are met or whether there are 'exceptional circumstances' in cases in which the requirements of the Immigration Rules are not met. 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 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. Whilst Home Office guidance documents cannot be more restrictive than the Rules (see Pokhriyal v SSHD [2013] EWCA Civ 1568) at [43]), in SF and others (Guidance – post-2014 Act) Albania [2017] UKUT 120 (IAC) 10 the Tribunal held that even in the absence of a 'not in accordance with the law' ground of appeal, it ought to take the Home Office's guidance into account if it points clearly to a particular outcome.

1.79I Since 2 November 2009, the UKVI 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 [2011] 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 [2011] EWCA Civ 305.

1.79J In EV (Philippines) v SSHD [2014] 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.

Is that it? New reasons for refusal raised at the hearing

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 may 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. In the absence of advance notice of the case against you, it will frequently be necessary to apply for an adjournment (the central test being whether failure to adjourn would deprive a party of the right to a fair hearing): see SH (Afghanistan) v SSDH [2011] EWCA Civ 1284 and Nwaigwe v SSHD [2014] UKUT 00418 (IAC). The Home Office's Review stage of the appeals process includes a requirement to 'particularise any additional grounds of response': Practice Statement 1 of 2022. Where a CMRH is held (although this is now rare), 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). The Home Office review procedure demonstrates the unacceptability of this practice. Whilst in practice, the possibility of adding new grounds at the review stage is little used, you should carefully check the Home Office review for any additional grounds and, if such exist, request further directions, and potentially an amendment to the timetable, to permit you to answer any further points against your client with evidence and further written pleadings, as necessary. If what is in dispute is unclear following the Home Office review, you will need to seek directions for the Home Office to clarify the issues against your client or request a CMRH.