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Chapter 2 - Well-founded Fear

This is a chapter from the Bloomsbury Professional book Asylum Law and Practice, 2nd Edition, which is a detailed exposition of the law relating to international protection. Written by two leading authorities on refugee law, this book brings together in one place all relevant aspects of asylum law and practice in the United Kingdom. The title is comprehensive enough to serve as a reliable source of information and analysis to all practitioners. Its depth, thoroughness, and clarity make it a compulsory purchase for all practitioners wanting to put forward well-supported arguments to the Home Office, Courts and Tribunals.

The book focuses on UK practice and procedure, but in addressing the refugee definition deals with case law from other jurisdictions, such as Canada, Australia, New Zealand and the USA. It addresses all aspects of claiming asylum and the processing of protection claims, from the New Asylum Model to appeals in the Upper Tribunal, humanitarian protection, third country cases and the treatment of asylum seekers. This edition features the Qualification Directive and other elements of the Common European Asylum System; gives a detailed analysis of appeals in the Immigration and Asylum Chambers of the Upper Tribunal and considers refugee issues in detail.

"...this is a monumental work..." Justice Journal, 2004

"...wholly comprehensive and pre-eminent..." Lord Justice Simon Brown

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Mark Symes and Peter Jorro

Chapter 2 Well-founded Fear

Table of Contents

1 The Standard of Proof

2.1 Determination of a claim for asylum requires the decision-maker to engage in a sophisticated exercise in which the consequences of the decision being proved wrong are so grave that a standard of proof other than that applying to normal civil cases is required. The determination of the well-foundedness of a person's fears has been described as:

'an essay in hypothesis, an attempt to prophesy what might happen to the applicant in the future, if returned … a reasoned guess as to the future, taking account also of the element of relativity between the degree of persecution feared (whether death, torture, imprisonment, discrimination, or prejudice, for example), and the degree of likelihood of its eventuating'.[1]

The standard of proof for the assessment of risk in the United Kingdom was elucidated in Sivakumaran.[2] Therein Lord Keith derived assistance from a speech of Lord Diplock on a related topic[3] and thus imported the standard of proof from the law of extradition into that of asylum:

'[B]earing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or the other … A lesser degree of likelihood is, in my view, sufficient … "A reasonable chance", "substantial grounds for thinking", "a serious possibility" – I see no significant difference between these various ways of describing the degree of likelihood.'[4]

These expressions were summarised by Lord Keith as representing a standard of proof equating to 'a reasonable degree of likelihood'.[5]

The meaning of 'reasonable degree of likelihood' has been the subject of some further elucidation. The objective risk should be a realistic one: 'Not contingent, remote or speculative',[6] nor 'vanishingly small.'[7] One formulation is that the appellant can make his case if there is a real danger or substantial possibility of persecution.[8] In a passage from Supreme Court authority relied on by Lord Keith in Sivakumaran to support the construction that there was a requirement of an objective basis for a risk of persecution, Stevens J considered that there was no room for the view that because an applicant had only a 10 per cent chance of being shot, tortured or otherwise persecuted he or she had no 'well-founded fear', for '[S]o long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility'.[9] Whilst the '10 per cent standard' may serve as a useful reminder of the extent to which the asylum standard differs from the civil one, its mechanistic appliance has no place in English law, however, for the adoption of a strict quantitative approach would risk jettisoning the broad assessment of risk reflected in 'serious possibility' or 'reasonable likelihood'.[10] The Qualification Directive maintains the language of 'well-founded fear' (of persecution) for refugee claims, 'substantial grounds for … believing that the person concerned … would face a real risk' (of serious harm) for Subsidiary Protection cases,[11] that previously divided refugee cases and protection claims based on Article 3 ECHR;[12] though increasingly 'real risk' is the preferred encapsulation.[13]

2.2 The lower standard of proof set out in R v Secretary of State for the Home Department, ex p Sivakumaran[14] is a central tenet of the asylum jurisdiction. The principles within it should be taken to be known by the immigration judiciary who deal with asylum cases on a daily basis, so there is no requirement that it be cited in any more detail than by its name in a determination.[15] The Immigration Appeal Tribunal historically took a strict approach to citation of the standard of proof, ruling that a failure to cite it would be fatal to the determination in the great majority of cases,[16] although recent years have seen an increasing tendency to concentrate on the substance of a decision rather than its form.[17] Not merely the citation of the standard itself, but also its application as demonstrated by use of language throughout the decision, may render a determination unsafe. The low standard of proof operates for an asylum seeker's benefit, so it would be wrong to find that an alternative explanation for certain matters to that put forward by the applicant is 'reasonably likely'.[18] It has been said that any suggestion by a decision-maker that they are not 'convinced' of the veracity of the applicant's story implies an unjustifiably high standard of proof.[19] Scepticism such as that revealed by the phrase 'I therefore question his credibility on the issue of mistreatment in detention' falls very far short of a finding that the applicant's evidence on the topic was incredible.[20] The authors would question whether the latitude now given to the immigration judiciary, subject as they have been to many years of appellate guidance, would be appropriately bestowed on the administrative decision makers who adjudicate upon fresh claims.[21]

2.3 The determination of well-founded fear involves both the assessment of past facts and a prognosis as to future risk. This combination of necessary evaluations led to a legal division of the Tribunal explaining the relevance of the lower standard of proof applicable to the assessment of prospective risk[22] to the determination of events in the past. The Kaja[23] Tribunal ruled that decision-makers should award a positive role to uncertainty, concluding that to treat only the facts established on the balance of probabilities as the platform on which to determine whether there was a 'reasonable likelihood' of risk eventuating would be to remove much of the benefit of uncertainty conferred on the applicant by the House of Lords decision in R v Secretary of State for the Home Department, ex p Sivakumaran.[24] Whilst the novelty of this 'standard of proof' may, at one time, have required its express citation, it can be said now to be sufficiently well known that a failure to cite it in terms will damage the determination only where combined with other evidence of misapplication of the standard of proof.[25]

2.4 There was occasional dissent from the Kaja approach within the divisions of the Tribunal in the years that followed its determination, although it was followed almost uniformly.[26] One authoritative decision which approved its correctness was that of another legally constituted Tribunal, also chaired by a President, in Horvath,[27] which said that it seemed unlikely that Parliament's approval of the 'reasonable likelihood' standard for the assessment of the probability of past torture was based on some misunderstanding of the law by the legislature.[28] Once this statutory adoption of the Kaja standard for some questions of historic ill-treatment was acknowledged, it was difficult to argue for a different standard of proof in relation to allegations of torture, as opposed to other allegations of persecutory acts in the context of a composite asylum claim. However, on appeal in Horvath, certain observations were made[29] casting doubt on the propriety of the Kaja approach. Those remarks prompted the Court of Appeal in Karanakaran[30] finally to determine the issue. Brooke and Sedley LJJ ruled that Kaja represented a perfect statement of the method for the determination of past facts in asylum cases, albeit that it was not authority for the proposition sometimes attributed to it to the effect that that standard was that of the 'reasonable degree of likelihood'.[31] The decision in an asylum case is administrative in nature and hence all relevant material must be taken into account, notwithstanding that some elements might not satisfy the decision-maker to the civil standard. That standard, imported into refugee cases via an inapt analogy with strict adversarial litigation, is unsuitable for the task in hand.[32] Anybody charged with the duty of finding facts in an asylum case will avoid error best by giving some weight to material as to which they have doubts. Brooke LJ concluded:

'when considering whether there is a serious possibility of persecution for a Convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.'[33]

In the authoritative decision of Kacaj, the Tribunal has given direction as to its preferred formulation for both asylum and human rights cases, endorsing the 'real risk' threshold thought apt by the European Court of Human Rights.[34]

2.5 Most of those wanting to make a case for the grant of asylum must first establish a personal history that evinces a real fear of persecution. The question which confronts the decision-maker is not whether the individual is a witness of truth, but whether they possess a well-founded fear of persecution, and there will be occasions where an asylum seeker faces a risk on return to their country, notwithstanding an inability to put forward credible testimony regarding their own history. In general, the most favoured indicia for determining credit are the consistency of the account and its plausibility (both being measured to some degree internally and as against the background documentary evidence). The paramount role these two factors assume cannot be criticised in principle; but in practice, their application to the plight of the refugee is fraught with difficulty, for whom the establishment of historical facts presents particular challenges. Difficulties arise from the formalistic atmosphere of both interviews with the Home Office and appearances in court,[35] the fallibility of memory,[36] and the fact that the claimant is often only able to give a partial account of those events in a far-off regime which contribute to the well-foundedness of their fears.[37] The problems facing the court assessing a claim have been summarised thus:

'It frequently has to make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate, and who often do not understand either the process or the language spoken by the decision-maker/investigator. Even applicants with a genuine fear of persecution may not present as models of consistency or transparent veracity.'[38]

2 General Approach to the Assessment of Historical Facts

2.6 In its day, the Immigration Appeal Tribunal issued several exhortations to adjudicators to assess claims on the basis that the facts asserted by the asylum applicant are made out, albeit that Ouseley J as President of the Tribunal criticised this approach where credibility was disputed, for its assessment was then key to the immigration judiciary's role[39] (nevertheless, the Tribunal's position remains that 'great care must be taken before making adverse findings of credibility in asylum cases)'.[40] Whilst recognising the possibility that there will be cases where the story falls to be rejected outright, in general it is safer for adjudicators to first analyse the claimant's account to determine whether the appeal can succeed if true, and, having determined that issue, to proceed to examine the veracity of the asserted factual foundation.[41] One advantage of this approach is that it avoids any perception that there is a requirement to brand the appellant a liar,[42] thereby enhancing confidence in the unsuccessful litigant that their case has received the fairest consideration.[43] Failure to adhere to such a policy has led to an adumbration of the problems which might follow from elevating the assessment of credibility to the forefront of the decision-maker's role, an approach prone to lead to three-fold error. First, the employment of an overly arduous standard of proof; secondly, re-characterisation of the risk the appellant runs on their return;[44] and thirdly, disbelief of the appellant due to a failure to assess the plausibility of the whole or part of the oral testimony in the light of the background evidence.[45] Much of the foregoing is encapsulated in the approval of the approach advocated by Professor Hathaway[46] to the focus of assessment by the then President, in Horvath:[47]

'[S]tatus determination should concentrate on protection from prospective risk of persecution. This should be forward looking. It is most unfortunate that all of us involved in this process in the United Kingdom have had what Professor Hathaway refers to as "an unhealthy fixation with past mistreatment." If we had concentrated on a forward looking assessment of risk, much of the debate would have been irrelevant.'

The same President issued a firm rebuke in response to the oft repeated mantra that 'credibility is fundamental in every asylum appeal,' observing that there will be many cases where credibility is totally irrelevant, in that the only issue is whether the claim brings the appellant within the terms of the Refugee Convention.[48] The High Court has itself endorsed that advice, Turner J remarking 'Credibility is not in itself a valid end to the function of an adjudicator. There is a risk … that overemphasis on the issue of credibility may distort the findings of an adjudicator'.[49] Besides this, credibility is to be assessed globablly.[50]

(a) The Spirit of the Enquiry

2.7 Given the likely difficulties alluded to in Kaja[51] and elsewhere in establishing the premises of a claim, it is imperative that the appellant be given every opportunity to fairly prove the facts on which they rely. At least one judge referred to decisions which occasionally came before the High Court which were redolent of a 'culture of disbelief'.[52] An appropriate spirit with which to approach an asylum application might be to recognise that it is perfectly possible to accept a story because it all 'hangs together', there being no particular reason to suggest that any substantial part of it is not true.3 It is dangerous to approach elements of an appellant's account with an attitude of disbelief, for such would risk colouring other findings such as to make them unsafe.[53] The practice of picking out facts and deciding each one individually has been said to represent a failure to look at the evidence as a whole.[54] The decision-maker must not become predisposed against applicants on account of similarities between their stories: 'It is more reasonable to conclude … that a similarity in the content of claims substantiates the reality of the claimed persecution than to conclude that an applicant's story is fabricated'.[55] Nevertheless, an appellant who fails to attend their hearing cannot expect to benefit from a liberal approach to unexplained questions that attend their account.[56]

(b) The UNHCR Handbook

2.8 The UNHCR Handbook provides guidelines as to how the decision maker should approach their task, although they are not rules of English law.[57] However, the principles of the UNHCR Handbook suffuse the reasoning of the courts and Tribunals in their determinations on the fact-finding process, for its pages contain valuable advice on the procedures for determination of refugee status, particularly the principles and methods to be used in the establishment of facts.[58] Salient features of the examination procedure recommended by the UNHCR are recognition that cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.[59] Accordingly, where the applicant's account is credible, in the sense of appearing to be coherent and plausible and not running counter to generally known facts they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[60] The duty to ascertain and evaluate all the relevant facts should be shared between the applicant and the examiner, it being for the latter to give an opportunity to clarify any apparent inconsistencies and to resolve any contradictions.[61] This process requires that the examiner seeks to gain the confidence of the applicant in order to assist the latter in putting forward his case.[62] In creating such a climate of confidence, it is of the utmost importance that the applicant's statements be treated as confidential and that they understand this.[63] Overall, the decision-making process can be expected to serve its designated purpose only by the application of the criteria in a spirit of justice and understanding, never permeated with any presumption that the applicant may be an 'undeserving case'.[64]

3 Fairness and the Fact-Finding Process

2.9 Prior to 1993 and the introduction of the statutory right of appeal to all asylum seekers, there was a provisional decision (known as the 'minded to refuse' stage) with respect to which the applicant was allowed to make observations. In this context, there was significant judicial comment on the difficulties that stood in the way of an asylum seeker wishing to communicate their account to the authorities. These concerns remain pertinent to the evaluation of asylum cases, despite the fact that most asylum seekers now enjoy a right of appeal on the merits, albeit that it will now be the immigration judiciary rather than the High Court who consider whether adverse inferences are justified on a proper investigation of the application: though the principles should still apply to those accelerated processes which forestall a right of 'in-country' appeal.[65] One difficulty is entailed by the disjunction in the decision-making process wherein the person making the decision on the asylum claim is not the same person who conducted the interview with the claimant and is therefore deprived of any opportunity to assess the state of mind of the applicant and the manner in which they give their account at first hand,[66] though the single caseowner model that distinguishes the New Asylum Model under which many claims are determined does not suffer from this disadvantage.[67] There is also the obstacle presented by questions being asked through an interpreter and also of an interviewee of an entirely different culture and background from the person conducting the interview.[68] Where lengthy passages from earlier interviews are being put to an applicant through an interpreter, any court will be anxious to ensure that a realistic opportunity has been given to advance the case in its fullest form.[69] These barriers, separating the applicant and the decision-maker, are such that there must be a very careful examination to ensure that the applicant addressed each of the particular points which was concerning the Secretary of State.[70] In these circumstances, it cannot be said that an examiner who merely issues an invitation: 'Do you have anything else to say?' gives an adequate opportunity to the interviewee, to respond to the concerns which remain in the mind of the decision-maker to the standard required by law.[71] Where matters are taken into account in assessing an applicant's truthfulness, genuineness and credibility, fairness requires that these matters are to be put to him and his comments invited.[72] If an opportunity to make representations was to be meaningful, then the mind of the applicant should be directed to the considerations which, as matters stood, defeated his application; and, if the chance to supplement previous answers was to be effective, the applicant must be reminded of, or preferably shown, the answers given previously. Bearing in mind the strain to which an applicant may be subjected at the time of the first interview and the difficulties of communication through an interpreter, this procedure will be required even where there is a short interval between the interviews.[73] In the context of the anxious scrutiny required in asylum matters, the Secretary of State is under a clear duty to properly investigate the facts which underlie his own assumptions before making challenges based on assertion.[74]

4 Confidentiality

2.10 Confidentiality is a fundamental aspect of refugee status determination,[75] driven by several imperatives: that the authorities gain the trust of asylum seekers, that the unnecessary creation of sur place refugees is avoided, and that relatives remaining in the country of origin are not put at risk.[76] The Secretary of State is entitled to use information obtained from one claimant in the course of assessing another's claim. However, it would not be proper in a letter to one claimant to disclose information attributed to another claimant. That would appear to be a clear breach of the undertaking of confidentiality given by the authorities.[77] The same considerations do not apply on appeal, however, for pursuant to the Procedure Rules[78] information given by the claimant in the course of making their claim is to be passed to the Immigration Judge, before whom the hearing of an asylum appeal takes place in public. A person's claim, and the details of it, cease to be confidential when they appeal against a refusal.[79] All the more reason, then, that it be made clear to appellants that they have the opportunity to give evidence in camera when their story involves material of a sensitive nature.[80] European law forbids the disclosure of details of an asylum claim to the alleged actors of persecution, and prevents obtaining information from them where that would reveal the fact of an asylum claim and jeopardise the physical integrity of the asylum seeker, or the liberty of their family members in the country of origin.[81]

5 Features of the Asylum Seeker's Account

(a) Discrepancies

2.11 It is axiomatic that a decision-maker may place weight on serious discrepancies between the accounts of a witness, as a statement which is inconsistent with a previous one may, without explanation, justify an inference that the evidence given is unreliable.[82] In the context of asylum, such a doctrine must be applied with sensitivity, simply and to equate consistency with truthfulness is wrong.[83] Asylum seekers will often be giving details of complex factual, and necessarily foreign, scenarios, explaining events which traverse broad expanses of time, much of it having occurred many years earlier. They may well be constructing their account from a mixture of first-hand and hearsay evidence and the subject matter of their tale is likely to be of a distressing nature, describing events of which fortune dictates that the decision-maker will lack the experience to empathise.

'It is widely accepted that the fact that a refugee claimant has changed his or her story from time to time is not necessarily indicative of deliberate untruthfulness. In many cases there is a clear and convincing reason for inconsistencies and changes. Examples which come to mind are memory failures, an inability or reluctance to relive traumatic events or to recount painful facts. Sometimes there is a misguided desire to conceal the identities of other persons involved in the events. One should not be overly zealous in attacking the credibility of an applicant and it is not permissible to base findings on insignificant matters or to draw conclusions without proper evidence.'[84]

In these circumstances, it is unsurprising that even the High Court exercising its supervisory jurisdiction, has found that undue concentration on perceived inconsistencies has led to error.[85] Certainly, any inconsistencies must be of sufficient seriousness to warrant a conclusion that the account is false. Otton J once commented that discrepancies in the precise number of detentions visited on the claimant might be so peripheral as to be insignificant.[86] Where there is a conflict between the statements of the claimant and their witnesses, an assessment has to be made as to the significance of that conflict, bearing in mind whether the inconsistency is explained by the difficulties incumbent in the procedure of gaining information itself.[87] Equally, such differences may be explained by separate perceptions of the incidents described and whether the respective witnesses are giving accounts of events actually perceived by them.[88] Against this backdrop of authority, the Tribunal has articulated the view that discrepancies between accounts given on different occasions are by no means conclusive of invention.[89] The decision-maker should not feel obliged to submit an account to microscopic examination in order to root them out.[90]

2.12 Echoing the judicial comment regarding the 'minded to refuse' process, the Tribunal has warned that due allowance must be made for the different stages of the asylum process and the various ways in which information is elicited: '… any comparison between responses to the initial queries and later responses must bear in mind the limited terms in which the initial questions are phrased'.[91] If no opportunity has been given to an applicant to explain discrepancies at the stage of the process at which detailed information is gathered, that may well limit the weight that can be given to such discrepancies at a later stage.[92] It is inappropriate to criticise an appellant's credibility where their case has evolved in the details whilst remaining consistent in its basic factual focus.[93] It has been stressed, with reference to the format of the initial interview for port applicants, that an appellant was not only entitled to put their case briefly and succinctly at that point in its exposition, they were positively invited to do so. To go behind that invitation on appeal would be to risk injustice and unfairness.[94] Therefore Immigration Judges should be very slow indeed to draw any adverse inferences from a failure to mention every aspect of a claim for asylum at the initial interview, when only basic detail is required.[95] An appellant's evidence before the adjudicator to the effect that he was told to give brief answers only at that interview was wholly in accord with established procedure and instructions.[96] Parker LJ thought it pertinent to recall that an applicant will in many cases be first interviewed when they have not fully recovered from a long flight and 'he should have the opportunity to consider calmly where there is anything which he should add or alter'.[97] Exceptions to these principles will be rare. However, where it is manifest that there is some matter arising from the story which, on its face, is inconsistent with a claim for asylum and which therefore calls for an explanation, there may be no injustice in the decision-maker failing to raise the point.[98] There is a difference between teasing out a complete story and a case where there was a failure to mention from the outset significant events which led to the appellant's departure from the country of origin. Such a failure requires some satisfactory explanation and, if there was none, their entire credibility must be at best suspect.[99] Statement of Evidence forms, where supplied, can be taken to be comprehensive expositions of the claim, and any corrections should be made at the first opportunity;[100] though it should be recalled that not all legal representatives meet the professional standards which might be expected.[101] It is understandable that an individual concerned as to the consequences following their revelation of activities in a notorious organisation might not feel able to disclose every aspect of their account from the outset.[102]

2.13 It is incumbent on any decision-maker who intends to attach weight to discrepancies to give at least some consideration as to their explanation. Matters that might at first seem inconsistent may be the result of questioning techniques that fail to comprehend the difficulties posed by interviewing across cultures; forgoing the read back of interviews is a recipe for difficulties in this regard,[103] which in the absence of funded legal representation at interview requires tape recordings of interviews to be offered to asylum seekers to alleviate the procedural unfairness.[104] Whilst the Tribunal has agreed that inconsistencies between expositions of the account at different times can properly be referred to for the purpose of assessing credibility, and the immigration judiciary 'should always bear in mind the circumstances in which these interviews take place and the, often, somewhat amateurish nature of the questioning techniques'.3 The Secretary of State would not be entitled to draw adverse inferences against an applicant who had genuine difficulties in giving details of his asylum claim.[105] The asylum determination process is characterised by long delays between the opportunities for exposition of a case, a factor which leads to 'the further source of unreliability arising principally from the fallibility of human memory',[106] the recollection of dates being an especially unreliable measure of consistency.[107] Discrepancies should be examined with scrupulous care in order to ensure that an account which, at first sight, might appear discrepant is truly inconsistent.[108] For example, a 'true discrepancy cannot be said to exist where the information given is not declared as unequivocal, but approximate'.[109]

(b) Fear of the Authorities

2.14 In order to establish an entitlement to refugee status, an individual will either have to demonstrate a fear arising either at the hands of those in power or will have experienced a failure of protection by the authorities against non-state actors. Neither history engenders enough confidence in authority to put forward a full exposition of a claim at the time when the first opportunity to put it forward arises: 'It is of course well known that asylum applicants will not initially because of their fear of authority tell the full story in relation to what has occurred to them'.[110] Farquharson LJ saw the force of the submission that there is a likelihood of individuals finding themselves in the position of having to apply for asylum being unable to give a coherent account on the occasion of first meeting the authorities.[111] An explanation that a failure to fully set out the account at initial interview is due to a fear of authority must be properly considered.[112] Swinton-Thomas LJ recognised the dangers:

'… 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.'[113]

(c) Interviews

2.15 It is by interview with the Home Office that the asylum seeker often has the fullest opportunity to put forward the detail of their claim for protection: 'the interview plays a central part … it also plays a part in the general assessment of credibility of the appellant's statements made on other occasions'.[114] Thus it is unsurprising that 'authority shows, and justice requires, that any notes which exist of interviews … should be in the hand of the applicants so that they can test the veracity and the fullness of the evidence of the respondent'.[115] There is no requirement in law that interviews comply with the strictures of those conducted under the Police and Criminal Evidence Act. Even where an interview is conducted in relation to a criminal matter (for example with reference to illegal entry), breaches of the Police and Criminal Act Code did not invalidate the record altogether. However, such breaches did require that the contents of the interviews be treated with caution.[116] An immigration judge must deal fairly with a challenge to the contents of an interview and cannot reject such a challenge on the basis of an assessment of credibility infected by conclusions drawn from the very interview which is the subject of dispute. Thus an adjudicator who concluded that, because the appellant was not a credible witness, allegations about the improprieties in the conduct of the interview were unfounded, was censured for following an elliptical process of reasoning: they had relied on discrepancies within the disputed record of interview to reach the original conclusion.[117] There may be circumstances in which an immigration judge is entitled to take account of an unsigned record of interview, at least where the appellant does not challenge its contents.[118] In some cases, discrepancies arising from an interview conducted in unsatisfactory conditions should be ignored, for example where the evidence establishes that fatigue may have been the reason for a story coming across in an incomplete form.[119] Failure to read back the contents of the interview to its subject may make it a very unreliable basis for criticising an account.[120] The screening interview is intended to elucidate details of travel and identity, and it is understandable that a fatigued asylum seeker may not do themselves justice within its confines.[121]

(d) Legal Representation at Interview

2.16 Legal representation is not a prerequisite of an interview being safely conducted. However, before taking comfort from the safeguards that might be expected from representation, it is relevant to bear in mind the fact that solicitors play only a limited role. Indeed, there has been specific recommendation that the Secretary of State adduce the directions limiting the role of solicitors at such interviews.[122] The consequences of a complete absence of legal representation should be borne in mind, as in assessing the reliability of an interview record, the accuracy of which is challenged, the presence of legal representation must be a relevant factor. Thus where it was wrongly believed that an interview had been conducted in the presence of legal representation, the determination was deemed unsafe.[123] It is neither just nor realistic to assert that an unrepresented claimant has had a meaningful chance to get their story across absent steps ensuring procedural fairness.[124]

(e) Witnesses of Trauma; Victims of Sexual Abuse

2.17 The evidence of those who claim to have experienced traumatic past events must be evaluated with especial caution: 'The often traumatic circumstances giving rise to asylum applications commonly result in information coming out seriatim rather than the entire claim being presented in one piece'.[125] Where a claimant is giving evidence of horrific past events, it is questionable whether it is realistic to expect a coherent and consistent story and any judgment of credibility on the basis of relatively minor discrepancies must be carried out with care, bearing in mind the traumatising effect of the sort of experiences being related.[126] The specialist international Tribunal regarding torture, the United Nations Committee against Torture (UNCAT), has warned that complete accuracy is seldom to be expected from victims of torture.[127] Accordingly, an appellant who has given an account of traumatic events is not likely to be able to record or remember their precise times or duration.[128] It should be recalled, too, that ill-treatment in detention is generally inflicted on an individual in a manner intended to promote confusion in its subject.[129] Victims of sexual ill-treatment are particularly likely to wish to avoid recounting that element of their personal histories,[130] and skilled and focused questioning may be necessary to extract this from them.[131] The former consideration may account for documentary gaps in the story as well as a delay in putting their account across in the UK.[132]

(f) Vagueness; Political and Religious Knowledge

2.18 Lack of detail in a claim does not, of necessity, lead to a conclusion that credibility is lacking. The appearance of vagueness may be due to inattentive questioning.[133] Before an account is censured for vagueness or a lack of detail and substance, regard should be had to the UNHCR Handbook:

'… 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.'[134]

Reliance upon vagueness should be accompanied by examples and the full reasoning process as to why a lack of credibility follows from it.[135] Lack of knowledge of the detail of political movements cannot necessarily be equated with a lack of involvement in the broader picture. The Tribunal has warned that it is highly unsatisfactory, in the context of a person educated to a very basic level, for adverse credibility findings to be made based on responses to a sophisticated series of questions.[136] When assessing the evidence of an asylum seeker whose case is based on religion, it may be unrealistic to adjudicate upon their credibility by testing them on other branches of Christianity, or quizzing them on aspects of their faith without a clear benchmark by which to judge them, or expecting unrealistic levels of sophistication.[137]

(g) Dishonesty

2.19 Untrue statements are not of themselves a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case.[138] Dishonesty in one facet of dealings with the immigration authorities cannot lead of itself to a conclusion that the applicant is an unreliable witness.[139] General dishonesty in this country, too, can be an unreliable indicia of the reliability of the appellant's account.[140] Just as the fact that a claimant has lied regarding one element of their application need not be fatal to other elements of the claim, so the adverse effect of admitted untruths in interview may be overcome by credible evidence on appeal.[141] In the context of a primary purpose appeal, but manifestly making a point of general application, Pearl J stated:

'It is always important to remember in cases of this kind that witnesses often lie or are economical with the truth. Quite often they are nervous or confused. In many cases, they have been advised to answer questions in a certain way by friends who simply do not understand the importance of telling the truth. We must not speculate as to why the witnesses said what they did say in this case. But just because the witnesses told lies on one aspect of a case should not inevitably lead to the conclusion that the burden of proof has not been discharged.'[142]

It is perfectly possible for a decision maker to believe that a witness is not telling the truth about some matters, has exaggerated the story to make their case better, or is simply uncertain about matters, but still to be persuaded that the centre piece of the story stands.[143]

2.20 It is in the nature of things that those coming to this country seeking political asylum are unlikely to be equipped with the proper travel and entry documents.[144] The bona fide refugee often has little option but to travel under false pretences when fleeing a persecuting regime[145]: and to reach the UK, they must traverse a panoply of obstacles, including visa requirements, new detection technology, juxtaposed border controls and airside liaison officers.[146] Whilst many claimants fleeing from perceived persecution will be forced to be less than frank in order to secure a passage to a safe country, the principle has limits. It would not necessarily justify reliance on the statements of an applicant whose dishonesty extended to the supply of false information even to their own representatives.[147] Drawing a distinction between the act of arriving with false documents and seeking to rely on them for the purposes of securing entry to the UK, Lord Slynn ruled that the doctrine of illegal entry could not apply to a person who presented himself to an immigration officer and asked for political asylum, neither producing a forged document nor otherwise seeking to deceive the immigration officer. Such an applicant was not a person entering or seeking to enter in breach of the immigration laws, whether or not the person in question carried a passport.[148]

2.21 Dishonesty as to the travel route is a secondary consideration compared with evaluation of the more fundamental question of the veracity of the account of events in the country of origin. There may be good reason disguising the mode of journey to the UK, such as an attempt to protect the methods of operation of those who effected an asylum seeker's departure from their country of origin.[149]

(h) Exaggeration

2.22 Where a decision maker considers that there is a degree of exaggeration, they should make some finding as to whether or not the core or the central material on which the claim is based remains consistent and credible.[150] Hyperbole which does little or nothing to support an appellant's claim should not necessarily be taken to undermine it.[151] Retraction from a statement in which the asylum seeker's case was put overly high 'was capable of speaking in her favour as a truthful person not given to exaggeration'.[152]

(i) Plausibility

2.23 One measure of the credibility to be afforded an account is the story's plausibility.[153] In so far as that device is to be used as a yardstick of truthfulness, though, there is an acute requirement that it be adjudged in the light of the prevailing background evidence regarding conditions in the country of origin, rather than in a vacuum.[154] In Horvath[155] this vital ground rule was reiterated:

'One cannot assess a claim without placing that claim into the context of the background information of the country of origin. In other words, the probative value of the evidence must be evaluated in the light of what is known about the conditions in the claimant's country of origin.'

In consequence, the adjudicator in that appeal had erred fatally in failing to relate the story which he was told at the hearing to the background evidence before him. The High Court has also identified legal error where findings have been sought to be made on credibility, in terms of plausibility, in complete isolation from any conclusions about the prevalence in the country of origin of the type of conduct which the applicant claimed to fear.[156] Doubtless motivated by such concerns, the Law Lords expressed criticisms of the system where the asylum interview was entrusted to an immigration officer at the port of entry with no knowledge of conditions in the country of origin of a claimant for asylum.[157] The duty of evaluating the claim for asylum cannot be discharged by mere assertion that the objective evidence has played its part, so the Tribunal would not uphold the approach of an adjudicator who simply stated, without more, that he had considered carefully the bundle of documents submitted by the appellant's representatives.[158] The immigration judiciary are not to be lightly presumed to have failed to have had regard to the documentary evidence, however.[159]

2.24 As observed above, the plausibility of questions arising from asylum claims must be assessed in accordance with the situation in the country of origin, not according to the standards of the country adjudicating the asylum claim[160] and '[i]nherent 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'.[161] It has been said that the label 'implausible' properly adheres to assertions of events that are truly beyond human experience.[162] This requirement has important consequences for the manner in which a decision-maker in an asylum claim undertakes his task. Perhaps the clearest exposition of the dangers was given in these terms:

'It is clear to us that a repressive regime … may well act in ways which defy logical analysis. A person who is genuinely a victim of such a regime may well find that the partial account he is able to give of its activities as they have affected him is not something which will stand up to a strictly logical analysis. The regime may seem to govern by confusion; it may engage in other activities, of which the Appellant knows nothing; it may simply behave in a way which a person sitting in safety in the United Kingdom might regard as almost beyond belief'.[163]

Thus, in many regimes, the fact that something is 'surprising' does not mean that it did not happen,[164] a principle memorably encapsulated in the Tribunal's recognition that a claim might well be credible although it seemed bizarre and vague when viewed 'from the safety of the Strand'.[165] Findings on plausibility premised on perceptions of a decision-maker and based on inference and reasoning rather than on sight of the witness, seem particularly apt for review on appeal.[166] Given that it is often recognised that truth can be stranger than fiction, the rejection of accounts due to perceptions of their implausibility will, unless care is taken, inevitably lead to witnesses of truth being wrongly damned as liars.[167]

(j) Plausibility and the Reasonable Man

2.25 A subset of the problems arising from the assessment of plausibility is the temptation to analyse questions of likelihood via the device of 'the reasonable man'. In a valuable article, the Master of the Rolls made these comments of great relevance to refugee status determination:

'No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.'[168]

This principle applies equally to the evaluation of the conduct of third parties. Hence it would be wrong to extrapolate that a sp-ecific incident alleged by a refugee claimant is implausible because it runs counter to the general political relationship between groups in the country of origin.[169] One Lord Justice of Appeal was shocked by an immigration judge who found that it beggared belief that a highly intelligent asylum seeker would continue their stand for civil rights having been ill-treated by the authorities: 'there must also be brave and principled people who, for as long as they can stand it, refuse to be cowed and who fight back, if only by joining with others and trying to obtain publicity for what is happening to them'.[170] It is well-established that there are many reasons why a woman who for years has been the victim of control and domestic violence will not seek the intervention of the state'.[171] A dissident may well not tell their families about their activities, in order to protect them.[172]

(k) Extraneous Considerations

2.26 An applicant should not have it held against them that they do not know all the details surrounding the events which form the backdrop of an asylum claim. Thus, for example, in the context of the arrangements for an escape from imprisonment, it has been found dangerous to place weight on the fact that a detainee did not know, and was not concerned to enquire, exactly how much had been paid to secure their release.[173]

6 Relevant Factors Taken into Account by the Secretary of State

2.27 There are certain matters to which the Secretary of State will have regard. These are set out in the current immigration rules, and include a failure, without reasonable explanation, to make a prompt and full disclosure of material facts, either orally or in writing, or otherwise to assist the Secretary of State in establishing the facts of the case.[174] This might include a failure to attend an interview, failure to report to a designated place to be fingerprinted, failure to complete an asylum questionnaire or failure to comply with a requirement to report to an immigration officer for examination.[175] For these purposes, it might be argued that an agent's activities should be imputed to an asylum seeker.[176] The Eurodac system was created pursuant to the provisions of Art 63(1)(a) of the Treaty establishing the European Union, and the relevant regulation provides for the establishment of a Central Unit and for the collection, transmission and comparison of fingerprints of asylum applicants, aliens apprehended in connection with the irregular crossing of an external border and aliens found illegally present in a member state.[177] The Secretary of State may be expected to refer to Eurodac evidence where it is available regarding an asylum seeker's presence in a third country,[178] for which purpose it is admissible,[179] and it is to be taken as probative of this fact unless cogent evidence to the contrary is available.[180] The standard of proof for assessing the accuracy of Eurodac information will be the balance of probabilities, unless the Secretary of State uses it to found a submission of fraud, in which case the higher standard appropriate in such cases will apply.8

2.28 Section 8 of the 2004 Act[181] introduces an ostensibly mandatory requirement that certain 'behaviour' 'shall be taken into account as damaging the claimant's credibility': various species of overt dishonesty,[182] reliance on a false passport,[183] destruction of documents,[184] claiming asylum after receiving an immigration decision[185] or after arrest,[186] and not claiming asylum despite having had a reasonable opportunity to do so in a "safe" third country.[187] Government ministers promoting it explained that it was designed to counter the destruction of documents,[188] and it was said in Parliament that its aim was not designed to oust judicial judgment or avoid a just determination of the issues, so much as to ensure that these issues were taken into account.[189] Noting its 'unfortunate' interference with the well-established rule that the finder of fact should look at the evidence as a whole,[190] the Tribunal quickly emphasised that these were factors to be taken into account, and were not determinative of credibility.[191] The higher courts questioned the constitutional propriety of provisions that might be taken as deeming an asylum seeker incredible,[192] eventually finding that the principle of legality demanded that s 8 had to be read such as to avoid concentration on minutiae that might distract from the global assessment of credibility required by law.[193] The Secretary of State herself disavowed the notion that this was any more than a provision which required certain matters to be taken into account.[194] An Immigration Judge will err if they give s 8 a status of its own in their decision making.[195] Ultimately where s 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.[196]

Regulations provide for the manner in which a person may be notified of an immigration decision for the purposes of s 8 and the time at which a person will be treated as having received the notification.[197] Section 8 applies to claims already in progress at the time of its commencement (1 January 2005)[198] and merits attention regardless of whether it is overtly cited by the Secretary of State.[199]

2.29 When the Secretary of State considers a person's asylum claim, eligibility for a grant of humanitarian protection or human rights claim it is the duty of the person to submit to the Secretary of State as soon as possible all material factors needed to substantiate the asylum or human rights claim, or establish that he is a person eligible for humanitarian protection.[200] The Home Office will then assess the claim on individual, objective and impartial basis[201] in cooperation with the person.[202] The material factors include: the person's statement on the reasons for making an asylum claim or on eligibility for a grant of humanitarian protection or for making a human rights claim;[203] all documentation at the person's disposal regarding the person's age, background (including background details of relevant relatives), identity, any nationality, country and place of previous residence, previous asylum applications, travel routes;[204] and identity and travel documents.[205]

(a) Failure to Claim Asylum in a Third Country

2.30 It is sometimes suggested that a failure to claim asylum in a transit country is damaging to the prospects of a claimant seeking to establish a good claim for asylum.[206] It would be a misdirection to rule that a failure to claim in any intervening country by itself was enough to debar the appellant from making a successful claim for asylum.[207] Attaching negative weight to a period in a third country which is not a signatory to the Convention is particularly regrettable.[208] High domestic, international and academic authorities demonstrate that there is an element of choice open to refugees as to where they may properly claim asylum.[209] Once this principle is acknowledged, the rationale for holding failure to claim asylum abroad against an individual will often fall away. The distinctive and differing responses of various member states to requests for asylum found a rational basis for selecting one destination over another.[210]

2.31 In assessing whether any weight should be given to a decision not to claim asylum abroad, all the factors which motivate the choice of this country above another must be assessed. The presence of family in the UK would assume particular importance.[211] A 'circuitous and more leisurely journey' will be more damning than an expeditious one.[212] Thus it should not be held against the appellant that they preferred, having got all the way to a safe third country, to continue on to the UK where they would experience no language problems if allowed to remain. Nor should they be prejudiced by the fact that they went to a third country, not for the purpose of claiming asylum there, but as the first step in the journey here.[213] It is vital to take into account the state of mind of the asylum seeker in evaluating an explanation as to why a claimant made no claim abroad. If they genuinely apprehended either that any claim for asylum would fail,[214] or that refugees were being returned from that country,[215] then concentration should focus on the veracity of their belief, rather than on the existence of objective evidence as to their expectations being factually accurate.

(b) Failure to Claim Asylum at the Border

2.32 It is not implausible that a person would be advised to seek entry in another capacity and then to claim asylum.[216] However, it can be expected that most asylum seekers who attempt to enter the country before making their claims will do so for the good reasons laid out by the UNHCR, such as the effects of trauma, language problems, lack of information, previous experiences with authority and feelings of insecurity, rather than with a view to falsifying their claims with the assistance of contacts in this country.[217] However, an inexplicable choice to claim asylum following an illegal entry, rather than claim on arrival, may be a relevant factor in the assessment of credit, and to take that into account would not offend the provisions of the Convention.[218] The 'legal' or 'illegal' status of the appellant in this country must not itself affect the validity of the asylum claim and there is no authority for the proposition that an appellant cannot claim to be a refugee in this country because of events that have happened while they are here on the basis of the unlawfulness of their stay in this country.[219] A presumption that a claim of having evaded UK immigration control is inherently incredible has not withstood scrutiny.[220]

(c) Delay in Claiming Asylum

2.33 A stay in the country of receipt pending making an asylum claim may be important where there is no explanation for the delay: applications for asylum must not be refused on the sole ground of delay.[221] Certainly, the length of the delay is of less importance than the reason for it.[222] In the minds of many, the making of an asylum claim is a last resort, and many will not take such an extreme step unless compelled to do so. If an individual can defer the making of a claim, notwithstanding the validity of their fears, many will do so.[223] A failure to claim asylum on arrival is as likely to be due to bewilderment in a strange country as to any insincerity in the asylum application itself.[224] In any event, a short delay would be of no moment in the context of a well-founded claim.[225] As with failures to claim asylum in third countries, delays following arrival should not be treated as decisive.[226] The role of agents, whose interests may conflict with that of the asylum seeker and who may control their behaviour via threats to their family or other duress, must be taken into account.[227]

(d) Intention to Return to the Country of Origin

2.34 There will be occasions where the asylum applicant admits an intention to return to their country in the future. Such a wish would be a natural one and by no means inconsistent with present possession of a well-founded fear of persecution.[228]

(e) Corroboration

2.35 The circumstances of the asylum seeker are such that there can be no strict requirement that they produce corroborative evidence.[229] The immigration rules, in line with the Qualification Directive,[230] hold 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.[231] 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: the person has made a genuine effort to substantiate his claim;[232] 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;[233] 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;[234] 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;[235] and the general credibility of the person has been established.[236]

2.36 As the Qualification Directive is subject to the Refugee Convention, these requirements must be read, so far as is possible, compatibly with the authorities regarding the common autonomous approach to the determination of 'well-founded fear.[237] It might well be dangerous to expect a person in fear of their life or freedom to gather and carry documentary evidence during their stay in the country of origin.[238] It is unsatisfactory for a decision maker to refute a claim on the basis that there is no 'evidence' to support the asserted facts, as the applicant's own statements constitute such evidence.[239] Similarly, an application ought not be denied on account of a lack of substantiation.[240] Undesirable too, is criticism of the truthfulness of an account on the basis that events therein were not mentioned in human rights reports.[241] The fundamental point of principle is made thus by the UNHCR:

'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.'[242]

However, for all that corroboration is not a sine qua non of a credible account, the provision of supporting material may assist an individual to discharge the burden of proof that lies on them. In particular, where documentary evidence particular to an individual's claim is known to be in existence in their country of origin, then the duty of co-operation with the host country's authorities suggests that efforts should be made to obtain it, unless communication with the country of origin is impracticable or undesirable.[243]

(f) Demeanour

2.37 In some areas of the law, the demeanour of the witness is relied on as one indicator of the reliability of an account.[244] However, where the witness is from a different culture to the decision maker and, particularly where evidence is given via an interpreter, then appearance may be a dangerous guide to honesty,[245] and at the very least, caution should be exercised before relying on it.[246] The impression made by a witness in this sense cannot be afforded much weight, and the President thought an advocate correct to disavow demeanour as an appropriate reference point.[247] Whatever the role given to demeanour, it would be wrong to presume that a witness would necessarily give evidence in a particular emotional state.[248]

(g) Language Analysis

2.38 A minister in the Home Office, Angela Eagle, announced on 30 October 2001 that there would be a language analysis pilot to help identify the place of origin of asylum speakers from, among other countries, Afghanistan. Language analysis by an expert, she suggested, would help in identifying the nationality of the speaker.[249] These reports are often submitted in anonymous form, in which case great care should be taken in relying upon them.[250] They have been the subject of academic criticism.[251] Tribunal decisions have called for a rounded assessment of evidence as to ethnicity.[252]

(h) Evaluating Sexuality

2.39 Assumptions about how an individual will act in the future, and the reaction of third parties to their behaviour, must be based on evidence. That an individual did not 'dress in an effeminate manner or affect any effeminate mannerisms' might well constitute impermissible reliance on preconceived assumptions about homosexuality and homosexuals.[253] So too might a decision that a youthful asylum seeker in prison is simply carrying out healthy sexual experimentation faced with the alternative prospect of celibacy.[254]

7 Subjective Fear

2.40 The UNHCR Handbook suggests that the inclusion of a test based on fear in the refugee definition involves 'a subjective element' in the person applying for recognition as a refugee.[255] Based on the subjective element's position at the centre of the refugee definition, it is said that an assessment of credibility is indispensable where the case is not sufficiently clear from the recorded facts.[256] Thus it is unsurprising that the questions of subjective fear and credibility have often been intertwined, an approach which may promote confusion. There will be cases where the assessment of a person's actual fear clearly has a relevance to the evaluation of their evidence, as an individual whose words and actions are inconsistent with the particular fear they claim to hold or have held, may find their credibility impaired.[257] However, there are also cases where a person is telling the truth as to historical events but has acted in a way which might be held to evince no subjective fear. In the context of the refugee, it will often be unsafe for determinations of overall credibility to attach weight to inferences drawn from conduct said to be inconsistent with subjective fear, particularly in the light of the comments of Sir Thomas Bingham MR[258] as to the unwiseness of any attempt to adjudicate fact based on the responses of a person of a different culture to a particular situation. In any case where the decision-maker intends to make inferences from the assumed presence or absence of subjective fear, it will be essential to take into account this advice from the High Commissioner for Refugees: 'An evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions'.[259]

2.41 The Tribunal has noted that in certain cases it may not be strictly necessary for such a fear to be held. Where there is a clear objective basis for a fear, it is difficult to imagine that there is no subjective fear, unless the appellant is particularly brave or foolhardy. Placing too much weight on the subjective element of the refugee definition risks different treatment of persons similarly placed and might arbitrarily penalise the courageous.[260] The relevant issues have been formulated thus:

[W]e understand "fear" in the context of an asylum claim to be nothing more nor less than a belief in that which the appellant states is likely to happen if he returns to his country of origin … one should not approach the issue on the basis of a need to assess whether a person is "afraid" in the sense of being fearful rather than courageous … although logically the establishment of the fear may precede any consideration of whether it is well-founded fear, establishing that it is well-founded will almost always show the existence of fear.[261]

8 Objective Risk

2.42 The assessment of risk lies at the heart of status determination. Former President of the Tribunal Pearl J warned that even in cases where the appellant is found to lack credibility as to past events, there may yet be established a well-founded fear of persecution on a return. Decision makers at all levels have been urged to keep in mind the fact that it is the evaluation of prospective risk, not past fact, which is paramount;[262] the less credible an asylum seeker, though, the harder will usually be their task in establishing themselves to be at risk.[263] The characteristics of an individual asylum seeker play an important part in approaching their entitlement to refugee status, which militates against excessive citation of determinations in other cases as 'precedent',[264] albeit that fairness and justice point in favour of asylum status determination [being] consistent between claimants, as shown by the system of Country Guidance.[265] The adoption of a rigid classification of risk categories risks a lack of focus upon the case at bar. It is the asylum seeker's claim to fear persecution in the particular circumstances of his or her case and not whether that applicant falls into categories set out elsewhere which should be the focal point for consideration.[266] The exercise must be conducted with the consequences of the gravity of possible error to the fore, as there is a special responsibility on any court which examines determinations where the result of a flawed decision may imperil life or liberty.[267]

'The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny.'[268]

'That is not a mantra to which only lip service should be paid. It recognises the fact that what is at stake in these cases is fundamental human rights, including the right to life itself.'[269]

2.43 High judicial authorities and the UNHCR Handbook agree on the need to adjudicate carefully on the individual's circumstances. Lord Clyde in Horvath wrote in these terms:

'It is the applicant's fear which is in issue, and so matters particularly relating to him will be important. For example his prominence in society or political life, or anything else which might make him a particular target of persecution may be relevant. The history of past violations, the extent to which the applicant has personally been directly affected, either by being the victim of violence or the recipient of threats of violence, considerations of geographical location, of all the factors which might stimulate or facilitate a violation, will be among the circumstances to be taken into account. As also will factors which may discourage or deter or render a violation less likely. The political and legal situation in the country should be taken into account. And among those will be the element of the protection which the state affords.'[270]

The person charged with performing this task must take everything material into account, employing sources of information going well beyond the testimony of the applicant and including country reports, expert testimony and sometimes specialised knowledge of their own: 'everything capable of having a bearing has to be given the weight, great or little, due to it.'[271] The nature of the task requires the taking of a balanced view of the documentary material as a whole, rather than discounting the opinions of experienced human rights rapporteurs because of conflicts between different sources: 'we do not see our task as excluding evidence which taken of itself would well be credible simply because it conflicts with other evidence.'[272] The interaction of elements of a case must be considered cumulatively, for a combination of factors may create a risk of harm that would not be present absent all of them.[273]

2.44 Account will be taken of all relevant facts as they relate to the country of origin or country of return at the time of taking a decision: including laws and regulations of the country of origin or country of return and the manner in which they are applied;[274] relevant statements and documentation presented by the person including information on whether the person has been or may be subject to persecution or serious harm;[275] the individual position and personal circumstances of the person, including factors such as background, gender and age, so as to assess whether, on the basis of the person's personal circumstances, the acts to which the person has been or could be exposed would amount to persecution or serious harm;[276] whether the person's activities since leaving the country of origin or country of return were engaged in for the sole or main purpose of creating the necessary conditions for making an asylum claim or establishing that he is a person eligible for humanitarian protection or a human rights claim, so as to assess whether these activities will expose the person to persecution or serious harm if he returned to that country;[277] and whether the person could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.[278] Reliable and up-to-date information shall be obtained from various sources as to the general situation prevailing in the countries of origin and transit, and is to 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.[279]

(a) The Reality of Risk

2.45 The asylum applicant must demonstrate that there is a reasonable degree of likelihood of his fears eventuating. The English Court of Appeal once took the view that the 'well-founded fear' required by the Refugee Convention might encompass fears which were fully justified on the face of the situation as it presented itself to the person who was afraid, albeit objectively misconceived.[280] This approach was found incorrect by the House of Lords. Their Lordships considered that the Convention's object is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those whose fear of persecution is in reality well-founded:[281]

'[T]he general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country, and does not extend to the allaying of fears not objectively justified, however reasonable these fears may appear from the point of view of the individual in question.'[282]

(b) Conjecture and Inference

2.46 The decision maker should forgo conjecture in favour of proper inference:

'The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.'[283]

However, given the nature of the issues, the low standard of proof and the evidential difficulties faced by a genuine refugee applicant, there is a requirement that the decision-maker engage in a certain degree of rational speculation in favour of the asylum seeker.[284] Nevertheless, it remains the case that the person seeking international protection retains the burden of proof and, if they cannot adduce evidence sufficient to discharge that burden, then they will not be able to establish any entitlement to status.[285] None of this would entitle conjecturing against an asylum seeker.[286]

(c) Objective Risk: Timing of the Enquiry

2.47 The decision maker should evaluate the case on the evidence available at the time the application is determined.[287] Recent statutes have ensured appellate consideration focuses on the evidence subsisting at the date of the hearing.[288] This represents statutory adoption of the ruling of the Court of Appeal in Ravichandran, in which the same approach was reached by construction of the statutory wording of the Asylum and Immigration Appeals Act 1993, s 8, wherein the phrase 'would be a breach …', was deemed to connote an investigation of the present and future rather than an historic enquiry.[289] Public policy also supports such an interpretation, as the expertise of the appellate authorities is most easily focused on the current situation in any given country. The appellate machinery for asylum appeals under the Asylum and Immigration Appeals Act 1993 was said to operate more obviously as an extension of the decision-making process than in other immigration cases,[290] although that equation of the executive with the judiciary sits uneasily with the requirement of judicial independence.[291] The Court of Appeal never addressed the situation where an appeal was brought on grounds of asylum solely under the Immigration Act 1971, s 19, which might have remained governed by High Court authority to the effect that the appeal should be determined on the basis of the situation prevailing at the time of the decision of the Secretary of State.[292] The principle is of such importance that it permitted a purposive interpretation of the section of the Immigration and Asylum Act 1999 that gave rise to appeal rights against a grant of limited leave, for even though such an appeal was brought on the ground that 'requiring him to leave the United Kingdom after the time limited by that leave would be contrary to the Convention' (emphasis added), the Court of Appeal has ruled that the relevant date for assessing risk is that of the hearing.[293]

9 Objective Risk: Factors in the Assessment

(a) Focus on the Country of Origin

2.48 The risk must be assessed in the context of circumstances prevailing in the country in which it arises and not by the standards of the country in which the claim for asylum is made. The Tribunal has warned:

'What is often extremely difficult is to avoid, expressly or implicitly, recharacterizing a risk based on the perceptions of reasonability or plausibility from the vantage point of the country of adjudication.'[294]

Canadian authority supports this approach:

'We who live in a democratic society, where order is maintained by peaceful means, may find it hard to believe that the authorities would harass someone, either directly or through his family simply because he bore a name that they held in abomination. However, we must keep our personal opinions to ourselves, and instead try to place the situation in its proper context …'[295]

(b) Sources of Information; the Fate of Returnees; Diplomatic Assurances

2.49 There is in general no duty on the Secretary of State to pursue investigations in the country from which the applicant has fled.[296] Where enquiries are made, great care must be taken as to the weight given to the information that they unearth. It might be naïve to give much credence to statements from the officials of states from where asylum is sought.[297] The unreliability of such sources has been reiterated by the Court of Appeal, where it was said that neither questions addressed to the security services nor to the government of the country in question could be considered a reliable basis of evidence regarding security practices.[298] Diplomatic assurances are sometimes given,[299] but these are much harder to monitor regarding enforced returns where there may be a risk of serious harm in the future than in those cases where the assurance takes the form of undertaking to refrain from capital punishment,[300] leaving International Courts unpersuaded of their reliablity.[301] Ultimately it is a question of fact if they can be relied on.[302] A possible source of evidence which would be more acceptable, at least where the Secretary of State alleges that a particular state is in general 'a safe country of origin,' is hard evidence of people being returned to 'live happily ever after': or not to do so, as the case may be.[303]

(c) Prominence of the Individual

2.50 A casual assumption that a particular category of person would escape the adverse attention of the authorities can lead to conclusions which do not withstand examination. It is an axiom of proper status determination that the level at which an asylum seeker is involved in any political activities is not of itself conclusive of exposure to a risk of persecution.[304]

'In essence the extent of political involvement or activity is not determinative of the claim but, rather most important is the treatment that the claimant has received or may receive for the political activities. Minimal political activity can give rise to a well-founded fear of persecution under certain circumstances … We think it important to bear in mind that the test is what the ruling government's view is of the appellants' conduct.'[305]

In any event, the public profile of historical activities may be unimportant once a person has established that they have, as a matter of fact, come to the attention of the authorities, for it is likely that in such circumstances they will feature in official records in future.[306]

2.51 Presumptions that a particular course of conduct by the authorities leads inexorably to a conclusion that a person is not at risk may well be hazardous. Release from detention does not necessarily equate to an absence of interest in an individual by the authorities, as it is perfectly possible that one dose of ill-treatment would be thought sufficient to deter the sufferer from further activities;[307] equally, the fact that threats do not come to fruition may not necessarily support a conclusion that they were not meaningfully made.[308] Addressing the practices of the police in the Punjab, the Refugee Status Appeals Authority gave this guidance that speaks to situations beyond those in which it arose:

' … it is common in such cases for police activity to be unpredictable and spasmodic, though their interest remains constant. It is a common feature of cases heard by the Authority that police will visit at irregular intervals. On occasion those intervals are closely spaced, on other occasions they are more widely spaced. For that reason care must be taken to ensure that inferences are drawn not only from the regularity of the visits, but also from the equally fundamental factor, namely the suspicions held by the police.'[309]

Unduly high expectations of the evidence available of state interest should not be put onto the shoulders of asylum seekers. It has been said that it seems unreasonable to expect evidence of a blacklist kept by security forces to be produced.[310] There is an obvious need to scrutinise the de facto rather than merely the de jure situation abroad. Accordingly, the Court of Appeal took comfort from the decision-maker being conscious of the fact that 'mere signature of an Agreement … does not necessarily indicate either that a state genuinely wishes to, or in practice can, safeguard all the human rights of its citizens'.[311] Taking implicit cognisance of that principle, the fact that an organisation was permitted to operate could not automatically lead to a conclusion that association with it carried no threat.[312] A claimant fearing extra-judicial ill-treatment should not have their claim subjected to an analysis which concentrates unduly on political freedoms in the country and the ability to engage in the democratic process.[313] Any delay in leaving the country of origin following the last incidents of cited persecution is often the subject of particularly close scrutiny. In carrying out that examination, the decision-maker must evaluate the precise circumstances responsible for any apparent lack of interest in the appellant.[314] The same principles operate, perhaps even more poignantly, in expectations based on the behaviour of non-state actors, where it must be recognised that future actions may not ultimately be capable of logical analysis: for example, where the principal actor is a terrorist organisation and, as such, less likely to act according to the rules of rational behaviour.[315]

(d) The Experiences of the Claimant's Family

2.52 It will be necessary to take into account not only an applicant's own background but also that of his family.[316] A lack of persecution or harassment of a claimant's relatives may be of neutral significance in assessing the former's safety.[317] Aside from that proviso, the experiences of family members may actively support a claim for asylum.

'It is our conclusion that the cumulative effect of the foregoing is that it would be unreasonable to expect the appellant to avail himself of the protection of the Government of India. There has been a consistent pattern of failure by that government to afford effective protection. If anything, the pattern establishes a systematic abuse of the fundamental human rights of members of this family.'[318]

(e) Generic Risk

2.53 Where asylum seekers[319] face risks that are generic rather than specific, the assessment of real risk has been the subject of significant discussion. In MI Pakistan the Tribunal, faced with the question of whether ill-treatment of those in pre-trial detention was so prevalent as to put any individual detainee at risk, adopted the 'gross and systematic' standard, that which authorised the Commission on Human Rights to commence an examination relevant to gross violations of human rights[320] (though the fact that the trigger for such an investigation was 50 complaints a year in the delinquent country suggests that 'gross' did not connote a high rate of incidence).[321] The Court of Appeal has found this unobjectionable where it has been used as a synonym for the 'real risk' standard;[322] but it has counselled against permitting that form of words to elevate the standard of proof above that set down in law.[323] More recent Tribunals have, with appellate approval,[324] preferred the language of 'consistent pattern',[325] whilst the Strasbourg Court most recently spoke of a need to establish that 'there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned.'[326]

10 Judgments on Foreign Countries

2.54 The decision maker should not be prevented from making accurate determinations of the risk faced by asylum applicants by any concern that diplomatic relations with a foreign state might be prejudiced by a declaration that persecution exists within its territory. Indeed, it appears that this consideration weighed so heavily with the High Commissioner for Refugees that it once led his Office to argue against the need for an objective pronouncement on risk in every case.[327] In Sivakumaran[328] Lord Goff concluded that he was confident the authorities would not feel in any way inhibited from carrying out the UK's obligations under the Convention by reason of their having to make objective assessments of conditions prevailing in other countries overseas.[329] The dangers have been made clear in American law:

'It is also important to remember that a grant of political asylum is a benefit to an individual under asylum law, not a judgment against the country in question. When the international community was considering the 1967 Refugee Protocol, the UN General Assembly made clear that "the grant of asylum by a State is a peaceful and humanitarian act and … as such, it cannot be regarded as unfriendly by any other state." … This distinction between the goals of refugee law (which protects individuals) and politics (which manages the relations between political bodies) should not be confused in charting an approach to determining motive. While it is prudent to exercise great caution before condemning acts of another state, this is not a reason for narrowly applying asylum law.'[330]

11 The Relevance of Past Events

2.55 It is difficult to surpass the asylum seeker's personal history as a guide to the likelihood of future events.[331] The High Court of Australia explains its role in Minister for Immigration and Ethnic Affairs v Guo:[332]

'The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.'

12 The Relevance of Past Persecution

2.56 Given the importance of past events in general as a guide to future ones, it is obvious that the fact of past persecution is a matter to be strongly taken into account when assessing the risk of its future recurrence. The existence of 'an historic fear' is not sufficient to establish a claimant's status in itself, even for persons unable to return to their country,[333] but it constitutes important evidence to justify a claim of a current well-founded fear.[334] Professor Hathaway's test was approved by Stuart Smith LJ in the Court of Appeal:[335]

'Where evidence of past maltreatment exists, however, it is unquestionably an excellent indicator of the fate that may await an applicant on 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 risks.'

This has now received legislative force given its inclusion in the Qualification Directive as shown by the immigration rules:

'The fact that a person 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.'[336]

A decision-maker minded to determine a claim which includes an element of past persecution on the basis that it evinces 'no risk' should explain their reasoning clearly.[337] Nevertheless, past persecution does not reverse the burden of proof (despite an arguable suggestion to the contrary in the UNHCR Handbook),[338] but it is an important part of the body of evidence that an asylum seeker can use to aid their application.[339] In many cases, it may effectively be determinative: 'If … there is no significant change in the situation and the appellant was persecuted for a convention reason before he left, it would be difficult to see how the decision could not be favourable to him'.[340]

2.57 The corollary of the principle that the existence of past persecution does not always establish a risk of its recurrence is that its absence is by no means fatal to the claim. Nothing could be more perilous than for decision-makers effectively to require an individual to wait until they know for sure that the government suspect their involvement in matters for which persecution might result.[341] Physical harm is not a prerequisite of establishing refugee status.[342] The fate of persons in a similar position to an asylum claimant in the country of origin offers a valuable measure of the future that awaits them.[343] Uncertainty as to a person's fate because of a lack of documented returns to a country may demonstrate more a lack of evidence than it does an absence of risk.[344]

13 Change of Circumstances in the Country of Origin

2.58 Given that past persecution may be probative of future risk without an improvement in the country's circumstances, it is important to explore the question of change carefully. Change has to be established by evidence. Given that the party wishing to show an amelioration of domestic conditions will be the Secretary of State, it will be his representatives who seek to point to material establishing that state of affairs,[345] albeit that the trier of fact may be satisfied of change by evidence from any source (for which reason it is incorrect to suggest that an evidential burden always lies on the Home Department).[346] Professor Hathaway writes that a change of circumstances sufficient to invoke the Cessation Clauses must be of substantial political significance, meaningful and durable.[347] The same considerations have affected judicial decision-making in the context of determining original entitlement to status. Thus Simon Brown LJ indicated that the quantum of change may have to be significant, referring to the necessity 'for the returning State to show a major change of circumstances in the asylum seeker's home State',[348] and Mason CJ in the High Court of Australia referred to 'compelling evidence'.[349] Both judges echo the UNHCR Handbook with its requirement of 'fundamental changes in the country',[350] as indeed does the Tribunal with its desire for 'clear evidence'[351] and the European Union position paper's 'radical change of conditions'.[352] It is hard to deny that refusing protection to an asylum seeker merely because their claim is assessed at a time of a transitory improvement seems inconsistent with the humanitarian objective of the Convention.[353] The Tribunal has recognised that, faced with a fluid situation, the relevant question is the durability of the changes.[354] Formal changes abroad offer no comfort if they do not address the underlying problems that led to departure,[355] which should always be analysed in the context of the individual's plight.[356]

2.59 In Arif,[357] citing English learning,[358] the Court of Appeal considered that there would be cases where the principles underlying the Cessation Clauses might be applicable where there was a well-founded fear of persecution in the past, yet refugee status had not been recognised. In those cases there would be an evidential burden on the Secretary of State to establish that an appellant could safely be returned home.[359] Arif has been distinguished in subsequent decisions, its reasoning being said to be predicated on acceptance of established refugee status[360] and because the form of harm faced by the asylum seeker therein took the form of prosecution for past conduct, punishment for which would survive an alteration in the political landscape.[361] The unattractiveness of expenditure of judicial resources on determining a past entitlement to refugee status has clearly weighed with the Tribunal,[362] though there has been judicial willingness to assume that the principle was applicable where it was implicit from the first instance findings that the appellant was at one stage entitled to be treated as a refugee.[363] Representatives were at one time discouraged to cite the case,[364] but the Law Lords having reasserted its correctness, it is once again in the ascendant.[365]

14 Risk Based on Future Conduct

2.60 Suggestion is sometimes made that an individual may be expected to avoid persecution by a particular course of future conduct. It is important that such conduct does not fall into a category which itself infringes human rights and that there is sufficient certainty that the conduct in question will secure the anticipated result. For example, if the only way a person returning to his country of origin can avoid persecution is by offering a bribe, it is difficult to conclude that it is truly safe to return,[366] Although bribes themselves are not necessarily oppressive and may be expected in some countries;[367] it may be assumed that the attention of those who seek them will be directed at those with the resources to pay.[368] But some forms of moderation of conduct can be expected of an individual before they are entitled to claim international protection[369] However, a person who credibly asserts that they will in future act in a particular fashion, an assertion which will be particularly credible where the mode of conduct is in line with the future exercise of fundamental human rights including manifesting their sexuality,[370] will be able to rely on the risks of harm that ensue.[371] It cannot be assumed that religious converts will deny the fact of their conversion,[372] and in general asylum seekers cannot be expected to lie on return,[373] nor to hide their identities.[374] Keeping a low profile will not assist someone who is already on the record with the authorities abroad, or whose relatives might inform on them.[375]

15 The Country of Origin – Departure and Return

(a) Delay in Leaving the Country

2.61 Where there is a period of time between, on the one hand, the last incident(s) leading to the claimed well-founded fears, and, on the other, the departure of the individual from their country of origin, the enquiry may be expected to dwell on whether a lack of harm eventuating during that interval has a broader implication for the case. The question arises as to whether such ostensible safety is due to the absence of risk, to chance or to ephemeral opportunities to evade official interest: 'A person successfully hiding from his persecutor can scarcely be said to be experiencing no problems'.[376] Continuation of the activities which led to the threat of persecution is not necessarily evidence of an absence of objective risk. A decision-maker who placed undue weight on the same would accordingly fail to distinguish 'fortitude in the face of danger from absence of fear'.[377] In order to isolate the process of reliable status determination from decisions overly reliant on historical ability to find safety over a short timescale, it is advisable to concentrate on the reasons for the lack of difficulty and the overall position of the persecutors:

'Due to a combination of his luck and diligence he was able to avoid the police. It would be illogical to use these facts to argue that as nothing further has happened since 1986 there is no longer a well-founded fear of persecution. The focus should rather be on the intentions of the police.'[378]

(b) Departure from the Country of Origin

2.62 The manner of departure from the country of origin often looms large in the mind of the decision maker, as it is likely to represent the last moment when the applicant for asylum experienced a direct interface with their domestic authorities. Ease of exit may be synonymous with an absence of interest in the individual and, as such, may count against the applicant either in determining the veracity of their account or in judging the level of interest held by the authorities in the individual if the account is true. However, placing overmuch reliance on departure as an indicia of truth or risk may be hazardous. The fact that a claimant was able to leave his country without difficulty bearing his own passport may not constitute a matter of importance absent objective evidence to suggest that persons in his position were being refused exit permits.[379] In any event, there is a danger in presumptions based on efficient administrative systems with which the decision-maker is familiar, as they may not be transferable to regimes where civil strife or endemic corruption provide a different backdrop against which the claimant's account must be assessed.[380] Nor can it simply be assumed from the administrative act of issuing a passport that protection from persecution would be forthcoming to the holder:

'[T]he possession of a passport, whether valid or forged, must be seen as an essential modern-day prerequisite for flight from persecution rather than signifying in some abstract legal way that the holder of the passport has made a conscious decision to avail himself of the protection of the country which has issued the passport and in which the persecution is feared …'[381]

Where a compelling case is made for recognition of refugee status, it may be inappropriate to take a point against an individual on account of their exit through normal channels without problems.[382] In cases of non-state persecution, the manner of departure is unlikely to offer much assistance to the decision-maker.[383]

(c) Return to the Country of Origin

2.63 The Cessation Clauses may provide guidance in dealing with situations where an asylum seeker returns to their country of origin prior to final determination of their status abroad. In those circumstances, the nature and purpose of any return home will have to be evaluated as to whether any consequences as to the risk to the appellant can be deduced from the visit. Thus 'visiting an old or sick parent will have a different bearing on the refugee's relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations'.[384] Schiemann LJ makes it clear that the question is one of fact rather than presumption:[385]

'When, as here, there is a father's death and a widow's distress, to return to comfort the mother may well be evidence of filial bravery and affection rather than evidence of the lack of danger or fear of danger.'

(d) Risks arising from mode of return

2.64 Asylum seekers may face risks[386] arising from the manner in which they travel to their home area from the point of return.[387] Although it might be thought that an individual who is safe in their homeland does not need international protection, where they cannot be returned there other than via a dangerous route, they remain eligible for status.[388] Where the route and method of return are either expressed in, or can be inferred from, the Secretary of State's decision, such risks are eligible for refugee status assessment.[389] Mode of return must be sufficiently precise and foreseeable before an inference is possible.[390] Method of return includes all the practical issues that may attend removal, from documentation to the provision of escorts.[391] In cases where route and method are not cognisable, an Immigration Judge should indicate that they have left risk on return undetermined, so that before removal directions are set, there is an opportunity for this to be considered,[392] and any challenge made by way of judicial review.[393] A returnee must be clearly notified of the mode of return so they can make such arrangements as can reasonably be expected of them: a lack of notice of the timing and mode of return would be especially regrettable in such cases.[394] Country guidance decisions should address route of return where this is feasible.[395] Where the asylum seeker lacks credibility, it may not be possible to determine their home area (and hence whether they would face dangers en route there).[396] These principles regarding route of return does not apply to risks of harm that eventuate at the airport, however.[397] Where an asylum seeker's country of return will not issue travel documents, there is no doctrine of 'lawful return' (being one which holds that return is predicated on entry with valid documents): this would be to speculate unduly, to impermissibly take account of modalities of return, to take account of factors that are not reasonably foreseeable, and to read an additional requirement into the Refugee Convention.[398] It must be presumed that return is to take place by lawful means.[399]

2.65 On several occasions the Tribunal has closely analysed risks arising at the place of entry.[400] It will be necessary to determine the capacity in which a return will be made: failed asylum seekers may be treated differently from normal returnees,[401] and the class of return may well be apparent from the flight manifest, the presence of escorts, or laissez-passez travel documents.[402] Evidence from failed asylum seekers who have been returned to their country and made it back to the UK is likely to be problematic where their credibility was originally damaged,[403] for which reasons all efforts should be made to obtain details of their immigration history.[404] Contentions that returnees are seen as traitors must be evaluated on the evidence,[405] though without unrealistic standards being applied as to the logical behaviour of security forces,[406] and taking into account what evidence the UK authorities have themselves marshalled.[407] The lack of interest shown by the UK authorities in how returns are made has been found alarming by the Tribunal.[408] Significant expressions of concern by NGOs and others may have a cumulative weight that transcends individual complaints of harm.[409] The actual knowledge of NGOs of the fate of returnees is likely to receive close scrutiny.[410] The need to pay bribes in order to traverse immigration control will not be necessarily be persecutory absent some element of oppression.[411]

16 Assessing Risks from Post-Departure Events

(a) Fears Arising from Enquiries by the Status Determination Authorities

2.66 The Secretary of State has a right, although not a duty, to make his own investigations in the country of origin, in order to determine the reality of the fears apprehended by the asylum claimant.[412] Such enquiries need be made with a degree of caution, for there is a danger that they will create risks of harm previously absent, or enhance pre-existing ones otherwise not well-founded.[413] For this reason the Tribunal stated such enquiries are forbidden by the duty of confidentiality prior to final determination of status;[414] if they have been made, then the Secretary of State should be ready to give full details of any investigations, so that those considering the matter on appeal can be satisfied that no additional risks subsist.[415] Whilst a breach of confidentiality[416] in dealing with the asylum claim itself was not unlawful per se, such disclosures clearly sound in the assessment of objective risk.[417]

(b) Fears Arising from Claiming Asylum

2.67 Departing the country of origin may itself create risks that would not have been present had the individual remained in the territory. These range from a heightened risk from vigilant officials at border controls for a person whose individual profile was such that they might never have come to harm had they remained at home, to the case of a person with no prior fear of harm for whom a return may involve suspicion of non-patriotic sympathies. The legal principles that govern these cases are discussed later in the book;[418] factually, they raise particular issues. Relevant considerations in the assessment of risk will include the practical difficulties that an individual will face in obtaining, or recovering, documents that might smooth their passage home.[419]

[1] Professor Guy Goodwin-Gill in The Refugee in International Law (1996) Clarendon Press, Oxford. Schiemann LJ in the Court of Appeal in Adam v Secretary of State for the Home Department [2003] EWCA Civ 26 remarked that a persecuted minority is a 'candidate for the unusual'. Professor James C Hathaway in Rebuilding Trust – Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (December 1993) at pp 6 and 7, cited with approval by Rodger Haines in the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 75574 (29 April 2009), described refugee status determination as: '… among the most difficult forms of adjudication, involving as it does fact-finding in regard to foreign conditions, cross-cultural and interpreted examination of witnesses, ever-present evidentiary voids, and a duty to prognosticate potential risks rather than simply to declare the more plausible account of past events … These evidentiary and contextual concerns make departure from traditional modes of adjudication imperative. We need expert, engaged, activist decision-makers who will pursue substantive fairness rather than technocratic justice. We must not view refugee claimants as opponents or threats, but rather as persons seeking to invoke a right derived from international law.'

[2] R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147.

[3] Governor of Pentonville Prison, ex p Fernandez [1971] 1 WLR 987.

[4] Per Lord Diplock in Governor of Pentonville Prison, ex p Fernandez [1971] 1 WLR 987.

[5] R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147 at 150, see para 2.1 n 2. The necessity of a low standard of proof has been recognised internationally, see eg Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, a decision of the High Court of Australia, in which the majority of the High Court approved the expression 'a real chance of persecution' as the appropriate notion, taking their lead from Atle Grahl-Madsen The Status of Refugees in International Law vol 1 (1966): such an expression was to be employed 'because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring', per Mason CJ; followed by the standard-setting pair of New Zealand Refugee Status Appeals Authority decisions in Refugee Appeal No 1/91 Re TLY and Refugee Appeal No 2/91 Re LAB (11 July 1991). In Canada, the prevailing standard is that of a 'reasonable chance' or 'good grounds': Adjei v Canada (Minister of Employment and Immigration) [1989] 2 FC 680 (FC, CA).

[6] Joksimovic (12594; 11 October 1995). Kirby J in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 concluded (para 31 of his judgment, as cited by Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271): 'Ultimately the question is whether the delegate [ie the decision-maker] allowed her mind to consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the 'real', as distinct from fanciful, 'chances' would bring if the applicant were returned to China.' 'A common formulation, distilled from Sivakumaran, is that the applicant must show a real, as opposed to a merely fanciful risk': Laws LJ in R v Secretary of State for the Home Department, ex p Adan, Subaskaran and Aitseguer [1999] Imm AR 521. The Sivakumaran standard of proof has been described as analogous to a test based on the contrast between a real risk and a residual one, the former being defined as a risk 'which may be very small, but to be taken seriously' juxtaposed against a vague, distant possibility: Rana (G0070; 22 December 1998). As expressed in New Zealand, the applicant must establish that, vis-á-vis the events which he wishes to establish, there is 'a real chance as opposed to one which is remote': New Zealand Refugee Status Appeals Authority in Refugee Appeal No 523/92 Re RS, 17 March 1995. The fundamental question would be whether the risk at bar was so remote or unlikely that it fell to be discounted, measured against the concept of the reasonable degree of likelihood: Umasuthan (G0037; 18 February 1998). United States Court of Appeals for the Second Circuit in Tambadou v Gonzales (02-8424-ag, 3 May 2006) citing Diallo v INS, 232 F.3d 279, 287 (2nd Cir, 2000), itself citing INS v Cardoza-Fonseca, 480 US 421, 431 (1987): 'A fear is objectively reasonable "even if there is only a slight, though discernible, chance of persecution.'

[7] Munby J in the Administrative Court in R (Martin) v Secretary of State for the Home Department [2006] EWHC 799 (Admin) (24 February 2006): '21 … The third thing which was significant is the comparatively limited number in absolute terms of the incidents which Dr Smith describes. Now, Ms Weston, appropriately if I may say so, cautions me against too vigorous a tallying-up of the numbers. She makes the point, which for present purposes I entirely accept, that there is, as I have mentioned, very significant under-reporting of such incidents. But as to that, I would make this observation: the point being made by the Tribunal in PS was not that because there were only 25 deaths amongst the Tamil population of 400,000 or 450,000 that the risk was a risk to be evaluated arithmetically by a comparison of 25 with 450,000, but that the order of magnitude was very small indeed. Putting the same point the other way round, however much one inflates Dr Smith's list having regard to under-reporting, one is, it seems to me, concerned with numbers which overall are, on any basis, almost vanishingly small when contrasted with the overall population, not of Tamils in Colombo but of former members, operatives or associates of the LTTE in Colombo, that being, of course, the relevant and true comparison.'

[8] Per Peter Gibson LJ in Faraj (CA) LTA 98/6962/CMS4 31 March 1999.

[9] INS v Cardoza-Fonseca 480 US 421 (1987), at 440, citing INS v Stevic 467 US 407 (1984). See also Montecino v INS, 915 F 2d 518, 520 (9th Cir 1990). In concluding that the Protocol envisaged the establishment of status for those who demonstrated a risk to a standard lower than the balance of probabilities, Stevens J relied principally on academic commentary, eg Grahl-Madsen The Status of the Refugee in International Law (p 180); Professor G Goodwin-Gill The Refugee in International Law (1983 edn) pp 22–24. Some guidance as to the manner in which the test should be operated is found in decisions of the Australian courts: 'the substance of the real chance test will be circumvented if the deciding factor is a finding on the balance of probabilities in relation to a past event and there was no analysis of the possibility that it was inaccurate. It is simply not correct to define this conundrum in terms that if something happened in the past there is a real chance that it will happen again, and if it did not there is no real chance that it will happen in the future,' see Einfeld J in Guo Wei Rong v Minister for Immigration and Ethnic Affairs, Full Court (26 February 1996, unreported) No 89 at 18. The New Zealand Refugee Status Appeals Authority in Refugee Appeal No 72668/01 (5 April 2002) for a full consideration of the burden of proof concept in refugee cases. 'From the time the Authority first sat in 1991 it has adopted and applied the decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA) (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ) that a well-founded fear of being persecuted is established when there is a real chance of such persecution occurring. This means that there may be less than a 50% chance of persecution occurring and the chance can be as low as 10%. But the chance must be substantial as distinct from a remote chance.' Laws LJ in the Court of Appeal in Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807: '… its perceived incidence may well be less, perhaps a good deal less, than a formal probability of 51 per cent or more.'

[10] Mario (14453; 13 January 1997); Chandilyan (15064; 19 May 1997). Lord Woolf MR in R v Secretary of State for the Home Department, ex p Iyadurai [1998] Imm AR 470; [1998] INLR 472: 'It is to be noted that none of their Lordships descended so far as to talk in the terms of percentages of risk. It would be wrong to do so.'

[11] Directive 2004/83, Arts 2(c) and (e).

[12] See eg the European Court of Human Rights in Soering v UK [1989] ECHR 14038/88. Not that the Karanakaran test is inapplicable to the assessment of real risk, even in an Art. 3 case, see Sir Anthony Clarke MR in MT (Algeria) & Ors v Secretary of State for the Home Department [2007] EWCA Civ 808 (30 July 2007), at 162.

[13] Sedley LJ in the Court of Appeal in PS (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 1213 (6 November 2008): "The single test of whether a fear of persecution or ill-treatment is well-founded is whether on the evidence there is a real risk of its occurrence or recurrence. This straightforward formula now replaces the sometimes confusing variants which have been used over the years in leading cases here and abroad: see Macdonald Immigration Law and Practice, 7th edn, §12.27." MA (Draft evaders; illegal departures; risk) Eritrea CG [2007] UKAIT 00059 (26 June 2007): '221 … there is no suggestion that the Regulations or the Directions were intended to introduce a change in either the burden or standard of proof.'

[14] [1988] Imm AR 147.

[15] Popplewell J in R v Immigration Appeal Tribunal, ex p Kumar [1995] Imm AR 55 at 58. It would be acceptable to state clearly the standard of proof applicable although to omit the name of the case: Kamani (12980; 1 February 1996).

[16] Lwanga (11279; 16 August 1994); Singh, Devinder (12668; 13 November 1995). It is preferable that the standard of proof, which represents the appropriate framework for the assessment of whether the claim is made out, is set out before any embarking on the assessment: Hussain (10836; 13 April 1994).

[17] The judgment of the Full Court of the Federal Court of Australia in Puerta v Minister for Immigration and Multicultural Affairs [2001] FCA 309 (29 March 2001): 'Any analysis or discussion of whether a person has a well-founded fear is likely to involve the use of words other than the words of the Convention. Plainly enough, the use of other words should have the effect of not erecting a principle or test that does not conform with the requirements of the Convention. Nevertheless, words or expressions such as remote", "insubstantial" or "far fetched possibility" are not uncommonly used in the discourse about the proper approach to be taken in determining whether a fear is well founded.'

[18] See the comments of Stuart-Smith LJ in Demirakaya v Secretary of State for the Home Department 1999] Imm AR 498 (23 June 1999), regarding the use of language by the Tribunal with respect to the future prospects of a detained claimant. The statement 'it is reasonably likely that he will be released after one or two days' represented an incorrect statement of the burden of proof, reversing the proper question as to whether 'there is a real risk that he will not be released'. See also Elias LJ in the Court of Appeal in MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289 (2 April 2009), at [32], [42]. Valente (13014; 20 February 1996); a conclusion that it was 'reasonably unlikely' that the appellant would suffer persecution has similarly been the subject of disapproval: Bajwa (13442; 7 June 1996). 'Absent all other factors, if the only expression that is used in the course of a judgment is, "I am deciding what is likely and what is not", it may well be that it would be appropriate to say that he was using the balance of probabilities and that "likely", in the particular facts of the case, meant more than 50 per cent and "not likely" meant less than 50 per cent. But the word "likely" does not carry that automatic definition, and certainly not in the confines of a decision in which it has been said by the adjudicator that he is operating a different standard and the correct one': see Burton J in R v Immigration Appeal Tribunal, ex p Kamau (CO/234/00; 20 July 2000). Wilson J in the Administrative Court in R (Mbanjabahazi) v Secretary of State for the Home Department [2004] EWHC 1574 (Admin) (10 June 2004): 'The double use of the phrase "more likely" was, in my view, unfortunate.'

[19] Banica (10770; 28 March 1994); Tiako (12206; 6 June 1996); Patel (15931; 19 December 1997); Malakar (16540; 23 September 1998). The Tribunal in Elidemir [2002] UKIAT 00300 (8 February 2002) stated that: 'reference to the evidence regarding the appellant's brother being "inconclusive" suggested that he was not at this point applying the lower standard of proof'.

[20] Gibbs J in R v Special Adjudicator, ex p Chohan (CO/2042/1999; 10 October 2000).

[21] As to the determination of asylum claims generally, see the Preamble of Council Directive 2005/85/EC of 1 December 2005: '(10) It is essential that decisions on all applications for asylum be taken on the basis of the facts and, in the first instance, by authorities whose personnel has the appropriate knowledge or receives the necessary training in the field of asylum and refugee matters.' However, it is readily apparent from the addresses of the letter writers in fresh claim cases that they do not emanate from the New Asylum Model, the part of the Home Office which is known to have received specialist training.

[22] In Kaja [1995] Imm AR 1. The Tribunal in Asuming (11530; 11 November 1994) explained this aspect of Kaja: 'Asylum cases differ from most other cases in the seriousness of the consequences of an erroneous decision in the focus of the decision on the future and the inherent difficulties of obtaining objective evidence. Given that in the light of these factors a well founded fear is shown by establishing a serious possibility that persecution may occur, it seems contrary to that focus and impractical to apply a different standard of proof to the establishment of facts on which the assessment is based. It makes little sense to base the establishment of the future risk on the existence of a serious possibility that an event may occur but exclude from consideration of that issue all events save those more likely than not to have occurred, and, that, it seems to the Tribunal, artificially narrows the concept of risk lying at the heart of an asylum claim (see Kaja).'

[23] Kaja [1995] Imm AR 1.

[24] [1991] Imm AR 80.

[25] By early 2000, the Tribunal was suggesting that it was absurd to suggest that any special adjudicator could be unaware of Kaja [1995] Imm AR 1 and the test that it indicates should be applied: Rai (00/TH/00048; 17 February 2000). Nevertheless, it is clearly desirable that adjudicators confirm their understanding of the correct approach and avoid the use of potentially ambiguous expressions such as 'the appropriate standard of proof': Cardona (HX-53346-00; 26 October 2000), in which the Tribunal went on to warn that where there was a failure to do so, it should remain astute not to set aside determinations on a technicality or for reasons of style as opposed to substance. Thus it might be satisfied that the adjudicator had indeed applied the proper standard of proof by reading the whole determination, particularly where there was reference to counsel's submissions which themselves contained express reference to the proper standard. In fact, as early as 1 February 1996, the Tribunal in Kamani (12980) recognised that the substance of the determination rather than any formality of citation was the yardstick.

[26] Kaja [1995] Imm AR 1. Hitherto, there had been some suggestion, albeit without the benefit of a great deal of argument, that the appropriate standard of proof for questions related to the possession of 'actual fear' was the civil one: see Popplewell J in R v Immigration Appeal Tribunal, ex p Babiha [1995] Imm AR 173 at 174. Ironically, Brooke LJ, in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271, thought the matter had been settled at High Court level prior to Kaja, in favour of the balance of probabilities, by Nolan J in R v Secretary of State for the Home Department, ex p Jonah [1985] Imm AR 7. Only one division of the Tribunal expressed dissatisfaction with the Kaja approach (save for the lone minority voice in Kaja itself), considering that the test for the ascertainment of historical facts should be the civil standard: Bhajan Singh (12413; 9 August 1995).

[27] Horvath (IAT; 17338; 4 December 1998); [1999] INLR 7. Wilson J in the Administrative Court in R (Mbanjabahazi) v Secretary of State for the Home Department [2004] EWHC 1574 (Admin) (10 June 2004): '8 … the judgment of Brooke LJ in Karanakaran v SSHD [2000] 3 All ER 449 at 469 H to J, which I personally find particularly helpful in this context, and which, if I may attempt my own slightly fuller précis, requires the decision-maker to afford to all assertions, even if not proved on the balance of probabilities, an appropriate measure of weight, save only in the event that there is no real doubt that they are untrue.'

[28] Asylum and Immigration Appeals Act 1993, Sch 2, para 5(5), as amended by the Immigration and Asylum Act 1996, s 1; see now the Immigration and Asylum Act 1999, Sch 4, para 9(7).

[29] Stuart-Smith and Ward LJJ, in Horvath v Secretary of State for the Home Department [2000] INLR 15 (CA).

[30] Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271.

[31] The headnote of the Immigration Appeal Reports may have been the progenitor of this misapprehension, one which later infected decisions such as Secretary of State for the Home Department v Salah Ziar [1997] Imm AR 456.

[32] The joint judgment of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (one of a series of Australian authorities cited in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271): 'Where facts are in dispute in civil litigation conducted under common law procedures, the court has to decide where, on the balance of probabilities, the truth lies as between the evidence the parties to the litigation have thought it in their respective interests to adduce at the trial. Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law. The term 'balance of probabilities' played a major part in those submissions, presumably as a result of the Full Court's decision. As with the term 'evidence' as used to describe the material before the delegates, it seems to be borrowed from the universe of discourse which has civil litigation as its subject. The present context of administrative decision-making is very different and the use of such terms provides little assistance.'

[33] See further Sedley LJ citing with approval the summary by the Australian Federal Court in Rajalingam [1999] FCA 719 of the assenting views in Wu Shan Liang of Kirby J (in the High Court of Australia): 'Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation on the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: "What if I am wrong?" [Guo v Minister for Immigration (1996) 135 ALR 421 at 441]. Otherwise, by eliminating facts on the way to the final conclusion, based on what seems "likely" or "entitled to greater weight", the decision-maker may be left with nothing on which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a "real chance" of persecution.' For the limitations on 'What if am I wrong?' as a form of guidance to decision-makers, see the Full Court of the Federal Court of Australia in Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594: 'an invocation thus to speculate is apt to be perceived as an invitation to a mere guessing game, at which a conscientious decision-maker is, by temperament and training, unconsciously likely to bridle: in the introductory "boilerplate" self-direction commonly employed by Tribunal Members and employed by the Member in the present case, "mere speculation" is, on the authority of Guo, rightly disparaged.' See further Case Summary IJRL/0108, BverwG 9 C 91/89 IJRL (1992) 4 No 2 at 258 Federal Administrative Court 1990: 'There are no special rules of evidence in asylum law which limit courts in their fact-finding. Given the difficulties of making a prognosis of the risks of persecution in a country of origin, courts should use and evaluate all documentary evidence available to them, and indicate how they evaluate such evidence.' The President in Yildirim [2002] UKIAT 02813 (18 July 2002): 'We are bound to say that we are exceedingly sceptical about the suggestion made in the Appellant's account that he was asked to become an informer and that he was released on the basis of being given time to consider. We regard that as decidedly implausible. However, having regard to the approach that we are enjoined to apply by the Court of Appeal in Karanakaran, we regard it as evidence which we cannot positively reject and so we do take it into account.' The European Court of Human Rights in RC v Sweden (41827/07; 9 March 2010) [2010] ECHR 307: '50. The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker's submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v Sweden (dec), no. 23944/05, 8 March 2007, and Matsiukhina and Matsiukhin v Sweden (dec), no. 31260/04, 21 June 2005).'

[34] Kacaj (01/TH/0634; 19 July 2001; starred): 'In our view, now that the European Court has fixed on a particular expression and it is one which is entirely appropriate for both asylum and human rights claims, it should be adopted in preference to any other, albeit others may be intended to convey the same meaning … The use of the words "real risk" has the advantage of making clear that there must be more than a mere possibility.' See, however, Abdullah Ahmed [2002] UKIAT 00841 (25 March 2002): 'If the phrase which attracted the Kacaj Tribunal is to be the common standard applicable to asylum and like human rights issues it clearly must be applied consistently with Sivakumaran. It would seem to follow that however, although one phrase is to be preferred over another, any of the Sivakumaran phrases if properly applied will accurately express the standard common to asylum and like human rights claims. 35. Further, with respect, the focus of the Tribunal in Kacaj on the "real risk" may create a thought that the Sivakumaran principle itself is to be qualified. While that is not open to any court below the House of Lords it may be desirable that that be made clear, particularly in the light of the lack of comment by the Kacaj Tribunal on the adjudicator's use of Sivakumaran phrases.' Blake J in the Administrative Court in Veerasingam v Secretary of State for the Home Department [2008] EWHC 3044 (Admin) (11 December 2008): "24 … the real risk standard that is at the heart of both refugee and ECHR case law, although the requirement of substantial grounds for a real risk might if anything be a somewhat more demanding test than that required to make out a well-founded fear of persecution."

[35] Kaja [1995] Imm AR 1; see further Brooke J in R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176 (see below at 2.14, n 2 and 2.15 generally). For an account of the sense of dislocation inherent in the refugee condition, see D Warner 'The refugee state and state protection' in F Nicholson and P Twomey (eds) Refugee Rights and Realities (1999) pp 253, 254–255.

[36] Kasolo (13190; 1 April 1996); see further 2.13, n 2.

[37] Suleyman (16242; 11 February 1998).

[38] See Sackville J (with whom North J expressly agreed) in the Full Court of the Federal Court of Australia, in Rajalingam [1999] FCA 719, summarised with approval by Brooke LJ in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271.

[39] The President in the Tribunal in SW (Adjudicator's Questions) Somalia [2005] UKIAT 00037: 'Findings of credibility are one of the primary functions of the Adjudicator, since they lead to the establishment of much of the factual matrix for the determination of the Appellant's case. In some cases, but by no means all, the issue of credibility may be the fulcrum of the decision as to whether the Appellant's claim succeeds or fails.'

[40] NA (Palestinians, Risk) Iraq CG [2008] UKAIT 00046 (14 May 2008): '39 … great care must be taken before making adverse findings of credibility in asylum cases'

[41] Guine (13868; 9 September 1996). One Tribunal commented that there is more likely to be a truly independent assessment of the claim if the decision-maker first considers whether the claim could succeed on the basis that the facts are accepted. If the claim could succeed on that footing, the next step would be to assess whether the story is a plausible one in the light of all the circumstances, particularly on the basis of the background country evidence and applying the Kaja approach (Kaja [1995] Imm AR 1): Javaid (17159; 20 May 1998).

[42] Escobar (20553; 26 March 1999).

[43] Harjinder Singh Gjoni (00/GL/027; 2 November 2000).

[44] For re-characterisation of risk, see para 2.48.

[45] Butt (17559; 8 September 1998).

[46] J C Hathaway The Law of Refugee Status (1991).

[47] Horvath [1999] INLR 7.

[48] Govindasamy (16668; 29 April 1998).

[49] Mohammed Hussain (QBD CO 1990–95, 25 April 1996). Turner J also noted 'Credibility depends on a number of factors: honesty, accuracy, and the ability fully to recollect'.

[50] Lord Steyn in the House of Lords in R (Sivakumar) v Secretary of State for the Home Department 2003 UKHL 14; [2003] 1 WLR 840: '8. Moreover, if the case is considered globally, the conclusion is justified that there was a strong claim to refugee status. The evaluation of the material facts must not be compartmentalised'; interpreted by Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (2 July 2008) at [19] thus: 'A global assessment of credibility is required' without 'an undue concentration on minutiae'.

[51] Kaja [1995] Imm AR 1.

[52] Sedley J (as he then was) in Sasitharan [1998] Imm AR 487, though he felt that such cases were exceptional by the time of R v Immigration Appeal Tribunal, ex p Koc [2003] EWCA Civ 260; but the problem reared its head again in JK (Syria) v Secretary of State for the Home Department [2007] EWCA Civ 1435 (27 November 2005) and NT (Togo) v Secretary of State for the Home Department [2007] EWCA Civ 1431. The same concern has arisen elsewhere: see Merkel J in the Full Court of the Federal Court of Australia in Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 (21 December 2000): 'I also have concerns at the confidence with which some members of the Refugee Review Tribunal find themselves able to make adverse findings on credibility on the basis that the evidence given by claimants is "implausible", "incredible" or "concocted". Anyone experienced in fact finding would be well aware that in the usual course clear and cogent evidence is necessary before such strong findings are made against a witness.' Appellate authorities abroad demonstrate the proper approach to be taken in order for fairness to prevail: 'Clearly there must be valid reasons to doubt the credibility of an applicant.' New Zealand Refugee Status Appeals Authority in Refugee Appeal No 1/92 Re SA; some authorities put things even higher. For example one judgment from the Board of Immigration Appeals in the USA, in which it was said that when an asylum applicant 'has provided straightforward and uncontradicted testimony which establishes a prima facie claim of persecution warranting a grant of asylum, as well as a reasonable contention that she cannot provide corroborating documentation, the burden should shift … if the Service does not refute the claim made by the applicant, then it would appear that, even in the absence of specific documentation corroborating claims… the applicant has satisfied his or her burden of proof': concurring judgment in Matter of SMJ, Interim Decision 3303 (BIA 1997). Speech by The Hon Mr Justice Blake, President of UTIAC to the Upper Tribunal Immigration Judiciary The Arrival of the Upper Tribunal Immigration and Asylum Chamber (11 February 2010): 'One task of the UT is to ensure that we contribute to the development and application of the best practice even whilst we recognise that we are faced with great numbers of unsubstantiated claims based on fabricated or contrived evidence. We must be on our guard against credibility fatigue, as much as against being deceived by false claims.'  3 Jode (15233; 7 July 1997). The US Court of Appeals in Osorio v Immigration and Naturalization Service, 99 F 3d 928, 931 (9th Cir, 1996) made it clear that the Board of Immigration Appeals must have '[A] legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief'. Though a decision-maker may find even generally credible and plausible evidence to lack credibility, see Lightman J in the Administrative Court in R v Secretary of State for the Home Department, ex p Erdogan [2003] EWHC 672 Admin: 'It is a matter of common experience in many cases that witnesses, particularly where their evidence is fabricated, as the Adjudicator found it was fabricated in this case, give consistent and plausible evidence, but their evidence is rejected as a lie. In my view, the invocation of principle by the claimant in this case is misconceived.' International Association of Refugee Law Judges (IARLJ) World Conference (Stockholm; Rodger Haines QC; 21 April 2005) Judicial or Administrative Protection of Asylum-Seekers – Content or Form?: '[23] At the 5th IARLJ Conference held at Wellington, New Zealand in October 2002 Sir Stephen Sedley memorably articulated the overt and covert pressures on asylum judges which are capable of affecting the impartiality of their decision-making and which render their independence fragile. As he rightly points out, the critical function of first-instance asylum judges in the majority of the world's developed jurisdictions is the function of fact-finding. Many, perhaps most, decisions have to be arrived at only after determining whether the refugee claimant is telling the truth and, if not, what the truth is … [24] Addressing the difficulties of credibility evaluation he referred in his paper to what he calls the "darker hinterland in which judges … have to do their unaided best to decide whether an account is credible or not …It is in such a situation, where there is frequently so little firm or objective help to be gained from materials before the judge and where so much depends on personal impression and visceral reaction, that the demands of independence and impartiality become acute. I suspect that a truly impartial outcome in a high proportion of asylum cases would be a draw. But that is the one luxury denied to judges. Setting the standard for a successful claim well below truth beyond reasonable doubt and even below a preponderance of probability, and limiting it to the establishment of a real risk, may help the asylum-seeker but does not ultimately help the asylum judge. A possible life-and-death decision extracted from shreds of evidence and subjective impressions still has to be made. Not only for these substantive reasons but for procedural reasons too, asylum adjudication calls up a very particular version of impartiality. In ordinary civil and criminal contests, impartiality implies no more than not taking sides, at least until one has heard the evidence and the argument. In asylum law, except to the extent that the state takes on itself the role of the asylum-seeker's adversary, there are no such sides. In an exercise which is typically one of testing assertions, not of choosing between two stories, the form which impartiality most typically takes for the judge is abstention from pre-ordained or conditioned reactions to what one is being told. It means not so much knowing others as knowing oneself – perhaps the hardest form of knowledge for anyone to acquire."'

[53] Suleyman (16242; 11 February 1998).

[54] Sukhdeep Singh (G0081; 21 April 1999).

[55] Concurring judgment in Matter of SMJ, Interim Decision 3303 (BIA 1997), deriving support from Bolanos-Hernandez v INS, 767 F 2d 1277 at 1285 (US Court of Appeals, 9th Cir, 1984).

[56] Mbuinga (00/TH/0063; 1 March 2000).

[57] Neill LJ in Birungi v Secretary of State for the Home Department [1995] Imm AR 331, at 335.

[58] Navaratnam (14803; 3 April 1997); see below generally at para 2.15, particularly Brooke J in R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176 at 181; as to the relevance of the UNHCR generally, see para 1.7.

[59] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status para 196; see further the section on corroboration (below at para 2.39).

[60] UNHCR Handbook paras 196, 204; see Samhat (17760; 8 February 1999).

[61] UNHCR Handbook para 196. See the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 72668/01 (5 April 2002) for a substantial discussion on burden of proof in the refugee context. The duty is enlivened in European and domestic law by the provisions set out below at para 2.29 n 3.

[62] UNHCR Handbook para 200.

[63] UNHCR Handbook para 200; see further para 2.10 below.

[64] UNHCR Handbook para 200.

[65] See generally Chapter 12 for the various kinds of accelerated or truncated asylum process such as 'clearly unfounded' and 'third country' cases.

[66] Brooke J in R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176 at 180-182: see para 2.5 n 1 above.

[67] 'The NAM introduced a single Case Owner model. The Case Owner is a Home Office official responsible for an asylum seeker's case throughout the process – from application to the granting of status or removal.' Refugee Council Briefing on the New Asylum Model (August 2007).

[68] R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176. Sedley LJ in RM (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 751 (3 July 2007): 23. it is unjust to treat "interpreter blaming" as an implicit admission of fault or inconsistency. Interpreters can and do get things wrong, not only where the questioner or the witness is expressing himself or herself poorly, but, as may well have been the case here, where no more than a nuance separates one possible meaning of a question from another. A sustainable suggestion of erroneous interpreting has to be taken seriously.'

[69] R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176.

[70] R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176.

[71] R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176.

[72] May and Glidewell LJJ in Gaima v Secretary of State for the Home Department [1989] Imm AR 205 at 209.

[73] Bingham LJ in R v Secretary of State for the Home Department, ex p Thirukumar [1989] Imm AR 402 at 414.

[74] Akinwale (17646; 19 June 1998). In that case, the Tribunal observed that it does not carry great weight in seeking to brand an applicant untruthful regarding his chronology of travel to rely only on an airline schedule without making an effort to check whether on the day in question the schedule was maintained.

[75] Ex-Comm Resolution No 91 (LII) – 2001 '(b) Recommends that the registration of refugees and asylum-seekers should be guided by the following basic considerations: (ii) The registration process should abide by the fundamental principles of confidentiality;' International human rights law guarantees everyone the right to privacy and protects individuals from arbitrary or unlawful interference. See these declarations and human rights treaties of relevance: Article 12 of the Universal Declaration of Human Rights of 10 December 1948, Article 17 of the International Covenant on Civil and Political Rights, Article 16 of the Convention on the Rights of the Child.

[76] UN High Commissioner for Refugees, Advisory Opinion on the Rules of Confidentiality Regarding Asylum Information, 31 March 2005.

[77] Potter LJ in the Court of Appeal in R v Secretary of State for the Home Department, ex p Rostami (FC/1999/5835/4; 6 October 1999) states: 'Information you give us will be treated in confidence, but may be disclosed to other government departments and agencies, local authorities and international organisations to enable them to carry out their functions. Information may also be disclosed in confidence to asylum authorities of other countries which may have responsibility for considering your claim.' The Secretary of State's policy on confidentiality towards applicants for asylum, as set out in the Asylum support 'Statement of confidentiality': 'We will treat information you give us in confidence. However, we may give it to other government departments, agencies and local authorities. We will give information to our accommodation providers, cash support providers, the voluntary sector reception assistants and the post office. This is so they can give you the support we ask them to provide. We will give the police information, if necessary, so they can prevent, detect, investigate or prosecute criminal offences.' At the time of writing (August 2009), the policy for asylum claims themselves is under review. See further Scott Baker LJ in Al Shamri v Secretary of State for the Home Department [2003] EWCA Civ 912.

[78] The Tribunal in Tabores and Munoz (17819; 24 July 1998) citing the Asylum Appeals (Procedure) Rules 1996, particularly rr 5, 32; rules reflected in the Immigration and Asylum Appeals (Procedure) Rules, rr 13–54(1).

[79] Tabores and Munoz (17819; 24 July 1998); although any breach of confidentiality may have implications for the reliability of the fact-finding process in the light of the failure to adhere to the proper approach laid down in the UNHCR Handbook, see para 2.14 n 7. For a discussion in the Australian context, see Abbasi v Minister for Immigration and Multicultural Affairs [2001] FCA 1274 (21 September 2001).

[80] El-Mahdi and Others (11591; 25 November 1994); Immigration and Asylum Appeals (Procedure) Rules 2000, r 40(2).

[81] HC 395 r 339IA, transposing Art 22 of Council Directive 2005/85/EC of 1 December 2005. See further below, para 2.70.

[82] Certainly discrepancies require some kind of explanation before being considered inoperative, and there will be cases where even minor unexplained discrepancies may have a bearing on credibility: Ozkara (18770; 10 August 1999). Dyson LJ in the Court of Appeal in Malaba v Secretary of State for the Home Department [2006] EWCA Civ 820 (21 June 2006): '19 … As we have seen, the Secretary of State had said that the discrepancies were so serious that they completely undermined the credibility of her claim. A number of possible conclusions were available to the adjudicator. First, she could have said that, accepting the discrepancies at face value (without taking account of the response statement), they did not undermine the core of her claim. Secondly, she could have said that, if taken at face value, the discrepancies completely undermined the core of her claim; but she accepted the explanations given in the response statement and for that reason concluded that the discrepancies were more apparent than real and did not undermine the core of her account. Thirdly, she could have said that she accepted that some of the alleged discrepancies had not been adequately explained by the appellant in the response statement, but that these did not undermine the core of the account. Fourthly, she could have accepted that some of the alleged discrepancies had not been adequately explained in the response statement, and that these did undermine the appellant's account.' They must have a significance, however, to be worthy of bearing weight, see for example Moses LJ in the Court of Appeal in Detamu v Secretary of State for the Home Department [2006] EWCA Civ 604 (24 February 2006): 'It is difficult, I accept, but necessary for an immigration judge to give reasons for disbelieving one who seeks refugee status, but the reasons are important not only for the discipline which it imposes upon the fact finder, but also so as to distinguish those reasons which go to the core of the claim and those which are only peripheral. Only by a clear statement of reasons is it possible to distinguish between lies told by an applicant to bolster a genuine claim, and lies which are fatal in undermining his or her case.' Ferguson CJ in the US Court of Appeals in Shah v Immigration and Naturalization Service (No 98-70845) (9th Cir, 2000): 'In addition, we will not uphold an adverse credibility finding unless the IJ or BIA specifically explains the significance of the discrepancy or points to the petitioner's obvious evasiveness when asked about it. If discrepancies "cannot be viewed as attempts by the applicant to enhance his claims of persecution, [they] have no bearing on credibility." See also Vilorio-Lopez v INS 852 F 2d 1137 at 1142 (9th Cir, 1988) ("Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding.") (citation omitted).' Martineau J in the Federal Court of Canada in Lubana v Canada (Minister for Citizenship and Immigration) 2003 FCT 116 (3 February 2003): 'Furthermore, in its zealous pursuit of inconsistencies, the Board placed too much importance on peripheral elements and failed to focus on the real issues that were before it: the applicant's subjective fear of persecution and the objective basis for such fear.'

[83] Moses LJ granting permission to appeal in Ilkhani v Secretary of State for the Home Department [2005] EWCA Civ 1674 (5 December 2005): '2. The decision of the immigration judge is not assisted by the inaccurate mantra he recites … that "a truthful witness will be a consistent witness." That is not always the case. It depends upon the detail; there is a real danger that a mere trivial inconsistency will form the basis of a finding as to incredibility. Most immigration judges are well aware that that is not a sufficient basis for finding that an appellant is not telling the truth.' Kirby J in the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 (17 June 2004): 'As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 at 248, "[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility". There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue[76]. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear.'

[84] Rodger Haines delivering the opinion of the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 1/92 Re SA. Those principles have an international resonance: 'The point of an inquiry or review is never to isolate or seize on inconsistencies between the written application and oral testimony in order to justify a denial of asylum. In keeping with our recognition that our government has a duty to uphold international law … it is rather to seek to elicit detail that establishes a reasonable likelihood of persecution and satisfies the applicant's burden': concurring judgment in Matter of SMJ, Interim Decision 3303 (US BIA 1997); 'it is critical that a reasonable margin of appreciation be applied to any perceived flaws in the claimant's testimony. A claimant's credibility should not be impugned simply because of vagueness or inconsistencies in recounting peripheral details, since memory failures are experienced by many persons who have been the objects of persecution': Professor C J Hathaway Law of Refugee Status (1991) pp 84–86, approved as 'sound and sensible advice' by Merkel J in the Federal Court of Australia in Sutharsan Kopalapillai v Minister for Immigration and Multicultural Affairs [1997] 1510 FCA (24 December 1997); adopted and applied in New Zealand Refugee Status Appeals Authority in Appeal No 265/92, Re SA, 29 June 1994. 'Allowances for nervousness, unfamiliarity with procedures and the experience of interrogation, genuine upset and fear, and other matters, must always be made': Einfeld J in the Full Court of the Federal Court of Australia in John Meadows and Anor v Minister for Immigration and Multicultural Affairs [1998] 1706 FCA (23 December 1998). Burchett J in the Federal Court of Australia in Sundaraj v Minister for Immigration and Multicultural Affairs [1999] FCA 692 (14 May 1999) (wholeheartedly endorsed by Spender J on appeal to the Full Court): 'The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognized, and recognized by much more than lip service'; 'the Tribunal not reject an applicant's credibility, and find an intention to practice deliberate deception and fraud, on personal whims or a pedantic or over-harsh view of inconsistency when the discrepancies are slight, understandable and readily explained on some innocent ground': Einfeld J in the Federal Court of Australia in Rajamanikkam v Minister for Immigration and Multicultural Affairs [1999] FCA 1411 (19 November 1999). Judgment of the Full Court of the Federal Court of Australia in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 (3 April 2002): '15 As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.' Circuit Judge Paez in Marcos v Gonzales (US 9th Circuit Court of Appeals; 9 June 2005; Case Number: 029–73968): "We have held … that inconsistencies in the petitioner's statements must go to the heart of his asylum claim to justify an adverse credibility finding." Guo v Ashcroft, 361 F.3d 1194, 1201 (9th Cir, 2004) (quotation marks omitted).' See France Houle 'Pitfalls in Relying on Common Law Rules of Evidence for Administrative Tribunals' in Tribunals in the Common Law World, Robin Creyke (ed) Alumni Chair, Administrative Law, Australian National University, Canberra; Federation Press, distributed by Willan Publishing.

[85] 'Discrepancies are of course inevitable where, often long after events, and often in a language that is foreign to the applicant, an explanation comes to be given. But those discrepancies may often be irrelevant or capable of easy explanation. Why discrepancies can be important is that they go or can go centrally to the consistency of the main account that is given, and can be a pointer to its untruth in a circumstance in which someone sitting, as an adjudicator does, in the cold light of day having to make a decision, on the lower standard of proof, as to the honesty and integrity of an applicant may be driven to conclusions which depend on inconsistency where there is otherwise only a gut feeling that the evidence is not right but no other way of verifying such a conclusion': Burton J in R v Immigration Appeal Tribunal, ex p Gba (CO/4185/1999; 6 July 2000). In an instructive immigration case, R v Secretary of State for the Home Department, ex p Dinesh [1987] Imm AR 131, the Secretary of State concluded that the applicant had failed to show that she was the wife of a British citizen. Besides having regard to details regarding the marriage ceremony, the Secretary of State made reference to inconsistencies in the immigrant's account regarding the disappearance of her passport, and regarding details of her relatives. Russell J found that conclusion untenable, for the respondent had failed to give sufficient weight to the fact that the applicant was illiterate and innumerate, and had given undue weight to discrepancies involving credibility which were wholly divorced from the question of whether there had been a valid marriage, the sole single fundamental question in issue. Applying this approach to asylum cases, it would be similarly dangerous to give undue weight to discrepancies regarding matters collateral to the core of the claim itself in determining whether the central pillar of facts is established. See further Circuit Judge Fletcher in Damaize-Job v INS, 787 F 2d 1332, 1336 (US Court of Appeals, 9th Cir): 'The [Immigration Judge] nowhere explained how these inaccuracies reflected on the credibility of his persecution claims or for what possible reason Damaize would intentionally have provided incorrect information on such trivial points. These trivial errors merely provided an excuse on which to predicate a finding of no credibility.'

[86] In R v Secretary of State for the Home Department, ex p Bazilepo [1993] Imm AR 53.

[87] Henry J in R v Secretary of State for the Home Department, ex p Bolat [1991] Imm AR 417, at 419. See also Martineau J in the Federal Court of Canada in Mohacsi v the Minister of Citizenship and Immigration 2003 FCT 429 (CanLII), 2003 FCT 429, at para 20: '…not every kind of inconsistency or implausibility in a claimant's evidence will reasonably support the Board's negative findings on overall credibility. It would not be proper for the Board to base its findings on an extensive "microscopic" examination of issues irrelevant or peripheral to the claim'.

[88] Potts J in R v Secretary of State for the Home Department, ex p Chahal [1993] Imm AR 362, at 370–371, accepting counsel's submission that the Secretary of State had misdirected himself on the weight to be afforded a statement whose author was not a first-hand witness.

[89] Kaithampillai (18178; 13 May 1999).

[90] The Canadian Federal Court of Appeal in Attakora v Minister of Employment and Immigration (1989) 99 NR 168: 'I have mentioned the Board's zeal to find instances of contradiction in the applicant's testimony. While the Board's task is a difficult one, it should not be over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant … tells tales of horror in whose objective reality there is reason to believe.' Latham J in the High Court in R v Immigration Appeal Tribunal, ex p Nichalapillai (CO/2436/96; 30 January 1998) sympathised with an appellant whose case seemed to have been subjected to examination via a microscope rather than a magnifying glass. Mandamin J in the Federal Court of Canada in Okoli v Canada (Citizenship and Immigration), 2009 FC 332 (CanLII): '[30] As an example of microscopic examination, the board member notes that the Applicant did not mention that he had been tied to a pole when being beaten with canes and electrical wires, as he did mention this to his doctor. The Applicant was consistent in saying that he'd been attacked throughout the proceedings and to conclude that the attacks did not happen because he did not mention being tied to a pole is unreasonable. Where the evidence supports the plausibility of the story, namely the medical report of numerous scars and the reliable documentary evidence of homophobic attitudes in Nigeria, relatively minor inconsistencies should not lead to a negative credibility finding (Mohacsi v Canada (MCI), 2003 FCT 429 (CanLII), 2003 FCT 429, para 20).'

[91] Mayisokele (13039; 23 February 1996). The same considerations apply when comparing initial applications with testimony given at a later stage in court. Before regarding the addition of a piece of evidence given at a hearing to have been so significant as to infect the appellant's entire credibility, an adjudicator should first of recall that the system in this country deals with asylum claims in stages, making it inevitable that the story will develop in some way as it goes along: Eleilmaran (00/TH/01369; 1 June 2000); see further Uhumwango-Asembu (00/TH/01406; 14 June 2000). 'Comparison of an application in English (from a non-English-speaking and often semi-literate applicant) with testimony presented in court with the assistance of an interpreter is, in my view, an ineffective and often unfair measure of credibility,' the concurring opinion in Matter of SMJ, Interim Decision 3303 (BIA 1997), citing as authority Osorio v INS, 99 F 3d 928 (US Court of Appeals, 9th Cir, 1996). Reversing an error by an Immigration Judge who had held it against an applicant that he had not mentioned certain collateral incidents involving relatives in his original application, Circuit Judge Reinhardt gave this guidance: 'Forms are frequently filled out by poor illiterate people who do not speak English and are unable to retain counsel. Under these circumstances, the [Immigration Judges] cannot expect the answers provided in the applications to be as comprehensive or as thorough as they would be if set forth in a legal brief' Aguilera-Cota v INS 914 F 2d 1375 at 1382 (US Court of Appeals, 9th Cir, 1990). Reinhardt CJ went on to cite cases where findings on credibility had been reversed for 'inconsistencies in the record such as the date the petitioner joined a paramilitary group and the fact that he had listed two children on his asylum application when in fact he had four children' Martinez-Sanchez v INS 794 F 2d 1396 at 1400 (US Court of Appeals, 9th Cir) and 'minor inconsistencies in the testimony of two individuals regarding the date of the incident, the length of time the men were sheltered from the death squad, and whether payment was made for their accommodation' Vilorio-Lopez v INS 852 F 2d 1137 at 1142 (9th Cir, 1988): his conclusion was that 'If minor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding, a fortiori minor omissions cannot': Vilorio-Lopez v INS 852 F 2d 1137 at 1382 (9th Cir, 1988). Inconsistencies need to be analysed in the context of all the statements made in a case, see Fessahaye [2002] UKIAT 03490 (6 August 2002): 'If the adjudicator was going to juxtapose the statement of evidence form account and the witness statement account and disbelieve them for inconsistency, then she needed, in fairness to the appellant, to include in her comparison the interview, very close in time to the statement of evidence form, but very similar in content to the witness statement.'

[92] Salim (13202; 17 April 1996).

[93] Akinwale (17646; 19 June 1998); see also Kasolo (13190; 1 April 1996).

[94] Jeevaponkalan (17742; 24 July 1998).

[95] The US Court of Appeals in Vilorio-Lopez v INS 852 F 2d 1137 (9th Cir, 1988).

[96] The US Court of Appeals in Vilorio-Lopez v INS 852 F 2d 1137 (9th Cir, 1988).

[97] Thirukamar (in the Divisional Court) [1989] Imm AR 270, at 283.

[98] Neill LJ in Birungi [1995] Imm AR 331, at 336.

[99] Ramkumar (21816; 5 August 1999).

[100] The Tribunal in YL (Rely on SEF) China [2004] UKIAT 00145 (08 June 2004):  '20. The Statement of Evidence Form –SEF Self Completion – (that is the "SEF" …) is an entirely different document. As has been explained above, it is the appellant's opportunity to set out his case. The asylum seeker has to return the form by a specified date, usually about a fortnight after the form is given to him. However 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. … 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. 22. We recognise, of course, that sometimes mistakes will be made and sometimes, for whatever reason, claimants will withhold information until a later stage or will answer questions inaccurately or downright untruthfully. However, the starting point must be that the form SEF is a complete and accurate statement of a case. If it is not, and the asylum seeker has been advised properly, he will say so at the first possible opportunity so that complaints can be investigated and put right. If an error has been made by solicitors then the Secretary of State, or the Adjudicator, can expect to see evidence from the solicitor concerned explaining how the mistake came to be made and exhibiting any notes or instructions in support. It is hard to see why a claimant who had been let down in this way would not waive any privilege that prevented proper instructions being disclosed. Solicitors who carelessly set out a claimant's case can be expected to be reported to their professional body. 23. If an application is refused and a person appeals to an Adjudicator, there will be a direction that the claimant prepares a full witness statement. The very least that this must do is confirm the contents of the form SEF or explain thoroughly its deficiencies. Of course, if this is not done and points have to be made an Adjudicator may permit them to be made in oral evidence or they may emerge in cross-examination but a competent representative will deal with them before that stage and, in the absence of a proper explanation, an Adjudicator should be very slow to believe evidence introduced at a late stage.'

[101] See The role of early legal advice in asylum applications (Immigration Research and Statistics Service, RDS, Home Office; 2005): 'The research suggests that good quality early legal representation can have a positive impact on the extent and quality of initial information gathering. However, legal representatives do not always meet this ideal and, in the extreme, may do nothing on behalf of the applicant or submit irrelevant and/or unverifiable information to the Home Office'. Select Committee on Home Affairs Fifth Report on Migration printed 13 July 2006: '376. Mr Justice Hodge told us that although the "utterly wicked, incompetent and useless" lay advisers who used to appear in immigration and asylum appeals have "pretty much gone", there is still a problem with the quality of advocacy in front of immigration judges which in his view is "not much better than it was two years ago".'

[102] Stadlen J in the Administrative Court in Jeyabalan (R on the application of) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) (2 April 2009): 'If the Claimant's second version of events was true and he was indeed an enthusiastic and senior member of the Tamil Tigers Intelligence Unit who had been involved in brutal interrogation of suspected informers and had access to secret files, it is not in my view inherently implausible that he might well have been genuinely frightened that to reveal those matters would place him in jeopardy and undermine his asylum claim in the eyes of the UK authorities.'

[103] Failing to offer a read-over of the interview in recent times, a practice foreshadowed in a letter from the Asylum Policy Unit of the Home Office to the Immigration Law Practitioners Association of 23 June 2000, diminishes due process, and has led many representatives to advise their clients not to sign the interview record. See Bilbil (01/TH/01603; 11 September 2001) describing the development as: 'an unwarranted change in practice which would work against the interests of this Appellant and generally opened the door to further complaint of misinterpretation, misunderstanding or misrecording of a claimant's case. The policy not to read-back also is against the general trend that has been maintained over many years particularly since the Police and Criminal Evidence Act 1984 with the Codes of Practice which sought to ensure that wherever practicable a person being interviewed should have an opportunity to read the record or alternatively have it read back to him and to sign it as correct or to indicate the respects in which it is considered to be inaccurate'. Pitchford J in the Administrative Court in Mapah v Secretary of State for the Home Department [2003] EHWC 306 (Admin): 'I record my concurrence with the views of the IAT in Gagda Bilbil … not because I consider the omission of read over to be fatal to the fairness of the procedure, but because it has, despite the time constraints, such obvious advantages both to the interviewer and to the applicant, particularly the unrepresented applicant. I respectfully agree that its restoration could only enhance confidence in the impartiality of the procedure as a whole.' Those thought especially vulnerable might enjoy a readover at the discretion of the interviewer (and no doubt a failure to do so will render the interview especially unsatisfactory if challenged on appeal), see the Home Office Immigration and Nationality Department Protocol governing the Conduct of Substantive Interviews and the Roles of Interviewing Officers, Representatives and their Interpreters: which can be seen online via the Home Office website at 'The interviewing officer has discretion to read back the interview record in exceptional cases, for example, where the applicant appears to be illiterate or traumatised.' DA (Unsigned interview notes) Turkey [2004] UKIAT 00104 (14th May 2004): '10. Adjudicators need to consider the circumstances in which the interviews are recorded, the commencement questions and the concluding questions deal with the interpreter, their ability to be interviewed and with whether they have anything further to add. It is also necessary for the Adjudicator when considering a claim that a passage in an interview is inaccurate, to consider what the questions were, what the answers were, how complex they seem, what the scope of the misunderstanding might be, and the extent to which the questioning, in the course of the interview, has provided and opportunity for the interviewee to correct what has been said, whether such an opportunity is given explicitly or whether such an opportunity arises in the course of confirmatory, or other questions which the interviewer may ask. 11. It is necessary then for an Adjudicator to consider what explanation may be offered by the Claimant for the discrepancy and to consider whether or not, in the light of that explanation, the credibility of the Claimant is reinforced or made more doubtful. What is entirely inappropriate is for an Adjudicator to say that because an interview record has not been signed, and the reason given is that it has not been read back, it is on that account to be disregarded.'

[104] Latham LJ in the Court of Appeal in R (Dirshe) v Secretary of State for the Home Department [2005] EWCA Civ 421 (20 April 2005):  '16. With the removal of any right to remuneration, no representative will be willing to accompany an applicant to an interview. It follows that the entitlement to have a representative or interpreter present is of no practical value in such cases. So long as the respondent continues with the practice of relying upon a written record of the interview in its present form, the applicant must have an adequate means of insuring that the record is, as we have said, both adequate and reliable. As Pitchford J pointed out in Mapah, there are two potential areas of dispute inherent in this procedure. First is the quality of the interpreter. And second is the quality of the transcription by the interviewing officer who, with the best will in the world, is unlikely to be able to achieve complete accuracy every time and will often or at least in some interviews produce what is, in effect, an edited version. 17. Whilst it is true that the applicant has the opportunity to comment on the record, that is only of limited value. If English is not his first language the applicant will not be in a position to make any comment on the record until he has taken it to the representative and had an opportunity of going through the record with the representative and his own interpreter. If the applicant then wishes to challenge the record, he has no one to corroborate what he says. This puts the applicant at a significant disadvantage in practical terms in seeking to persuade either the respondent or an appellate authority that the record is indeed inaccurate. 19 … There is, therefore, real procedural unfairness as a result if a tape recording is not permitted when no representative or interpreter is present on behalf of the applicant. A tape recording provides the only sensible method of redressing the imbalance which results from the respondent being able to rely on a document created for him without an adequate opportunity for the applicant to refute it. This is not to suggest in any way that the respondent himself, or appellate authorities, would not conscientiously seek to come to a fair conclusion in the event of any challenge being made on behalf of the applicant to the content of the record based upon the applicant's own account. But it would be unrealistic to expect the decision maker to be unaffected by the fact that the record has been made by someone with apparently no axe to grind, whereas the challenge to it has been made by someone who has a real interest in the decision, and therefore a clear motive for seeking to challenge any uncomfortable answers set out in the record. The only appropriate method of redressing that balancing is to permit a tape recording to be made, if the applicant so wishes, of the interview.'  3 Risan (12551; 26 September 1995) (see also R v Secretary of State for the Home Department, ex p Akdogan [1995] Imm AR 176, above para 2.15). An indication of this is demonstrated by the UNHCR Symposium Questionnaire responses (IJRL Special Issue, Autumn 1997, 185 at 190) which indicated that at that time the United Kingdom did not give specific training to officers at point-of-entry or to decision-makers regarding issues arising from the cases of female asylum seekers. Well-meaning help from the community to an asylum seeker may have the opposite effect, see the concurring opinion in Matter of SMJ, Interim Decision 3303 (BIA 1997): 'While prior statements typically are acceptable means for challenging present testimony, in the asylum claims these applications are often prepared by well-meaning friends, family, or religious or community advocates, who may fail to probe for details, misunderstand or even embellish information given, and never read the content of the application back verbatim to the applicant. Equally as common is the question and answer approach generally undertaken by notaries, unauthorized practitioners, and some attorneys who approach the asylum application process as a source of high-volume income.' The Home Office IND Protocol for interviews, this para n 1 actually requires that the interviewer: 'give the applicant a proper opportunity to explain and give details of his or her application and address any inconsistencies apparent in the account. The interview will be conducted in a manner that is conducive to this aim'.

[105] Samson (12349; 20 July 1995).

[106] Kasolo (13190; 1 April 1996).

[107] Those sentiments were echoed in Lukusa (14353; 23 December 1996), acknowledging the force of the submission that an adverse credibility finding might not be justified merely because of discrepancies in a chronology of events, given that dates were self-evidently something about which anyone might become confused. US authority conforms to this, see Matter of B, BIA Interim Decision 3251 (19 May 1995): '[W]e agree with the applicant's assertion on appeal that although his recollection of precise dates was faulty, he always provided at least an approximate date when a date was requested of him. It is not altogether surprising that the applicant would have been disoriented about precise dates when he had spent so much of the time in question in confinement and had left Afghanistan directly from the army without returning home to discuss events with his family.' Equally, apparent discrepancies in the evidence may be partly explained by a combination of lapse of time and the provision of a considerable volume of detail: Shahbazian (19435; 8 March 1999). Berzon J in the United States Court of Appeals for the Ninth Circuit in Singh v Gonzales 403 F.3d 1081 (9th Cir, 2005; 13 April 2005): 'We need not decide whether any date inconsistency between the asylum interview and the removal hearing is minor. Cf. Bandari, 227 F.3d at 1166 ("[W]e have frequently characterized discrepancies in dates which reveal nothing about an asylum applicant's fear of his safety to be minor inconsistencies that cannot form the basis of an adverse credibility finding.") (citation and internal quotation marks omitted)).' Berzon J continued: 'The ability to recall precise dates of events years after they happen is an extremely poor test of how truthful a witness's substantive account is. All of us have had the experience of having a lucid recollection of a particular event, yet being unable to date the event within months or even years. Scientific research supports this observation: "Among the most common failures of source memory is remembering when something happened. … Victims of repeated physical or sexual abuse, for example, remember the gist of their experiences. However, they often confuse the details of particular incidents, including the time or dates of particular assaults and which specific actions occurred on which specific occasion. As events recur, it can become difficult to remember exactly when specific actions occurred even though memory for what happened is clear. Notwithstanding our inability to accurately report times and dates, witnesses are commonly asked to do so'. Deborah Davis and William C. Follette 'Foibles of Witness Memory for Traumatic/High Profile Events', 66 J. Air L. & Com. 1421, 1514–15 (2001) (footnotes omitted).

[108] Gurpreet Singh (10866; 22 April 1994); see eg the detailed analysis of the basis for asserted discrepancies made by McCullough J in the High Court in Gnanakumaran (14294; 23 December 1996), as subsequently recorded by the Tribunal.

[109] Einfeld J in the Federal Court of Australia in Rajamanikkam v Minister for Immigration and Multicultural Affairs [1999] FCA 1411 (19 November 1999).

[110] Balakanthan (17699; 10 July 1998); see further the UNHCR guidance: 'A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-á-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case': UNHCR Handbook para 198. Mansfield J in the Federal Court of Australia in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1705 (27 November 2000) summarised some Australian decisions usefully: '[I]n Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 Lee J, in a passage cited with approval by the Full Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023, said at [40] that care should be taken in impugning the credibility of a visa applicant because of vagueness or inconsistencies in recounting peripheral details. Regard should be had to the circumstances in which a visa applicant may have left the country of origin or the experiences there suffered, and to cultural and personal reasons for responding to the delegate of the respondent or to the Tribunal in an overstated way, or sometimes in a cautious way.' Mansfield J continued: '[34] There are doubtless many occasions when overstatement of detail may result from the genuine fear of persecution and the desire to persuade the decision-maker of the foundation of that fear. There are also doubtless many occasions when caution about disclosure of information may result in the initial claims being laconically rather than fully expressed. It may be unfair to attribute to a visa applicant the capacity to include in the initial claim, or indeed in subsequent documents, the capacity to disclose fully and frankly, but without any hyperbole, the reasons of the claim to refugee status.' Martineau J in the Federal Court of Canada in Lubana v Canada (Minister of Citizenship and Immigration) 2003 FCT 116 (CanLII), (2003), 228 FTR. 43 (FCTD): '[22] Fifth, the Board should not be quick to apply North American logic and reasoning to the claimant's behaviour: consideration should be given to the claimant's age, education, cultural background, previous social experiences and psychological condition. Therefore, in evaluating the claimant's first encounters with Canadian immigration authorities or referring to the claimant's POE, the Board should be mindful of the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority.'

[111] Nzamba-Liloneo v Secretary of State for the Home Department [1993] Imm AR 225, at 227.

[112] Subramaniam (16383; 16 November 1998).

[113] Wakene v Secretary of State for the Home Department (IATRF 98/0113 CMS4; 1 May 1998). The sophisticated appellant in that case, a businessman, could not complain of the adjudicator's rejection of his claimed confusion on arrival. The Full Court of the Federal Court of Australia has echoed Swinton-Thomas LJ's concerns: 'As commonsense, humanity and the Handbook of the United Nations High Commissioner for Refugees demonstrate, a person escaping persecution or worse, often not knowing if there will ever be an opportunity to see loved ones again, is likely to be quite distressed and nervous on arrival in a foreign country for the first time, obviously not knowing what might occur. In many cases, including this appellant's, they will be at best uncertain in English and will generally not be in a position to require an interpreter. They will normally not be accustomed to official interrogation in English. They will have been travelling for several hours. What they say at that time should not be treated as definitive of a set of facts as, or treated as more likely to be true than, matters stated to department officials or the Tribunal at a hearing some time later': Einfeld and North JJ in Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 (12 May 1999). The US Court of Appeals in Ramsameachire v Ashcroft, 357 F 3d 169, 180 (2nd Cir, 2004), wrote of considerations arising as to the reliability of an asylum applicant's preliminary interview: 'First, a record of the interview that merely summarizes or paraphrases the alien's statements is inherently less reliable than a verbatim account or transcript. Second, similarly less reliable are interviews in which the questions asked are not designed to elicit the details of an asylum claim, or the INS officer fails to ask follow-up questions that would aid the alien in developing his or her account. Third, an interview may be deemed less reliable if the alien appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country. Finally, if the alien's answers to the questions posed suggest that the alien did not understand English or the translations provided by the interpreter, the alien's statements should be considered less reliable. Id.' Berzon J in the United States Court of Appeals for the Ninth Circuit in Singh v Gonzales 403 F 3d 1081 (9th Cir, 2005; 13 April 2005) citing Li v Ashcroft, 378 F 3d 959, 962 (9th Cir, 2004): 'Our recent decision in Li illustrates the importance we have placed on ensuring that sufficient indicia of reliability exist before an asylum applicant's airport interview may properly be used as an impeachment source. Li stated: "We hesitate to view statements given during airport interviews as valuable impeachment sources because of the conditions under which they are taken and because a newly-arriving alien cannot be expected to divulge every detail of the persecution he or she sustained. But here, the IJ heard substantial evidence from Inspector Westlake [Li's INS interviewer] about the procedures used to ensure that interviews were accurately understood and recorded. Both the INS supervisor and the interpreter would carefully question and evaluate the alien before the interview; if any sign of a language barrier was detected, the interview would be halted until an interview, the interpreter would review questions and answers line-by-line with the alien to ensure there were no translation problems and to correct any misstatements that may have occurred. 378 F 3d at 962–63 (citations omitted)." In this case, by contrast, the asylum interviewer did not testify, and the reliability of Singh's Assessment to Refer is insufficiently supported by the record.'

[114] Ozkilinc (11948; 27 March 1995).

[115] Macpherson J in R v Secretary of State for the Home Department, ex p Sivakumaran [1991] Imm AR 80 at 83. See Chapter 14, para 14 n 1.

[116] Ziraret (12024; 19 April 1995). However, there is an interview protocol used by the Home Office IND, Conducting the asylum interview – interviewing protocol (a Related Document for the Asylum Process Guidance), see para 2.13 n 1; inter alia, the interviewer should 'confirm that the applicant is fit and well enough to be interviewed; If the applicant is unwell, the interviewing officer may postpone the interview, or should record full details of the client's concerns re: fitness for the interview on the interview record; confirm that, if an interpreter has been requested in advance of the interview, one is present in the language and dialect specified and that the applicant and interpreter understand one another … allow the applicant to show visible scars when applicants are claiming torture or maltreatment. The viewing of the scar and its position on the body should be noted; offer the applicant breaks as the interviewing officer considers necessary. The applicant may request breaks and these will be permitted at the discretion of the interviewing officer …'

[117] Taiwo (11953; 28 March 1995).

[118] Tikhonov (12347; 19 July 1995).

[119] Where the interviewee is clearly tired, less weight can be placed on an interview account than usual, and little reliance can be placed in such circumstances on the fact that the individual concerned signs the record as correct at its completion: Clavijo-Hoyos (00/TH/ 02131; 14 November 2000). Equally unsatisfactory would be a case where the applicant's interview was carried out in the presence of a legal representative who had no effective opportunity to obtain proper instructions from him beforehand, the applicant at the time being confused and frightened by their treatment by the authorities: New Zealand Refugee Status Appeals Authority in Refugee Appeal No 15/92 Re NMK, 2 December 1992.

[120] See para 2.14 above n 1.

[121] YL ( Rely on SEF ) China [2004] UKIAT 00145: '19. When a person seeks asylum in the United Kingdom he is usually made the subject of a 'screening interview' (called, perhaps rather confusingly a "Statement of Evidence Form – SEF Screening"). The purpose of that is to establish the general nature of the claimant's case so that the Home Office official can decide how best to process it. It is concerned with the country of origin, means of travel, circumstances of arrival in the United Kingdom, preferred language and other matters that might help the Secretary of State understand the case. Asylum seekers are still expected to tell the truth and answers given in screening interviews can be compared fairly with answers given later. However, it has to be remembered that a screening interview is not done to establish in detail the reasons a person gives to support her claim for asylum. It would not normally be appropriate for the Secretary of State to ask supplementary questions or to entertain elaborate answers and an inaccurate summary by an interviewing officer at that stage would be excusable. Further the screening interview may well be conducted when the asylum seeker is tired after a long journey. These things have to be considered when any inconsistencies between the screening interview and the later case are evaluated. Brooke LJ, dismissing the appeal, in Karimi v Secretary of State for the Home Department [2006] EWCA Civ 263 (30 January 2006): 'Nothing in this judgment should be taken to devalue in any way the central messages contained in the very important research conducted between November 1997 and June 1999 on behalf of the Immigration Law Practitioners' Association in their June 1999 report, entitled "Breaking down the barriers". This report revealed some serious deficiencies in the process of interviewing asylum seekers at the port of entry, including Heathrow. Judge David Pearl, who was at that time president of the Immigration Appeal Tribunal, not surprisingly commended the report as a blueprint for higher standards of decision-making. Reforms to the interview process followed its publication in due course, although they were not in place at the time this appellant was interviewed in March 2000.' See further Fear of the Authorities para 2.10 above.

[122] Mathanakumar (12817; 20 December 1995). Sexton JA in the Federal Court of Appeal of Canada in Ha v Canada (Minister of Citizenship and Immigration) (FCA.), 2004 FCA 49 (30 January 2004), finding that the duty of fairness in this particular case entitled appellants to have counsel attend and observe their interviews. The process overview on the Home Office website as at 20 August 2009 stated: 'If you or your family are paying for your legal representative, you may bring him or her to your asylum interview. However, a legal representative who is claiming legal aid on your behalf may not be able to attend the interview with you, and you should ask him or her whether it is possible. If no legal representative is attending you can request that the interview be tape-recorded. You must make this request at least one day in advance … Your case owner will not normally postpone your interview to give you more time to get legal advice or representation. If your legal representative does not attend your asylum interview, your case owner will proceed without him or her. www.bia.homeoffice.govuk/asylum/process/processoverview/asyluminterview/'.

[123] Ozkilinc (11948; 27 March 1995).

[124] The judgment of the Court of Appeal in R v Secretary of State for the Home Department, ex p Q [2003] EWCA Civ 364, in the context of interviews regarding NASS entitlement: 'Few, if any, asylum seekers have advice at the time of the interview, so that (at any rate without a much clearer explanation of the purpose of the interview) it is insufficient for the Secretary of State to contend that the burden of proof is on the applicant and that he has only himself to blame if he does not provide the interviewer with the whole picture.'

[125] Concurring judgment in Matter of SMJ, Interim Decision 3303 (BIA 1997). Several characteristics of the persecuted (of which post traumatic stress disorder is the best known) may well give rise to difficulties with recalling past events: 'Prolonged malnutrition and weight loss can affect memory function', as can minor traumatic brain injury, stress and arousal, sleep deprivation, major depression, and chronic pain: see generally Dr Juliet Cohen Errors of Recall and Credibility: Can Omissions and Discrepancies in Successive Statements Reasonably be said to Undermine Credibility of Testimony (Medical Foundation for the Care of Victims of Torture, London, 2001). She concludes 'Current research on memory shows that stories can change for many reasons and such changes do not necessarily indicate that the narrator is lying'. See also Koch and Winter 'The Psychological Sequelae of Torture – Use as Evidence in the Asylum Procedure', given at the ELENA International Course on Refugee Law as a Response to Failure of State Protection, December 2000. See also the report by Dr Stuart Turner, Discrepancies and Delays in Histories Presented by Asylum Seekers: Implications for Assessment (available from the Medical Foundation and elsewhere). 'Disturbances of memory and concentration have been found in studies on prisoners of war from World War Two and the Korean War. Torrie in 1944 found that immediately after a major campaign about 5% of soldiers had no memory at all of the events. Other studies have shown dissociative amnesia, which includes the inability to remember some aspects of the trauma, occurs in large numbers of disaster victims: 29% of earthquake survivors, 57% of ambush victims and 61% of tornado survivors': J Cohen 'Errors of Recall and Credibility: Can Omissions and Discrepancies in Successive Statements Reasonably be Said to Undermine Credibility of Testimony?' (2001) 69(1) Medico-Legal Journal 25–34.

[126] Jakitay (12658; 15 November 1995). See Chapter 16, para 16.37 n 12 onwards for the proper approach to vulnerable witnesses on appeal.

[127] Alan v Switzerland (UNCAT) [1997] INLR 29. Tremblay-Lamer J in the Federal Court of Canada in Vijayarajah v Canada (Minister for Citizenship and Immigration) (IMM–4538–98; 12 May 1999): '[19] Finally, the Board should have given appropriate weight to the documentary evidence. In particular, Dr Donald Payne, in a document entitled Psychological Problems of Torture Victims in Refugee Interviews and Hearings, published by the Canadian Centre for Victims of Torture states that torture victims will have considerable problems at refugee hearings. "It is my opinion that, because of psychological disturbances as a result of torture, it is unrealistic to expect that all refugee claimants will be able to make a full statement of their situation on arriving in Canada. Torture victims will tend to minimize their experiences due to the distress caused by recalling and talking about them, will have difficulty completely trusting the Canadian authorities and may say contradictory things as a result of their confusion or desire to say what they believe will lead to the security of them being allowed to remain in Canada." See DE Payne Psychological Problems of Torture Victims in Refugee Interviews and Hearings (27 March 1989) Toronto: CCVT.] In summary, the Board's conclusion is based on unsound reasoning. It found the Applicant not credible due to inconsistencies in his testimony, then relied on this negative credibility finding to dismiss medical and documentary evidence, which explains that torture victims may contradict themselves as a result of the confusion caused by their experiences. (Zapata v Canada (Solicitor General) (1994), 82 FTR 34 (FCTD)).'" 'Often, torture will have left them confused and forgetful, unable to present a coherent story of the oppression they suffered … Even as they present their case to the Australian government they hear its politicians and leaders discounting or excusing reports of abuse and torture. Kurdish asylum seekers from Turkey, for example, were horrified to see the Australian government confer an award on the visiting Turkish leader … This is a time of day-to-day survival, without secu re housing, income, food or health care, in which the survivor lives in constant fear of rejection and deportation, unable to establish secure roots in the new society. This is not a time in which the asylum seeker can risk emotional release or disclosure to strangers. Their experience of torture, flight and now exclusion and marginalization, teaches them to be wary and contained. Survival needs dictate vigilance, not trust … Survivors of torture may show intense psychological distress when recalling such terrible events, or they may be emotionally numbed or flat and detached in recounting their story … The applicant may appear in the interview as too calm or too emotional, too 'together' or to others unstable, unconvincing or overacting. A novice interviewer, or one who holds rigid stereotypes of cultures or coping styles, may become suspicious or confused when a refugee applicant is not suitably docile or distressed or angry … findings by law reform researchers … show witness behaviour (in court) to be quite unreliable in determining credibility': Counsellor Advocate Quentin Dignam of the Victorian Foundation for Survivors of Torture In Australia in Torture and Testimony [1992] 4(3) IJRL 345 at 347, 348, 349, 356, 358–359.

[128] See above para 2.13.

[129] Muldoon J in the Federal Court of Canada in Miral v Canada (Minister for Citizenship and Immigration) (IMM–3392–97; 12 February 1999): '[17] Regardless of how well-versed one is in the manner of interrogations conducted by police forces of various countries, it is intuitively obvious that both a purpose and a result of such interrogations is intimidation and the attendant confusion. Although it is the function of the CRDD to determine credibility, in this instance the panel appears to have imposed too high a standard regarding the amount of detail he required from her, forgetting, or perhaps overlooking, the fact that interrogations such as those experienced by the applicant are designed to blur and blend together in the minds of those interrogated.'

[130] Gummow and Hayne JJ in the High Court of Australia in Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510: '190. Inquiring whether a person has a well-founded fear of persecution is attended by very great difficulties. It is as well to begin such inquiries from two premises that, while obvious, may possibly be overlooked. First, the fact that a person in the applicant's position does not complain of rape to the first immigration officer who speaks to her on arrival in this country, a country in which she seeks asylum, is anything but compelling evidence that no such assault occurred.' Many women refugees are reluctant to speak openly about being sexually assaulted. It is very traumatic for women to relive these experiences, particularly in front of men, whether they be family members or strangers. In many societies, it is strictly taboo to speak about anything concerning sex. Also, due to cultural conditioning, many women are afraid that if the authorities in the country in which they seek asylum are informed that they have been sexually assaulted or have endured other sexual indignities, they will be regarded as 'dirty' and unfit … few refugee documentation centres have information on the position of women in a given country, on the incidence of sexual violence in that country, and on the consequences of returning to the country in question for a woman in the claimant's alleged position': JR Castel in 'Rape, Sexual Assault and the Meaning of Persecution' [1991] IJRL 39 at 55 citing N Kelley Working with Refugee Women: A Practical Guide (Geneva, 1989) and AB Johnsson 'The International Protection of Women Refugees' (1989) 1 IJRL 221 at 224. 'Rape sometimes appears to be used as a form of torture because those responsible realize that their victims may be constrained from revealing what has occurred after their release from custody': Amnesty International Women in the Front Line: Human Rights Violations Against Women (New York: John D Lucas Printing, 1990) p 8. See above para 2.13 n 4 and Chapter 7, para 7.15.

[131] Blake J in the Administrative Court in Ngirincuti (R on the application of) v Secretary of State for the Home Department [2008] EWHC 1952 (Admin) (15 July 2008): 'On the one hand, most people who have experience of obtaining a narrative from asylum seekers from a different language or different culture recognise that time, confidence in the interviewer and the interview process and some patience and some specific direction to pertinent questions is needed to adduce a comprehensive and adequate account. This is particularly the case where sexual assaults are alleged and all kind of cultural and gender sensitive issues may be in play as to why the full picture is not disclosed early on. Equally, the Secretary of State is entitled to make some broad assumptions as to the type of claim and the type of claimant that may well prove unfounded and to give expedited consideration to those cases that experience suggests may well be without merit.'

[132] De Montigny J in the Federal Court of Canada in Sukhu v Canada (Citizenship and Immigration), 2008 FC 427 (3 April 2008): '[20] The Board member drew negative inferences from the fact that the applicant did not have supporting documentation to prove "the two rapes because the female claimant was too ashamed to seek medical attention". It appears that in the Board member's mind, a female refugee claimant should not be too ashamed to obtain a medical report after a sexual assault. Such an inference does not sit well with the Gender Guidelines, which recognize that shame is a perfectly plausible explanation. One would have expected, at the very least, an explanation demonstrating that the Board member had considered the Gender Guidelines before coming to his conclusion.'

[133] See the criticisms of inexpert questioning in Risan (12551; 26 September 1995), n 1 at para 2.19 above.

[134] Menaa (15415; 14 August 1997), citing UNHCR Handbook, at para 196. See paras 2.8 n 5 above and 2.29 n 3 below.

[135] B (DR Congo) [2003] UKIAT 00012 (12 June 2003): 'The Adjudicator has given no indication about the areas in which he found the appellant to be vague. Given that the appellant appeared before him, if he had thought that the appellant needed to give more detail than he had, he should have sought such details and if the appellant had not provided the detail then the Adjudicator could properly have concluded that he had been evasive in his evidence. To describe a person's evidence as vague and use that as a ground for disbelief is, in our view, quite unsatisfactory unless of course the areas of lack of detail, which cause concern, are clearly spelt out.' See also MM (DRC – plausibility) Democratic Republic of Congo [2005] UKIAT 00019 (27 January 2005).

[136] Sikyurek (18778; 28 October 1998). O'Reilly J in Tafilica v Canada (Minister for Citizenship and Immigration) 2003 FCT 191 (18 February 2003): 'The Board had an elevated expectation of Mr Tafilica's knowledge of various political matters in Albania based on the understanding that he was a fairly high-level official in the Democratic Party. The Board stated: "The panel is of the opinion that it is reasonable for the adult male claimant to provide the aforementioned details and names and drew a negative inference from his inability to do so". However, the record shows that Mr Talifica appeared to be trying to make clear that his responsibilities were within a small geographical area and involved rather mundane activities. The Board thought it peculiar that the applicant had only a sparse and general knowledge of the Democratic Party's platform, did not know the exact street address of the main party headquarters and did not know the names of Chairmen of the Districts other than his own. Yet, this would not be so surprising if he were merely a party official in a small section of Tirana.'

[137] Graham J in the Federal Court of Australia in SZJOC v Minister for Immigration and Citizenship [2008] FCA 1342 (14 August 2008): '39 One wonders whether, if the Christians who gathered in the early centuries after Christ in Thessalonica, Colosse, Ephesus, Corinth, Philippi and Galatia were asked whether their religious activities were related to the Protestant or Catholic faiths, they would have been able to sensibly respond. I have some difficulty with the proposition that a person's religion, when claiming to be a Christian, should be evaluated by reference to a person's knowledge of whether the practices of the denomination in which they worshipped were different from the practices of other Christian denominations.' Mansfield, Jacobson and Siopis in the Federal Court of Australia in WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 (22 January 2007): '28 In Wang at 552, [16], Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are, or claim to be, adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.' Mckeown CJ in the United States Court of Appeals for the Ninth Circuit in Cosa v Mukasey (No 04–75643; 15 September 2008): 'Remarkably, the IJ set up a Bible quiz and an academic trivia contest as the foundation for the adverse credibility finding. Cosa claimed no expertise in Bible study or passages nor did she claim to have an intellectual's understanding of Millenism. See Rizal, 442 F 3d at 90 (explaining the distinction between an adherent and an expert, and that expecting academic knowledge of the religion from the former is unreasonable). Of course, it is not unfair to test the scope of a petitioner's understanding of her religion or even to challenge a preposterous claim, but to do so, as here, without a benchmark other than the IJ's views is unacceptable. See id. at 90–91.' Pill LJ, refusing permission to appeal, in SJ (Iran) & Ors v Secretary of State for the Home Department [2008] EWCA Civ 675 (4 June 2008): 'I do have reservations, and this point has properly been made by Mr Symes, about some of the detailed questions which the applicants were asked to test whether in fact they were Christians and I would accept that there will be many Christians who do not know the answers to some of the questions which were raised.' Zinn J in the Federal Court of Canada in Zhu v Canada (Citizenship and Immigration), 2008 FC 1066 (23 September 2008): '[16] …This approach to the notion of religious persecution is consistent with and complementary to the concept of religious freedom subsequently endorsed by the Supreme Court of Canada in Syndicat Northcrest v Amselem 2004 SCC 47 (CanLII), 2004 SCC 47, where the Court emphasises the subjectivity of religious conviction and includes the germane observation at para 43 that "claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion, nor is such an inquiry appropriate for courts to make".' The Court further observed at para 50 that: '… [T]he State is in no position to be, nor should it become, the arbiter of religious dogma. Accordingly, courts should avoid judicially interpreting and thus determining, either explicitly or implicitly, the content of a subjective understanding of religious requirement, "obligation", precept, "commandment", custom or ritual. Secular judicial determinations of theological or religious disputes, or of contentious matters of religious doctrine, unjustifiably entangle the court in the affairs of religion".' Crennan J in the Federal Court of Australia in VSAI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1602 (8 December 2004): '32 … I seriously doubt that the inability of a Tigrinya speaker (who has been attending a particular church for six months) to give the title of hymns in English could give rise only to an inference that that person was not a "genuine member" of a particular faith …'.

[138] UNHCR Handbook, para 199.

[139] Thus an adjudicator would err in allowing an understandable lack of sympathy with a dishonest strategy to cloud his judgment if it led to the overlooking of other credible evidence in the appeal: Ibrahim (17270; 17 June 1998). Citing cases such as Turcios v Immigration and Naturalization Service, 821 F 2d 1396 (9th Cir, 1987), the 9th Circuit of the US Court of Appeals in Akinmade v Immigration and Naturalization Service 196 F 3d 951 at 955-956 (9th Cir, 1999) canvassed the authorities which recognized that a petitioner's fraud and misrepresentation can support a claim of past persecution where it reflects the need to flee: 'As in Turcios, we recognize that a genuine refugee escaping persecution may lie about his citizenship to immigration officials in order to flee his place of persecution or secure entry into the United States'.

[140] The commission of criminal offences in the United Kingdom carries little weight in the assessment of credibility where those offences were extraneous to the asylum application itself: Nanda (13799; 19 August 1996); Ibrahim (17270; 17 June 1998). Dawson J in the Federal Court of Canada in Tvauvi v Canada (Minister for Citizenship and Immigration (IMM-4873-99; 20 July 2000): 'In my view, the CRDD's inference that Mr Tvauri lacked a fear of returning to Georgia by reason of theft of a bicycle, in circumstances which he described as impulsive and foolish, shows the great danger of placing undue reliance on prejudicial evidence with little probative value.' Besides, Art 33(2) of the Refugee Convention is the proper vehicle for the approach to such cases.

[141] Majri (12406; 9 August 1995).

[142] Mahmood (10629; 3 February 1994). See further the observations of Foster J in the Full Court of the Federal Court of Australia in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194, considered worthy of record by Merkel J in Eric Emiantor v The Minister for Immigration and Multicultural Affairs; Denis Okah v The Minister for Immigration and Multicultural Affairs [1997] 1356 FCA (3 December 1997) notwithstanding the subsequent decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo [1997] 144 ALR 567: 'Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony. Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real possibility need be shown, care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.' See further Schiemann LJ refusing leave in R v Immigration Appeal Tribunal, ex p Okpara (1999/7727/C; 7 February 2000).

[143] Chiver (10758; 24 March 1994); [1997] INLR 212; for limitations on Chiver, see Ozkara (above 2.17, fn 1) and also K (DR Congo) [2003] UKIAT 00014 (23 June 2003): 'It is of course perfectly correct that a story should not be rejected solely on the basis of minor discrepancies. A truthful witness may make mistakes because of nerves or forgetfulness or because of the experiences that have been suffered, for example. However, it does not follow that a witness who falters over what might appear to be peripheral matters is in all cases a witness of truth. A person who has made up his story may get the central elements right. An Adjudicator will have to use his common sense and experience to make his findings. He will need to consider whether an account which frays at the edges from time to time is nevertheless a truthful one or alternatively whether the witness has got himself into difficulties in unplanned departures from a pre-rehearsed and unreliable script.' See further the section on exaggeration, below at para 2.22.

[144] Farquharson LJ in Nzamba-Liloneo [1993] Imm AR 225 at 229. Hence it was recognised in Rasool (12134; 19 May 1995) that it was only with 'the utmost caution' that there should be reliance on such deception regarding entry clearance to evaluate the appellant's general credibility. This is particularly pertinent in the absence of anything in the rules permitting entry for a potential asylum seeker: Ahmad and Bibi (11276; 24 August 1996); Aftab Ahmed (00/TH/00230; 1 March 2000). The unfortunate need to adopt some ruse or illegal tactic to obtain admission to a country of refuge suggests that the method of admission to the country is a poor indicator of the actual possession of a well-founded fear of persecution at home: Suleyman (16242; 11 February 1998). In Fajardo v Canada (Minister of Employment and Immigration) (1993), 157 NR 392, the Federal Court of Appeal held that the failure to reveal an intention to claim refugee status when applying for a visa should not form the basis for an adverse credibility finding: 'Can it be seriously suggested that any but the most naive applicant for a visitor's visa would indicate to the visa officer that the purpose of going to Canada was not to visit but to seek asylum? The omission is no basis for the conclusion reached but the conclusion does suggest a determination on the part of the panel to find fault where none existed.' Simon Brown LJ in R v Uxbridge Magistrates' Court, ex p Adimi [2001] QB 667: 'the combined effect of visa requirements and carriers' liability has made it well nigh impossible for refugees to travel to countries of refuge without false documents'. James Munro, Assistant Director of the United Kingdom Immigration Service, in his witness statement in the Administrative Court in European Roma Rights Centre v The Immigration Officer at Prague Airport and Secretary of State for the Home Department [2002] EWHC 1989 Admin: 'The United Kingdom does not accept a responsibility to allow persons to travel to this country in order to make an application for asylum.'

[145] Khan (11610; 7 December 1994); Nasir (L20514; 10 June 1999). Martineau J in the Federal Court of Canada in Lubana v Canada (Minister for Citizenship and Immigration) 2003 FCT 116 (3 February 2003): 'I do not see how the applicant's inability to present a smooth and coherent travel story can serve as reasonable grounds to disbelieve her allegations of persecution in India.'

[146] These are listed in the Home Office Statistical Bulletin (22 August 2006) www.homeoffice.govuk/rds/pdfs06/hosb1406.pdf.

[147] Arslan (10740; 15 March 1994).

[148] R v Naillie and Kanesarajah [1993] Imm AR 462, at 468.

[149] Ezzi (G0003A; 29 May 1997).

[150] Gibbs J in R v Special Adjudicator, ex p Chohan (CO/2042/1999; 10 October 2000). '[T]here is a difference between expressing "considerable doubts" about a story and characterising a claim as "exaggerated" and making findings on material questions of fact': Sackville J in the Federal Court of Australia in Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376.Halidou (17651; 1 July 1998); see further Chiver (10758; 24 March 1994), above para 2.25 n 6; see Sackville J in the Federal Court of Australia in Han v Minister for Immigration and Multicultural Affairs [1999] FCA 376.

[151] Singh (10866; 22 April 1994), in which the claim that 'every Indian who claimed asylum in Germany had been sent back to India' was categorised by the Tribunal as constituting 'the type of exaggeration one might expect from a person in the applicant's position'. Equally, where an appellant's oral testimony is acceptable, material the credibility of which was rejected that had been adduced to bolster the case should not be held against appellant: Wang (13007; 20 February 1996). See also Thorpe LJ in Faraj (CA) (LTA 98/6962/CMS4; 31 March 1999). Gummow and Hayne JJ in Abebe v Minister for Immigration and Multicultural Affairs (1999) 197 CLR 510: 'Secondly, the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not for life itself.'

[152] Sedley LJ granting permission for judicial review in R v Immigration Appeal Tribunal, ex p Bidingua (C/2000/5871; 11 July 2000).

[153] The President of the Tribunal, Ouseley J, in MM (DRC – plausibility) Democratic Republic of Congo [2005] UKIAT 00019 (27 January 2005): '15 the assessment of credibility may involve an assessment of the plausibility, or apparent reasonableness or truthfulness, of what has been said. This assessment can involve a judgement as to the likelihood of something having happened based on evidence and or inferences … The assessment of plausibility is not however a separate stage in the assessment of credibility but is an aspect which may vary in its importance, from case to case. A story may be implausible and yet may properly be taken as credible; it may be plausible and yet properly not believed. There is a danger in erecting too many stages of reasoning with different tests, as opposed to recognising different aspects of reasoning'

[154] Acero Garces (14675; 13 March 1997) The President in MM (DRC – plausibility) Democratic Republic of Congo [2005] UKIAT 00019 (27 January 2005): '15 The particular role of background evidence here is that it can assist either way with that process, revealing the likelihood of part or the whole of what was said to have happened actually having happened. It can be of especial help in showing that adverse inferences can be apparently reasonable when based on an understanding of life in this country and yet are less reasonable when the circumstances of life in the country of origin are exposed. This is a problem of which Adjudicators are well aware, and it can exist even where no background material is available to assist.'. The view is shared elsewhere: 'If an intelligent assessment is to be made of an asylum application, there must be sufficient information in the record to judge the plausibility and accuracy of the applicant's claim. Without background information against which to judge the alien's testimony, it may well be difficult to evaluate the credibility of the testimony': Matter of Dass, BIA Interim Decision 3122 (6 September 1989).

[155] Horvath [1999] INLR 7. Newman J refusing permission for judicial review in R v Special Adjudicator, ex p Arulseelan (CO/2967/1999; 20 November 2000) approved this as being the 'common sense rule.' Other divisions of the Tribunal agree: see eg Yildiram (12811; 20 December 1995); Kavuma (00/TH/00563; 29 March 2000). Without referring to the background documentary evidence, it would be difficult indeed to uphold a determination if there was 'any glimmer of an indication' that the adjudicator based their findings on perceived implausibility: Kaithampillai (18178; 13 May 1999). An adjudicator might even err in making interim findings and conclusions as to the appellant's credibility prior to the section in their determination in which they made an evaluation of the political situation in the country of origin: Ark and Others (00/TH/00204; 17 March 2000) (though Schiemann LJ in Stakeviciene v Secretary of State for the Home Department (CA; IATRF 1999/1144/C; 8 February 2000) said there was no hard and fast rule as to the order in which evidence should be approached). Indeed, background information may even have a bearing on the general assessment of credibility beyond the narrow confines of the plausibility question: Kanagasundram (16094; 29 January 1998).

[156] R v Immigration Appeal Tribunal, ex p Ahmed (CO/0855/98; 10 June 1999), per Mr David Pannick QC (sitting as a Judge of the Queen's Bench Division). He added: 'I emphasise that I do not find that it is incumbent on all special adjudicators to make detailed, or indeed any, findings on the general position where they consider that an applicant lacks credibility.' Teitalbaum J in the Federal Court of Canada in Appiah v Canada (Minister for Citizenship and Immigration) (IMM-3009-96; 19 August 1997): 'It is incumbent on the Board to consider circumstances in the country of origin, if only to acknowledge how they do or do not affect the applicant's story.'

[157] Lord Bridge in Musisi [1987] Imm AR 250, at 260.

[158] Jeyakumar (18779; 20 May 1999); Tharmalingam (18452; 17 June 1999). In general, documentary material which is potentially relevant to the appellant's credibility must clearly be considered before any decision on credibility is reached, and alluding to evidence is no substitute for showing that one has considered it: Habteselassie (00/TH/00308; 28 February 2000).

[159] Tharuiviarathnam (01/TH/02741; 23 November 2001): '17. The Tribunal would observe that save in unusual cases the time has long gone for ritual reliance in grounds of appeal on the point made in Horvath that claims must be assessed in the light of the objective country evidence. In the real world of asylum appeals adjudicators regularly deal with asylum appeals brought by claimants from Sri Lanka and in virtually every case their attention is directed to objective country materials usually submitted by both parties. In recognition of this type of familiarity with country conditions, the courts frequently refer to the 'expertise' of adjudicators and the Tribunal. It is obviously not to be equated with the expertise of an academic who is a specialist on one or more particular countries. But it is an expertise nevertheless.'

[160] Mendes (12183; 5 June 1995); Cullen J in the Federal Court of Canada in Iqbal Singh Bains v Canada (Minister of Employment and Immigration) (1993; 92-A-6905): 'Moreover, the events as described by the Applicant may have seemed implausible and therefore not credible to the Refugee Division, but as counsel for the applicant points out "Canadian paradigms do not apply in India". Torture, unhappily, is real, as is exploitation and revenge, often resulting in killings.'

[161] Neuberger LJ in the Court of Appeal in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 (20 July 2006): '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 p 81: "In assessing the general human rights information, decision-makers must constantly be on their guard to avoid implicitly recharacterising the nature of the risk based on their own perceptions of reasonability."' Chadwick LJ in the Court of Appeal in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 (20 July 2006): '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.'

[162] Lee J in the Full Court of the Federal Court of Australia in 'W148/00A' v Minister for Immigration and Multicultural Affairs [2001] FCA 679 (22 June 2001): '[21] A circumstance is "implausible" if it is beyond human experience of possible occurrences, that is to say, inherently unlikely.' Campbell J in the Federal Court of Canada in Shenoda v Canada (Minister for Citizenship and Immigration) 2003 FCT 207 (20 February 2003): 'However, plausibility findings should be made only in the clearest of cases, ie, if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. (see L Waldman Immigration Law and Practice (1992) at 8.22).' Though the President of the Tribunal disagreed in MM (DRC – plausibility) Democratic Republic of Congo [2005] UKIAT 00019 (27 January 2005) [16], prior to Y and HK in the Court of Appeal. Keene LJ in the Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 (26 July 2006) '26. None of this, however, means that an adjudicator is required to take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be. The decision maker is not expected to suspend his own judgment, nor does Mr Singh contend that he should. In appropriate cases, he is entitled to find that an account of events is so far-fetched and contrary to reason as to be incapable of belief.' See Yildirim [2002] UKIAT 02813 (18 July 2002), para 2.4 n 8, above.

[163] Suleyman (16242; 11 February 1998). 'in considering claims of persecution it is "highly advisable to avoid assumptions about how other societies operate"' Perez-Alvarez v INS, 857 F 2d 23 at 24 (1st Circuit of the US Court of Appeals, 1988, adopting approach of the BIA). Sedley LJ in the Court of Appeal in Mazrae v Secretary of State for the Home Department [2004] EWCA Civ 1235 (28 July 2004): '21 Beyond this, the adjudicator's confident assertion that "if the appellant's account were genuine one would have expected the appellant to display other physical and psychological symptoms", seems to me inexplicably sweeping. So does her expectation that the applicant should have known why he had been arrested. States like Iran do not necessarily follow the principles of Christie v Leachinsky and Art 5 of the European Convention on Human Rights. The same is true of her disbelief that the applicant, having been detained, should have been released without being monitored. Do people in a police state necessarily know that they are being monitored? None of this is to say that the applicant's application for asylum should necessarily have succeeded. It is simply to say that the adjudicator's reasons for disbelieving his entire account may be less than cogent.'

[164] Pouran (15568; 6 October 1997). 'In a civil war situation involving a significant amount of killing, torture and other human rights abuse, nothing should be, as the Tribunal called it, "surprising"': Einfeld J in the Federal Court of Australia in Rajamanikkam v Minister for Immigration and Multicultural Affairs [1999] FCA 1411 (19 November 1999). Sedley LJ in the Court of Appeal in Gheisari v Secretary of State for the Home Department [2004] EWCA Civ 1854 (16 December 2004): 'The adjudicator is there to make his or her own evaluation of the possibility it does not have to be a probability that the account given by the appellant, odd or farfetched though it may appear, is essentially truthful. Exactly the same is the case where the applicant tells a story of linear likelihood. Its anterior probability is not a guarantee of its veracity. In both classes of case the adjudicator, like a jury, has in my judgment a two stage inquiry to conduct. First, how inherently probable or improbable is the account? Secondly, may it, though inherently improbable, be true or, though inherently probable, be untrue?' Pill LJ alongside him, [21]: 'What would be wrong would be to say – and I agree with Sedley LJ – that because evidence is inherently unlikely it inevitably follows that it is wrong. An unlikely description may, upon a consideration of the circumstances as a whole, including the judge's assessment of the witness and any explanations he gives, be a true one.' Regarding an assertion that it was unlikely that the applicant for asylum would have obtained a passport immediately prior to the final incident leading him to leave the country, the Refugee Status Appeals Authority stated of the two events: 'the timing is remarkably fortuitous. However, there is no rational basis for asserting, without more, that the two events could not have coincided, or that the only explanation for the coincidence is that the appellant's account is a fabrication': New Zealand Refugee Status Appeals Authority in Appeal No 265/92, Re SA, 29 June 1994. Conclusions that it was 'astonishing' that a person should be released by guerillas who had beaten him rather than being killed or that a person was released by torturers rather than being liquidated have not survived judicial scrutiny in the United States: Mosa v Rogers 89 F 3d 601 at 605 (9th Cir, 1996); Lopez Reyes v INS 79 F 3d 908 (9th Cir, 1987); Turcios v INS, 821 F 2d 1396 at 1399 (9th Cir, 1987). See also Kirby J in Minister for Immigration and Ethnic Affairs v Guo [1997] 144 ALR 567.

[165] Ivanov (12583; 10 October 1996). Kondo (10413; 12 November 1993) shows the principle in play. In that decision an ostensibly implausible account, featuring a 'quite extraordinary' escape, was set against the application's consistency and medical evidence, these latter features carrying the day for the claimant. Lee J in the Federal Court of Australia in W321/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 210 (11 March 2002): '30 The Tribunal cannot exclude an applicant's account from the material the Tribunal is obliged to consider, by relying upon a bare assertion that the applicant's account is "implausible". There must be facts found that are inconsistent with claimed events, or the claimed events must be so beyond the human experience of possibilities that they may be said to be inherently unlikely.'

[166] Sedley LJ granting permission for judicial review in R v Immigration Appeal Tribunal, ex p Bidingua (C/2000/5871; 11 July 2000). See Lee J in the Federal Court of Australia in W64/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 970 (8 August 2002), demonstrating that characterisation of events as implausible without adequate evidential foundation for such a conclusion was in error of law.

[167] Schiemann LJ in the Court of Appeal in Adam v Secretary of State for the Home Department [2003] EWCA Civ 26 remarked that a persecuted minority is a 'candidate for the unusual'.

[168] Bingham MR in (1985) 38 Current Legal Problems 14 cited as relevant in this area of law by Keene LJ in the Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 (26 July 2006); and a decade earlier, by the Tribunal in Kasolo (13190; 1 April 1996). Keene LJ in the Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223 (26 July 2006): '…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.' Martineau J in the Federal Court of Canada in Lubana v Canada (Minister for Citizenship and Immigration) 2003 FCT 116 (3 February 2003): 'the Board should not be quick to apply the North American logic and reasoning to the claimant's behaviour: consideration should be given to the claimant's age, cultural background and previous social experiences: see Rahnema v Canada (Solicitor General) [1993] FCJ No 1431 at para 20 (QL) (TD); and El-Naem v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 185 (QL) (TD).' Courtney J in the High Court of Auckland in X & Y v Refugee Status Appeals Authority (CIV–2006–404–4213; 23 April 2007; 17 December 2007): "[43] The fact that a scenario 'defies common-sense' is not, in itself, a basis on which to draw an inference and was probably an unfortunate choice of expression by the Authority." At the Fifth IARLJ Conference held at Wellington, New Zealand in October 2002 Sir Stephen Sedley (cited by Rodger Haines QC, "Judicial or Administrative Protection of Asylum-Seekers – Content or Form?" (2005) given at the IARLJ World Conference, Stockholm, 21 April 2005 at [23] 'memorably articulated the overt and covert pressures on asylum judges which are capable of affecting the impartiality of their decision-making and which render their independence fragile: "In an exercise which is typically one of testing assertions, not of choosing between two stories, the form which impartiality most typically takes for the judge is abstention from pre-ordained or conditioned reactions to what one is being told. It means not so much knowing others as knowing oneself – perhaps the hardest form of knowledge for anyone to acquire."'

[169] Lutfy J in the Federal Court of Canada in Najeebdeen v Canada (Minister of Employment and Immigration) (IMM–5438–98; 30 July 1999). Pregerson CJ in the US Court of Appeals in Lopez-Reyes v Immigration and Naturalization Service, 79 F 3d at 911 (9th Cir, 1996): 'His conclusion that the guerillas' actions were "astonishing" was based on personal conjecture about what guerillas likely would and would not do. Because conjecture is not a substitute for substantial evidence, we cannot uphold this finding. Del Valle v INS, 776 F 2d 1407 at 1413 (9th Cir, 1985).'

[170] Sedley LJ adjourning the application for permission to appeal in EG & VG (Russia) v Secretary of State for the Home Department [2007] EWCA Civ 354: 'It is in my view wholly unacceptable for a fact-finder to start with a passage like the one I have quoted. Such an approach denies credit to even the possibility of the kind of courage which asylum and human rights law are there to recognise and to shield … To anyone who has lived through any part of the 20th century, further comment is superfluous.' Lord Neuberger of Abbotsbury in the Court of Appeal in SS (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 310 (10 April 2008): '17 … the SIJ said it was "incredible that if [SS] had run away on the fifth day of the demonstration, he would have returned the next day and placed himself in danger". I certainly would not have come to that conclusion myself. Protesters in a country such as Iran must frequently (indeed, I suspect, normally) know from the start of any demonstration that they run the risk of arrest and consequent ill-treatment, but that does not prevent many of them from demonstrating.' See also Samani v Canada (Minister for Citizenship and Immigration) (FCTD) (IMM–4271–97; August 18, 1998), Hugessen J sitting in the Federal Court of Canada and holding that a finding of implausibility is rarely convincing when it is based on a claimant's account of behaviour which the decision-maker considered dangerous: 'It is never particularly persuasive to say that an action is implausible simple because it may be dangerous for a politically committed person.'

[171] Refugee Status Appeals Authority of New Zealand in Refugee Appeal No 76044 (RPG Haines QC (Chairperson); 11 September 2008) [40]. De Montigny J in the Federal Court of Canada in Sukhu v Canada (Citizenship and Immigration) 2008 FC 427 (3 April 2008): '[21] The same can be said of the Board member's view that the applicant should have denounced the police officer who raped her to the Ministry of Interior or the Attorney General. Her explanation that she had no more confidence in the police at that point was perfectly reasonable, considering what she had gone through before. After all, she had already tried to report a previous sexual assault to three police stations, to no avail. There was also documentary evidence showing that only 3% of the rape complaints make it to trial, and that the conviction rate is below 1% (Tribunal Record, p 174). Yet, the Board member does not discuss any of this, thus showing insensitivity to the applicant's plight and certainly not demonstrating that he was familiar with the Gender Guidelines.' See also Blanchard J in the Federal Court of Canada in El Hage v Canada (Citizenship and Immigration), 2008 FC 1177 (17 October 2008).

[172] The history of state repression in many countries of the world has thrown up endless instances of dissidents who have tried to protect their families as well as themselves by telling their families nothing about their activities or even their beliefs, noted Sedley LJ granting permission to appeal to the Court of Appeal in PM (Iran) v Secretary of State for the Home Department [2009] EWCA Civ 1415 (4 December 2009).

[173] Sokoto (12898; 16 January 1996).

[174] Rule 339M.

[175] Rule 339M.

[176] Possibly – the Delphic drafting technique of the immigration rules obscures their import, for while a rule that on its face suggests it attributes responsibility to an agent has been retained, it refers only to rules that have been repealed: see r 342; and s 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 does not refer to third party liability (and it would seem, given express reference was thought essential in the immigration rules, that such express reference is necessary). Any application of these rules will have to take account of the principle of legality, as discussed in JT Cameroon v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008) at 2.28 below, and the considerations below regarding the role of agents, at para 2.33 n 7.

[177] Eurodac Regulation 2000/2725/EC. Reg 21(1) of Directive 2003/343/EC (Dublin II) under the heading "Administrative Co-operation" reads: "1. Each member state shall communicate to any member state that so requests such personal data concerning the asylum seeker as is appropriate, relevant or non excessive for: … (b) examining the application for asylum'.

[178] RZ (Eurodac, fingerprint match, admissible) Eritrea [2008] UKAIT 00007 (28 January 2008): 'Lawful use of the Eurodac data does not come to an end with the identification of the member state responsible for processing the asylum claim. In the present case because of the lapse of time, the United Kingdom accepted responsibility for processing the claim. There is no proper legal basis for holding that fingerprint evidence from Eurodac should not to be taken into account when examining the application itself.'

[179] RZ (Eurodac, fingerprint match, admissible) Eritrea [2008] UKAIT 00007 (28 January 2008): '45 … In the light of the evidence we have heard about the Eurodac system and its accompanying safeguards, in our judgment evidence of a match produced through the Eurodac system and confirmed by IFB [the Home Office's Immigration Fingerprint Bureau] should be regarded as determinative of that issue in the absence of cogent evidence to the contrary.'

[180] RZ (Eurodac, fingerprint match, admissible) Eritrea [2008] UKAIT 00007 (28 January 2008): '48 … The assertion that a particular appellant has previously given fingerprints in a member state is not in itself an allegation of forgery or fraud bringing into play the higher civil standard of proof identified in RP …It is an allegation that there is a match between fingerprints held in the Eurodac system. If the match is proved the respondent may well seek to argue that the appellant has not told the truth about material parts of his asylum claim and that his evidence is unreliable in whole or in part. It will be for the Tribunal to decide in the light of the evidence as a whole what inferences of fact can properly be drawn from any proved fingerprint match. 49 … the burden of proving a fingerprint match from the Eurodac system lies on the respondent and the standard of proof is the balance of probabilities.' Contrast YI (Previous claims – Fingerprint match – Eurodac) Eritrea [2007] UKAIT 00054: '12. Third is the applicable burden and standard of proof. Eurodac data is produced by the Respondent in cases such as this essentially to assert deception/fraud by an Appellant. The burden of proof rests with the person making the assertion and the standard of proof where fraud is asserted and where the consequences for the Appellant are correspondingly serious is the higher civil standard of 'proof to a high degree of probability' – R v Secretary of State for the Home Department ex p. Khawaja [1982] UKHL 5; [1984] AC 74.'

[181] Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004; Immigration rule 339N; HC 395 r 339N.

[182] Section 8(2).

[183] Section 8(3)(b).

[184] Section 8(3)(c)–(d).

[185] Section 8(5).

[186] Section 8(6).

[187] Section 8(4).

[188] Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008): 'the perceived need for section 8 arose out of concern that those seeking entry to the United Kingdom were being advised to "throw away documents or refuse to co-operate either with the process of determining their country of origin and their passage into the country or with re-documentation for return purposes." (Mr David Blunkett, then Secretary of State, in the House of Commons on the second reading of the Bill on 17 December 2003, Hansard vol 415, Col 1588).'

[189] Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008) cited (with agreement, at [21]) the sponsoring Minister, Baroness Scotland of Asthal, as to the meaning and effect of s 8. Baroness Scotland stated (Hansard 5 April 2004, cols 1683–1685): 'I made it clear at the beginning that [the clause] is not determinative, because an exercise of judgment still has to take place, but these are factors which should properly be taken into account. …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. …Although [the clause] prescribes that certain behaviour is to be regarded as damaging to the claimant's credibility, it prescribes neither the extent to which credibility is to be regarded as damaged nor the weight to be given to an adverse credibility finding on any point. What is does is provide a framework for decision makers so that all the listed factors are considered in a systematic and transparent way that is consistent across all stages of the process. The person adjudicating the decision will be free to come to a just decision within the context of the circumstances they find'.

[190] Such being part of the rule of law itself, see the lecture by The Rt. Hon Lord Bingham of Cornhill KG (16 November 2006; the Centre for Public Law), The Rule of Law, emphasis added: 'First and foremost, I suggest, that decisions are made by adjudicators who, however described, are independent and impartial: independent in the sense that they are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial in the sense that they are, so far as humanly possible, open-minded, unbiased by any personal interest or partisan allegiance of any kind.'

[191] SM (Section 8: Judge's process) Iran [2005] UKAIT 00116 (05 July 2005): '10 In our judgment, although section 8 of the 2004 Act has the undeniably novel feature of requiring the deciding authority to treat certain aspects of the evidence in a particular way, it is not intended to, and does not, otherwise affect the general process of deriving facts from evidence. It is the task of the fact-finder, whether official or judge, to look at all the evidence in the round, to try and grasp it as a whole and to see how it fits together and whether it is sufficient to discharge the burden of proof. Some aspects of the evidence may themselves contain the seeds of doubt. Some aspects of the evidence may cause doubt to be cast on other parts of the evidence. Some aspects of the evidence may be matters to which section 8 applies. Some parts of the evidence may shine with the light of credibility. The fact-finder must consider all these points together; and, despite section 8, and although some matters may go against and some matters count in favour of credibility, it is for the fact-finder to decide which are the important, and which are the less important features of the evidence, and to reach his view as a whole on the evidence as a whole.'

[192] Sedley LJ granting permission to appeal to the Court of Appeal in JK (Syria) v Secretary of State for the Home Department [2007] EWCA Civ 1435 (27 November 2005): '3. It seems to me that in this case, and it is not the first such case, there is a serious question of law about the application of section 8 to a case such as this. It is one thing to recognise that an applicant could have applied for asylum in France and to hold against her, if there was no good explanation for it, the fact that she did not. It does not require legislation to tell an immigration judge that that may be material. It is arguably another thing to hold against an individual, not because it has any intrinsic weight but by command of law, the fact that she has come to this country using a false passport when, if her story is correct, she would have had no other way of getting here. To be driven by legislation to hold something like that against an applicant is a constitutional anomaly in relation to the independence of a fact finding judicial tribunal; and in my judgment a question arises as to whether, if the use of a false passport seems to have been ineluctable, any weight or any more than token weight is required by section 8 to be given to that fact.'

[193] Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008): '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 (R (Sivakumar) v Secretary of State for the Home Department 2003 UKHL 14, [2003] 1 WLR 840). … Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (2 July 2008): '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 sub-section 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.'

[194] Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008) recorded the fact that Treasury Counsel before him endorsed 'the submission as to the effect of section 8(1) made to this court on behalf of the Secretary of State in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223: '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.'

[195] Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008): 'I do, however, agree with the parties that there is a real risk that section 8 matters were given a status and a compartment of their own rather than taken into account, as they shall have been, as part of a global assessment of credibility.'

[196] Pill LJ in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 [21].

[197] The Immigration (Claimant's Credibility) Regulations 2004 SI 2004 No 3263.

[198] MM (Section 8: commencement) Iran [2005] UKAIT 00115 (05 July 2005) [12]–[15].

[199] MM (Section 8: commencement) Iran [2005] UKAIT 00115 (05 July 2005): '16 … section 8 is about the effect of certain types of specified behaviour in assessing credibility: it applies regardless of any specific challenges.'

[200] The Immigration Rules r 339I; Council Directive 2004/83/EC of 29 April 2004 Art 4(1).

[201] The Immigration Rules r 339J; Council Directive 2004/83/EC of 29 April 2004 Art 4(3).

[202] The Immigration Rules r 339I; Council Directive 2004/83/EC of 29 April 2004 Art 4(1). The ECJ in Salahadin Abdulla (Area of Freedom, Security and Justice) [2010] EUECJ C-175/08 (02 March 2010) at [85] specifically stressed the importance of 'the cooperation between the Member State and the person concerned' in the status determination process.

[203] The Immigration Rules r 339I(i); Council Directive 2004/83/EC of 29 April 2004 Art 4(2).

[204] The Immigration Rules r 339I(ii); Council Directive 2004/83/EC of 29 April 2004 Art 4(2).

[205] The Immigration Rules r 339I(iii); Council Directive 2004/83/EC of 29 April 2004 Art 4(2).

[206] Section 8(4) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 puts this on the agenda for consideration as a factor affecting the asylum seeker's credibility, see above para 2.28.

[207] Keith J in the Administrative Court in R (Bouttora) v Immigration Appeal Tribunal [2004] EWHC 1873 (Admin): 'The fact that an asylum-seeker did not claim asylum in a country through which he was transiting should generally not be treated as damaging his credibility.' 'Whether an applicant had a prior opportunity to seek the protection of another country before seeking asylum in Australia is unlikely to assist the Tribunal in determining whether there is a real chance that persecution may be suffered by that person if asylum is denied … there may be many reasons why a person who now fears persecution did not take earlier opportunities to seek asylum outside the country of nationality. Circumstances may have changed including the attitude of the applicant to changing events.' Lee J in the Federal Court of Australia in Murat Demir v Minister for Immigration and Ethnic Affairs [1996] 1158 FCA (23 December 1996).

[208] Richards LJ in the Court of Appeal in HH Iraq v Secretary of State for the Home Department [2006] EWCA Civ 1374 (9 October 2006): '38 … Syria is not a signatory to the Refugee Convention and is not a safe country within the meaning of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 that failure to take advantage of a reasonable opportunity to make an asylum claim can itself give rise to an adverse inference under s 8 of that Act. On the other hand, there is evidence that Syria affords temporary protection to Iraqi asylum seekers and that a large number of Iraqis live in the country. I would not therefore exclude out of hand the possibility of holding against an Iraqi asylum seeker a failure to seek protection from the Syrian authorities. But it would, in my view, require very careful examination of the position before any such adverse inference were drawn'.

[209] See eg Professor Hathaway and the Ex-Comm Resolutions, cited with approval by Simon Brown LJ in the Divisional Court in R v Uxbridge Magistrates Court, ex p Adimi [1999] Imm AR 560; this element of the reasoning should not be affected by that judge's second thoughts in European Roma Rights Centre v Immigration Officer at Prague Airport and Secretary of State for the Home Department [2003] EWCA Civ 666, [2003] All ER (D) 260 (May) on some of the Adimi issues, as the concerns on that score were limited to the ability of a Treaty to found legitimate expectations. Circuit Judge Fletcher in Damaize-Job v INS, 787 F 2d 1332 at 1336 (US Court of Appeals, 9th Cir): 'Failure to apply for asylum in any of the countries through which he passed or in which he worked prior to his arrival … does not provide a valid basis for questioning the credibility of his persecution context. The IJ appears to have assumed that an individual who truly fears persecution in his homeland will automatically seek asylum in the first country in which he arrives. However, there is no basis for this assumption. Damaize's claims of persecution are no less credible because once he left Nicaragua, he was not satisfied with "any port in a storm".' Gibson J in the Federal Court of Canada in Nadarajan v Canada (Minister for Citizenship and Immigration) 2001 FCT 1222: 'I am satisfied that the law regarding failure to claim Convention refugee status at first opportunity is reasonably well settled. In Gavryushenko v Canada (Minister of Citizenship and Immigration) (2000) 194 FTR 161, Associate Chief Justice Lutfy, after citing and quoting from Professor Hathaway's work The Law of Refugee Status (1991) and the decision of Mr Justice MacKay in Ilie v Canada (Minister of Citizenship and Immigration) (1994) 88 FTR 220, wrote at para 11: 'The fact that a person does not seize the first opportunity of claiming refugee status in a signatory country may be a relevant factor in assessing his or her credibility, but it does not thereby constitute a waiver of his or her right to claim that status in another country.' The Tribunal in A (Turkey) [ 2003] UKIAT 00034 (28 July 2003) wrote that: 'the question of failure to claim asylum en route and its implications for credibility … in the light of Adimi has largely fallen into disrepute'; though that same Tribunal noted 'a careful assessment of the facts and the claim may indicate an inconsistency between the claim that the person in question was ill-informed and nervous on the one hand and on the other had a sophisticated knowledge of which countries do and which do not take asylum seekers from outside Europe'.

[210] Newman J in R v Uxbridge Magistrates Court, ex p Adimi [1999] Imm AR 560. See Lord Hoffmann's description of asylum processes in Greece for an example of the reasons why an asylum seeker might prefer there chances elsewhere, in Secretary of State for the Home Department v Nasseri [2009] UKHL 23 (6 May 2009): 'The position in Greece appears to be, as Laws LJ suggested, that the practice for dealing with asylum applications may leave something to be desired and very few applicants are accorded refugee status. If, as is usually the case, their applications are rejected, they are given a document directing them to leave the country and their continued presence there is uncomfortable.'

[211] Ospina (14017; 21 October 1996); Smith J in the High Court in R v Immigration Appeal Tribunal, ex p Parra (CO/1475/99; 26 July 2000; unreported): '… the Special Adjudicator should not have found that the applicant's decision to come to England rather than seeking asylum in Holland damaged the credibility of her claim to be in fear. With respect to the Special Adjudicator, this seems to me to be a thoroughly bad point on which to have relied. This young single woman, aged 20, has a mother living in England. If she were in fear of her life in Ecuador and had decided to flee, it would be natural that she would choose England as she would there have the support and protection of her mother. She would obviously not wish to stay in Holland if she could reach England in safety. Also, assuming that her fear for life and limb while in Ecuador were genuine, it seems to me obvious that that fear would be largely abated as soon as she landed in any European country. Her concern would then be to reach a country where she would have not just physical safety but a degree of support. In any event she had a ticket for London. Why, assuming her story to be true, would she want to stay in Holland?'

[212] Ospina (14017; 21 October 1996).

[213] Kamara (10671; 16 February 1994).

[214] Otton J in R v Secretary of State for the Home Department, ex p Ekinci [1992] Imm AR 464 at 473.

[215] Tusiime (10952; 25 May 1994).

[216] Lord Bridge in Bugdaycay [1987] Imm AR 250, at 259.

[217] Simon Brown LJ in R v Uxbridge Magistrates Court, ex p Adimi [1999] Imm AR 560, giving the imprimitur of the Court of Appeal to the Guidelines of the UNHCR on Detention of Asylum Seekers.

[218] In R v Secretary of State for the Home Department, ex p Sivakumaran [1991] Imm AR 80 at 87, it was found that such an approach did not breach Art 31 of the Refugee Convention which prohibits penalties against refugees 'who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorisation provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence'.

[219] Seddini (11266; 12 August 1994).

[220] Collins J in the Administrative Court in R v Secretary of State for the Home Department, ex p Q [2003] EWHC 195 Admin: 'Particularly if the passport was (as here) likely to have been an European Union passport (almost certainly Portuguese) it is easy to see how a busy immigration officer might be prepared to wave through a passenger who was with another and who was said not to speak English.' Later he referred to 'the enormous pressure on individual immigration officers to process passengers as quickly as possible.'

[221] HC 395 r. 339MA, transposing Art 8(1) of Council Directive 2005/85/EC of 1 December 2005.

[222] Henry J in R v Secretary of State for the Home Department, ex p Alupo [1991] Imm AR 538 at 544. Madame Justice Reed in the Federal Court of Canada in Williams v Canada (Minister for Citizenship and Immigration) (IMM–4244–94, 30 June 1995): 'With respect to the applicant's delay in making a claim for refugee status, she gave an entirely credible explanation for that delay. She did not know she was entitled to claim refugee status on the ground of spousal abuse. It was only after she had contacted a lawyer, on another matter, and told him her story that she was advised she might do so. The fact that until a few years ago most of the legal profession in Canada would have thought that claiming refugee status in a situation of spousal abuse was not possible, surely demonstrates the reasonableness of her explanation. I think it was a serious error for the Board to apply the presumption respecting delay, which developed in the cases of those seeking refugee status on, what might be called, traditional grounds to the applicant's situation.' Blanchard J in the Federal Court of Canada in El Hage v Canada (Citizenship and Immigration), 2008 FC 1177 (17 October 2008): '[13] On the issue of delay, the case law tells us that the element of delay depends on the circumstances of each case and that the more inexplicable the delay, the greater the probability that subjective fear is absent: Espinosa v MCI, 2003 FC 1324 (CanLII), 2003 FC 1324 at para 5. The panel was then entitled to consider the delay, but had to do so while considering all of the evidence. In this case, the applicant had explained that she had no intention of claiming refugee status before the war began. It was not until after her children called in September, the precipitating event, that she decided in October to seek the protection of Canada as a sur place refugee. … In my opinion, the panel erred in not specifically addressing the applicant's explanation.' See O'Reilly J in the Federal Court of Canada in Jumbe v Canada (Citizenship and Immigration), 2008 FC 543 (2008 FC 543; 29 April 2008): '[11] … Mr Jumbe explained to the Board why he did not claim asylum in the United Kingdom or the United States. He had valid visas for both countries, so he could safely travel and stay there while the visas were in force. Accordingly, he took the opportunity to visit family members and obtain their advice. He took action to obtain refugee protection when his other options ran out. True, Mr Jumbe could have made a refugee claim elsewhere. He stated that he wanted to come to Canada where there was a greater chance of making a successful claim, greater likelihood of achieving family reunification and a greater opportunity for him to continue his doctoral studies. [12] Certainly, the Board was entitled to consider whether Mr Jumbe's explanation cast doubt on his claim to fear political persecution in Zimbabwe, along with all of the other evidence. But the Board concluded that Mr Jumbe's failure to claim elsewhere, in itself, proved "that he did not have a subjective fear". Indeed, the Board stated that Mr Jumbe had failed to rebut the presumption that refugee claimants will seek asylum at the first opportunity. As I understand it, there is no such presumption and, therefore, no burden of proof on refugee claimants to rebut it. Rather, a claimant's behaviour and testimony must be considered by the Board, along with the other evidence, to determine whether he or she has a genuine fear of persecution. … [14] Based on the foregoing, I am satisfied that the Board's conclusion that Mr Jumbe did not fear persecution in Zimbabwe was unreasonable. I understand that others in Mr Jumbe's circumstances might have left Zimbabwe sooner and claimed refugee protection earlier. However, his personal resources and means, and the opportunities at his disposal to visit and consult with family members and others before arriving in Canada, do not necessarily defeat or claim to fear political persecution, given the other evidence.' Pregerson J in the United States Court of Appeals for the Ninth Circuit in Karouni v Gonzales (No 02–72651; 7 March 2005: 'Karouni testified that, in 1987, when he spoke with an immigration lawyer, Karouni did not independently know, and his lawyer did not tell him, that he could obtain derivative legal resident status from his brother or that asylum was available to him. Karouni also testified that, in 1987, he focused on obtaining lawful permanent resident status in the United States through his work. That the IJ found it hard to believe that an immigration lawyer would fail to explore all of Karouni's options for obtaining lawful status in the United States is nothing more than the IJ's generalisation about what a knowledgeable and thorough immigration attorney should have done. Again, it is well-settled in this circuit that an IJ's speculation and conjecture cannot substitute for substantial evidence. See, eg Paramasamy, 295 F 3d at 1052. And we have already held that an IJ may not speculate as to why an alien did not apply for asylum immediately upon entry to the United States. See Guo v Ashcroft, 361 F 3d 1194, 1201–02 (9th Cir, 2004). In any event, Karouni's decade-long delay in seeking asylum is also reasonable, given that he was unaware that he was even eligible for it and attempted to obtain lawful immigrant status through other means – namely, his work.'

[223] Thompson (18848; 26 November 1998).

[224] Lord Brown in the House of Lords in Adam and Limbuela, R (on the application of) v Secretary of State for the Home Department [2005] UKHL 66 (3 November 2005): '101 … Nor do the statistics suggest that late claimants make a disproportionate number of the unmeritorious claims.' Social Security Advisory Committee report on the 1996 amendments to income support regulations which says: 'Lack of knowledge of procedures, arriving in a confused and frightened state, language difficulties or fear of officialdom may all be insuperable barriers to making any kind of approach to the authorities at port of entry. Many intending applicants will quite reasonably want to get help and advice before making their claim …' Lord Dubs in Parliament (HL Deb 30 January 1996 vol 568 cols 1311–59 1311), discussing amendments to Social Security Regulations designed to disqualify late asylum applicants from income support: 'The majority of asylum seekers – the Refugee Council says this applies to up to 80 per cent. of its clients – apply for asylum within a month of arrival and most do so within a week or so of being here. They are not holiday makers, tourists or visitors who are staying here after their money runs out to enjoy the delights of our social security system. Their first priority was to enter the safety of our country; their second was to get in touch with an organisation to help them; and their third was to seek official permission to stay. They did all of that within a couple of weeks of being here. Can anyone truthfully say that they were wrong?' In the same debate, Baroness Hollis of Heigham: 'In this House – and, indeed, in the country – I believe that we are fortunate. We live under the rule of law; we have never been invaded; we have never had enemies on our land; and we do not fear government. In fact, many of us in this House are government. We do not fear terrorists; we do not fear police; we do not fear officials and we do not fear the dark. We know our rights. We are sure that the system is on our side. How do we begin to comprehend the situation where an asylum seeker comes from, or what it is like to arrive here confused, terrified, perhaps unable to speak English, often in broken health and desperate for the safety of anonymity? How can we comprehend that? Which of us has experienced that?' The Secretary of State is under a duty to ensure that the authorities to whom an asylum application might be made refer the matter to the appropriate place, see HC 395 rule 328A; Council Directive 2004/83/EC of 29 April 2004 Art 6(5). Tahir Hussain Khan v Canada, Communication No 15/1994, U.N.Doc CAT/C/13/D/15/1994 (1994): '12.3 […] The Committee notes that some of the author's claims and corroborating evidence have been submitted only after his refugee claim had been refused by the Refugee Board and deportation procedures had been initiated; the Committee, however, also notes that this behaviour is not uncommon for victims of torture. The Committee, however, considers that, even if there could be some doubts about the facts as adduced by the author, it must ensure that his security is not endangered. The Committee notes that evidence exists that torture is widely practised in Pakistan against political dissenters as well as against common detainees.'

[225] Rieda (14359; 23 December 1996) (speaking of a one-week delay).

[226] In one grant of leave to appeal, the Chairman stated 'The adjudicator's comment "A genuine refugee would have applied for political asylum at the earliest possible opportunity …" appears to be a misdirection which could have affected his assessment of credibility': Matinkima (14426; 24 December 1996). See also Gharbi (11791; 23 January 1995). It is imperative that any explanation for a delay be properly weighed: failure to take into account evidence to the effect that the appellant lacked self-confidence, was confused and had difficulty in communicating, has led to an adjudicator's decision being set aside: Naidu (16202; 6 February 1998).

[227] Collins J in the Administrative Court in R v Secretary of State for the Home Department, ex p Q [2003] EWHC 195 Admin, a judgment very largely upheld by the Court of Appeal in [2003] EWCA Civ 364: '… it is not uncommon that threats are made that the Claimant's family will be made to suffer if instructions are not obeyed. Equally, I am well aware from my position as President of the Immigration Appeal Tribunal (the IAT) that in some countries to claim asylum at a port will result in immediate refusal to enter and removal by the police. This has led some to believe that it is essential to gain entry before claiming asylum.' The Master of the Rolls on appeal: 'The Attorney-General recognised the possibility of duress by threats against the families of asylum seekers, and this phenomenon is recorded in the Home Office research. It is also clear that some asylum seekers are so much under the influence of the agents who are shepherding them into the country that they cannot be criticised for accepting implicitly what they are told by them. There is no valid comparison between agents of this kind, whose interests at the point of entry may well be in serious conflict with those of the asylum seekers, and professional advisers. To disregard the effect that they may have on their charges would be both unrealistic and unjust'; and, at [29]: 'It is, incidentally, relatively easy to think of a reason why the Claimant should have been kept in ignorance of or at least did not divulge the name in which he travelled. That name would be on the flight manifest and enquiries could then be made which might lead to identification of the agent.' Martineau J in the Federal Court of Canada in Lubana v Canada (Minister for Citizenship and Immigration) 2003 FCT 116 (3 February 2003): 'In particular, where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent's instructions, it has been held to be peripheral and of very limited value to a determination of general credibility: see Attakora v Minister of Employment and Immigration (1989) 99 NR 168; and Takhar v Canada (Minister of Citizenship and Immigration) [1999] FCJ No 240 at para 14 (QL) (TD) (Takhar).'

[228] Taylor J in R v Secretary of State for the Home Department, ex p Jeyakumaran [1994] Imm AR 45 at 49. For the approach to return to the country of origin in the context of the Cessation Clauses, see para 8 n 10.

[229] Kasolo (13190); UNHCR Handbook, para. 196.

[230] Art 4(1).

[231] The Immigration Rules, r 339L; Directive 2004/83 Art 4(5).

[232] The Immigration Rules r 339L(i).

[233] The Immigration Rules r 339L(ii).

[234] The Immigration Rules r 339L(iii).

[235] The Immigration Rules r 339L(iv).

[236] The Immigration Rules r 339L(v); Council Directive 2004/83/EC of 29 April 2004, Art 4(5). See the Master of the Rolls in Karakas v Secretary of State for the Home Department (IATRF 97/1023/4; 10 June 1998; 'It is wholly wrong to think in this area of the law that there is any requirement of corroboration'; see further Kasolo (13190; 1 April 1996). '[T]here is no requirement that testimony which is plausible, credible and frank must be supported by external corroboration.' New Zealand Refugee Status Appeals Authority in Refugee Appeal No 1/92 Re SA; 'the imposition of such a [corroboration] requirement would result in the deportation of many people whose lives genuinely are in jeopardy': Bolanos-Hernandez v INS, 767 F 2d 1277 at 1285 (US Court of Appeals, 9th Cir, 1984); 'unrefuted and credible testimony alone is perfectly adequate to satisfy the applicant's burden of proof of a threat': Matter of H, BIA Interim Decision 3276 (1996). The Supreme Court of Spain found that asylum seekers needed only to establish a prima facie case, given the obvious difficulties of gathering evidence from countries in turmoil: decision 2403/88, abstracted as IJRL/0095 in IJRL 4 [1991] 759 at 760. See also Ladha v Immigration and Naturalization Service (No 98–70772) (9th Cir, 2000, following several other authorities): 'the law we must follow is already set out for us: "this court does not require corroborative evidence", Cordon-Garcia v INS 204 F 3d 985 at 992 (9th Cir, 2000), from applicants for asylum and withholding of deportation who have testified credibly. 'This court recognizes the serious difficulty with which asylum applicants are faced in their attempts to prove persecution, and has adjusted the evidentiary requirements accordingly.' Cordon-Garcia at 992–93 (citation omitted). Moreover, as we have noted, '[t]hat … objective facts are established through credible and persuasive testimony of the applicant does not make those fears less objective'. Aguilera-Cota v INS 914 F 2d 1375 at 1378 (9th Cir, 1990) (quoting Bolanos-Hernandez v INS 767 F 2d 1277 at 1285 (9th Cir, 1985) (internal quotation marks omitted)). The rule established in the BIA's cases, and applied to the Ladhas, is unequivocally contrary to the rule in this circuit … We reaffirm that an alien's testimony, if unrefuted and credible, direct and specific, is sufficient to establish the facts testified without the need for any corroboration. To the extent that decisions such as Matter of S-M-J and Matter of M-D establish a corroboration requirement for credible testimony, they are disapproved.'

[238] 'The last thing a victim may want to do is to carry around a threatening note with him. Doing so could cause extended detention, questioning or even torture or death, whichever side happened by chance to stop and search him': Reinhardt J in Aguilera-Cota v INS 914 F 2d 1375 (US Court of Appeals, 9th Cir, 1990). The New Zealand Court of Appeal in Jiao v Refugee Status Appeals Authority [2003] NZAR 647 (CA) spoke of the need for a 'generous approach' to refugee determination. Any other approach would leave the decision vulnerable to challenge: '[32] Were a decision-maker to deny the particular difficulties of refugee claimants and to insist on proof that it was impossible for the applicant to provide there might well be an argument that the decision-making process was fundamentally flawed, and that it did not meet the obligations of States in respect of that process, implicit in the Convention, especially given its vital humanitarian purpose.'

[239] Kasolo (13190; 1 April 1996).

[240] Aka (14375; 30 December 1996).

[241] Thus it would be unrealistic to infer from what was a summary of the worst human rights abuses that it was exhaustive as to all who were in any way mistreated: Chaka (11718; 30 December 1994); Tiako (12206; 6 June 1996). The Tribunal in Sherpa [2002] UKIAT 02340 (4 July 2002, overturning the decision of an adjudicator based on the lack of reports of a demonstration): '… what does concern us is that the objective evidence relating to the suppression of information, in particular anything indicative of action against the Chinese government, might have led to the possibility that no record of this demonstration was allowed to reach the outside world.' Some of the dangers of the approach are set out in Chen v Canada (Minister for Citizenship and Immigration) 2001 FCT 1312.

[242] UNHCR Handbook, para 196. Respected academic commentators emphasise its message: Professor Guy Goodwin-Gill writes in The Refugee in International Law (1991): 'If the applicant's statements in regard to his or her fear are consistent and credible, then little more can be required in the way of formal proof' (p 40). A Grahl-Madsen The Status of Refugees in International Law (1966) pp 145-146, addressing the issue of proof of refugeehood, observes: 'In one respect, however, a liberal attitude is called for outright, in order that full effect may be given to the provisions of the Refugee Convention and the purposes for which they are intended: it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations. He may have left his country without any papers, there may be nobody around who may testify to support his story, and other means of corroboration may be unavailable. It would go counter to the principle of good faith if a contracting State should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with', quoted with approval by Beaumont J in the Federal Court of Australia in Randhawa v Minister for Immigration. What evidence is available to the asylum seeker should not be lightly dismissed as 'self-serving', see the discussion in Chapter 16, para 16.77 n 6.

[243] Majewski (00/TH/01696; 18 July 2000). The Tribunal added that there were obvious and understandable reasons why a victim of rape might be reluctant to seek medical attention or go to the authorities in their country of origin and was careful to restrict the ambit of their comments to cases where such attention had in fact been sought. The Tribunal acknowledged that it must be doubtful whether this approach was apposite where the asylum claim involved a fear of the authorities. The Tribunal in ST (Corroboration, Kasolo) Ethiopia [2004] UKIAT 00119 (27 May 2004): '15. The fact that corroboration is not required does not mean that an Adjudicator is required to leave out of account the absence of documentary evidence which might reasonably be expected.' In Shanjarfi [2002] UKIAT 02923 (22 July 2002) the Tribunal noted that there is a significant difference between unpublished material, such as documents produced by an independent opposition political group on a home computer, where it must be a question of fact in the individual case whether it could reasonably be produced; and newspaper articles, which adjudicators are well entitled to assume could normally be produced on request from the paper's own archives, where it is still being published.

[244] 'The word "demeanour" used of a witness is generally taken to apply to the manner in which he answers questions, the speed with which he does so; any hesitancy in answering or inflection or shyness, any vagueness or anger, whether genuine or assimilated, are matters capable of giving rise to an impression of honesty or reliability': Beldam LJ in R v Secretary of State for the Home Department, ex p Paca (FC3 98/7339/4; 4 March 1999).

[245] Hanif (G0089; 19 May 1999). '[N]ot only is the skill level of an interpreter a significant factor, but the political and psychological dynamics which flow from the introduction of a third party into the asylum hearing may be relevant in assessing the record': concurring judgment in Matter of SMJ, Interim Decision 3303 (BIA 1997).

[246] Daniel (13623; 2 July 1996). Webster J in R v Secretary of State for the Home Department, ex p Patel [1986] Imm AR 208: 'it is not always easy to assess the credibility of a witness of one's own nationality who speaks one's own language; and what is not always easy to assess when the witness speaks one's own language becomes increasingly more difficult as more obstacles are introduced into the communication between Court and witness.' B (DR Congo) [2003] UKIAT 00012 (12 June 2003): 'The Adjudicator also disbelieved the appellant's evidence about how the article came to be published because he was "hesitant". Again such a description is far from satisfactory without more. One can be hesitant for perfectly bona fide reasons and one can be perceived to be hesitant for a number of bad reasons. As hesitancy is so closely linked to demeanour and judging demeanour across cultural divides is fraught with danger, the less it is used to disbelieve a person, the less likely is the chance of being criticised for unfair judgment.'

[247] Neuberger LJ in the Court of Appeal in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 (20 July 2006): 'The issue also has to be determined bearing in mind the overall picture including reasons which a tribunal would have had, but which were not expressed. An example would be the impression made by a witness (a factor which is not, in my view, high in the hierarchy of cogency, especially in an asylum case which will normally involve an appellant from a very different cultural background from that of the Tribunal).' See the President of the Tribunal in MM (DRC – plausibility) Democratic Republic of Congo [2005] UKIAT 00019 (27 January 2005) at [18].

[248] Per Reed J in the Federal Court of Canada in Shaker v Canada (Minister for Citizenship and Immigration) (IMM–3448–98; 30 June 1999): 'It is not immediately obvious why one should expect the applicant to become emotional when describing the beating, so long after the event. Individuals vary greatly as to the degree of emotion they show when describing such events – why is she assumed to be a person who would react emotionally? Insofar as the conclusion that the events are a falsification, there is medical evidence that she did suffer the injuries she described.' 'One of the consequences of torture is a difficulty with moods and emotions. Survivors feel that they must be kept on a tight rein; they do not trust themselves not to explode all over the place. This can lead to a certain blankness or rigidity and detachment. Emotions that are kept at bay like this are anger, despair, terror. Not many people like to be exposed as unable to control themselves, yet the very act of self-control can be construed as suspicious, contrived or rehearsed.' Dr Gill Hinshelwood of the Medical Foundation in her UNHCR Symposium paper, Interviewing Female Asylum Seekers (UNHCR Division of International Protection) [1997] IJRL Special Issue 159, at 162. The Tribunal in M (Yugoslavia) [2003] UKIAT 00004 (29 May 2003): 'Given the adjudicator's apparent awareness of the medical evidence that the appellant suffered from Post Traumatic Stress Disorder one of whose symptoms is emotional numbness, we do not think the adjudicator was justified in counting against the appellant at para 26 his failure at the hearing to "show emotional distress when the traumatic events were raised"…' See para 2.24 n 4 above, Sedley LJ in the Court of Appeal in Mazrae v Secretary of State for the Home Department [2004] EWCA Civ 1235.

[249] Cited by Goldring LJ in the Court of Appeal in S & Ors v Secretary of State for the Home Department [2009] EWCA Civ 142 (25 February 2009).

[250] Laws LJ refusing permission to appeal in the Court of Appeal in Elmi v Secretary of State for the Home Department [2006] EWCA Civ 1431: '10.As regards the anonymous report, I am not persuaded that the immigration judge was legally obliged to disregard it, though clearly great care had to be taken if any reliance was to be placed on it.' The Tribunal in FS (Treatment of Expert Evidence) Somalia [2009] UKAIT 00004 (12 January 2009), upholding an Immigration Judge who had found in an Appellant's favour notwithstanding the fact that both language analysis and country of origin expert had found against their claim: '36 … Whilst no judicial fact-finder can reject an expert report in a peremptory and dismissive manner, where cogent reasons exist for such rejection, they must be considered in the light of all the evidence. 37. I find that in this particular appeal the Immigration Judge gave an explanation for preferring the appellant's evidence over the expert reports which he subjected to close analysis.' Mansfield J in the Federal Court of Australia in Hussain v Minister for Immigration & Multicultural Affairs [2002] FCA 793 (3 July 2002): '31 It is of course impossible for a person in the applicant's position to contradict or test such assertions, as the identity of the analyst is provided only by a coded number. The analyst's name remains undisclosed. The analyst cannot be cross-examined. There are sometimes observations in an analyst's report provided by that entity which, as the Tribunal as differently constituted from time to time has remarked, indicate the analyst has in some measure gone beyond that which qualifications as a linguist might entitle that analyst to observe. There are occasions where other information has led to the Tribunal attributing no weight to the particular language analysis. In some instances, as the applicant's migration agent has submitted, those occasions have included circumstances where there is proximity between the province in Afghanistan in which an applicant for a protection visa lives and the Pakistan border, particularly where there has been evidence of movement across that border and exposure to persons from Pakistan in the particular applicant's region. The Tribunal has apparently had regard to all those considerations so far as they are applicable in the present matter in deciding to attribute significant weight to the language analysis report in this instance.'

[251] Eades, Diana, Helen Fraser, Jeff Siegel, Tim McNamara and Brett Baker 2003. Linguistic identification in the determination of nationality: A preliminary report. Language Policy 2(2): 179–199, concluded that, after a study of 58 cases reviewed and decided by the Refugee Review Tribunal (RRT) between 2000–2002, of the 58 cases examined using language analysis, 48 contradicted the applicants' claims, that 35 of the 48 cases (72%) were reversed on appeal, thus indicating that language analysis as performed is "clearly NOT determinative of nationality", and that the language analysis performed was invalid in method, and based on folk views about language rather than sound linguistic principles. They found that members of the RRT themselves raised doubts about the method. See also Diana Eades' article in Applied Linguistics 2005 26(4):503 (Oxford University Press, 2005): Applied Linguistics and Language Analysis in Asylum Seeker Cases, whose abstract states 'In order to test nationality claims of asylum seekers, a number of governments are using 'language analysis', based on the assumption that the way that a person speaks contains clues about their origins. While linguists would not dispute this assumption, they are disputing a number of other assumptions, as well as practices, involved in this form of linguistic identification.' On 11 July 2003, the UK Refugee Council said: 'We would be extremely concerned if the Home Office uses these controversial tests as a key indicator to decide an asylum seeker's nationality … [There are] real practical concerns about how reliable the results are likely to be.' See also Linguistic Human Rights: A Sociolinguistic Introduction (Language Analysis and National Origin In Refugee/Asylum Cases) by Prof Peter L Patrick, Dept. of Language and Linguistics, University of Essex.

[252] The Tribunal in AJH (Minority group, Swahili Speakers) Somalia CG [2003] UKIAT 00094 (3 October 2003): '33. What is needed therefore in cases in which claims to be Somali nationals of Bajuni clan identity are made is first of all: (1) an assessment which examines at least three different factors: (a) knowledge of Kibajuni, (b) knowledge of Somali varying depending on the person's personal history; and (c) knowledge of matters to do with life in Somalia for Bajuni (geography, customs, occupations etc). But what is also needed is; (2) an assessment which does not treat any one of these three factors as decisive: as the Tribunal noted in Mohamed Ali Omar [2002] UKIAT 06844, it is even possible albeit unusual that a person who does not speak Kibajuni or Somali could still be a Bajuni.'

[253] Murphy CLJ in the United States Court of Appeals for the Tenth Circuit in Razkane v Holder (No 08–9519; 21 April 2009): 'the IJ relied on his own views of what would identify an individual as a homosexual rather than any evidence presented. Specifically, the IJ found there was nothing in Razkane's appearance that would designate him as being gay because he did not 'dress in an effeminate manner or affect any effeminate mannerisms'. … The Second Circuit recently addressed the propriety of similar findings and comments by an IJ. Ali v Mukasey 529 F 3d 478, 485, 491–92 (2nd Cir, 2008). In Ali, the petitioner sought relief pursuant to the CAT based on his fear that he would be tortured because of his sexual orientation if he was returned to Guyana. Id. at 484. The court stated the IJ's comment that the 'common understanding … would suggest that violent dangerous criminals and feminine contemptible homosexuals are not usually considered to be the same people' reflected 'stereotypes about homosexual orientation and the way in which homosexuals are perceived'. Id. at 491. This, along with a further remark by the IJ that 'no one would perceive [the petitioner] as a homosexual unless he had a partner or cooperating person[,]' demonstrated the IJ 'clearly abrogated his responsibility to function as a neutral, impartial arbiter'. Id. at 491–92 (quotations omitted). The court concluded the IJ's comments reflected 'an impermissible reliance on preconceived assumptions about homosexuality and homosexuals', which along with other negative comments about the petitioner, 'result[ed] in the appearance of bias or hostility such that [the court could not] conduct a meaningful review of the decision below'. Id. at 492 (quotation omitted). Similarly, the Eighth Circuit reversed the denial of an application for asylum and restriction on removal that was based in part on 'the IJ's personal and improper opinion that [the applicant] did not dress or speak like or exhibit the mannerisms of a homosexual'. Shahinaj v Gonzales, 481 F 3d 1027, 1029 (8th Cir, 2007) … To condone this style of judging, unhinged from the prerequisite of substantial evidence, would inevitably lead to unpredictable, inconsistent, and unreviewable results. The fair adjudication of a claim for restriction on removal is dependent on a system grounded in the requirement of substantial evidence and free from vagaries flowing from notions of the assigned IJ. Such stereotyping would not be tolerated in other contexts, such as race or religion. See, eg, Cosa v Mukasey, 543 F.3d 1066, 1069 (9th Cir, 2008) (reversing adverse credibility finding because it improperly 'stemmed from pure speculation about how a [member of the petitioner's religion] might look and act'; Huang v Gonzales, 403 F 3d 945, 949 (7th Cir, 2005) ('[The IJ's] personal beliefs or some perceived common knowledge about the religion … [are … not a proper basis for an adverse credibility finding.'). Nor will it be tolerated in the case of a homosexual applicant seeking restriction on removal. See Ali, 529 F 3d at 492; Shahinaj, 481 F 3d at 1029. As a consequence, remand is necessary so that all findings are based on evidence and subject to meaningful review.'

[254] Goldring LJ in the Court of Appeal in NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856 (5 August 2009): '24. The appellant has now been in a series of exclusively lesbian sexual relationships over some four years. That is on its face cogent evidence that she is a lesbian, or predominantly a lesbian, by sexual identity. What might have begun as sexual experimentation with lesbianism could have ended with it being her sole or predominant sexual orientation.'

[255] UNHCR Handbook para 37.

[256] Doubtless subject to whether or not there is any challenge to the credibility of the claimant.

[257] Ali (17300; 19 June 1998).

[258] See para 2.31 especially n 1 above.

[259] UNHCR Handbook para 40.

[260] Ali (17300; 19 June 1998).

[261] Asuming (11530; 11 November 1994). The Board of Immigration Appeals in Matter of Acosta Interim Decision 2986 (1 March 1985) considered it necessary that the primary motivation of an applicant requesting refuge in the United States to be '"fear," ie a genuine apprehension or awareness of danger in another country,' adopting the definition from Webster's Third New International Dictionary 831 (16th edn, 1971). Noting the anomalies that would result were legal obligations of an international character to be interpreted so as persons facing similar measures of harm would receive differential protection, Professor Hathaway wrote: 'The use of the term "fear" was intended to emphasize the forward-looking nature of the test, and not to ground refugee status in an assessment of the refugee claimant's state of mind … it is not accurate to speak of the Convention definition as containing both a subjective and an objective element: it is rather an objective test to be administered in the context of present or prospective risk for the claimant'; endorsed in Re C, Refugee Status Appeals Authority Refugee Appeal No 70366/96. See further the Australian approach: 'Clearly there are subjective and objective considerations in the application of the definition to the facts. While as a matter of convenience it is useful to distinguish between the two ingredients, it can lead to error to regard them as separate and independent elements which can be considered in isolation. If fear exists, the issue whether fear is well-founded cannot be divorced from the fear itself; it is in relation to the fear that the issue of "well-founded" must be decided …': Benipal v Minister of Foreign Affairs (Chilwell J, High Court Auckland, A. No 878/83, 29 November 1985 at 228), an observation thought worthy of note by the Tribunal in Yang (13952; 15 October 1996). The New Zealand Refugee Status Appeals Authority in Refugee Appeal No 72668/01 (5 April 2002): 'We have from the outset been of the view that the Sivakumaran decision should be followed in New Zealand on the issue of the objective component of the refugee definition. We have been fortified in this view by the fact that the primacy of the objective element has also been recognized by the Supreme Court of the United States in Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 434 and by the High Court of Australia in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Our view has been strengthened by the fact that Professor Hathaway himself has recently pointed out that the Convention does not require consideration of the applicant's subjective mental state, an opinion he reinforces by reference to the French language text of the Convention (the English and French texts being equally authentic). See James C Hathaway and Anne K Cusick, "Refugee Rights are Not Negotiable" (2000) 14 Geo. Immigra. LJ 481, 521: 'There is no historical basis, however, for the assertion that investigation of a well-founded fear of persecution requires consideration of the applicant's subjective mental state. The better view is that, like the French language text, the word "fear" was used by the drafters of the Convention simply to denote a well-founded forward-looking assessment of risk. The test is therefore fundamentally objective' [Emphasis in original text]."' Refugee Appeal No 72635/01 (6 September 2002): 'The term "fear" is here used in the sense of "anticipation", not in the sense of "trembling in one's boots".'

[262] Matinkima (14426; 24 December 1996); see also Ben-Guerba (12464; 23 August 1995), Guine (13868; 9 September 1996). Though see the retraction from Guine para 2.6 n 1 above. See also Chapter 7 and failed asylum seekers.

[264] The era of Country Guidance has introduced something by way of factual precedent, see Chapter 17, paras 17.47 onwards. Contrast the earlier approach of the Tribunal: The President in Kulet (00/TH/00391; 28 April 2000): 'We would like to make it clear, largely because there is too great a tendency to cite decisions of the Tribunal in cases such as this as precedents, that this is not a precedent. This is a case which is decided, as so many are, purely on its own facts'. Cases such as Hayser [2002] UKIAT 07083 (6 March 2003) provide an early example of the Tribunal identifying factors enhancing risk for a particular asylum seeker.

[265] Lord Mustill in T v Secretary of State for the Home Department Imm AR 443 at 466: 'consistency of decision-making must surely be essential in a jurisdiction in this kind.' See generally para 17.44.

[266] Toulson LJ in the Court of Appeal in OD (Ivory Coast) v Secretary of State for the Home Department [2008] EWCA Civ 1299 (7 November 2008): 'Decisions in country guidance cases are authoritative, but the language used by the AIT in GG is not to be construed as if it were a statute. In any organisation activists may operate at different levels. The AIT has indicated that a member of an oppositionist party would not ordinarily face a real risk of persecution or serious ill-treatment on return to the Ivory Coast. The position may well be different if a person is an activist, but that is not the same thing as saying that it will necessarily be different. Whether such a person is at real risk of persecution or serious ill-treatment is a matter for the immigration judge to assess on the evidence, which would include taking into account the extent of his activism, ie what he did for the organisation. To label a person an activist is not the end of the inquiry. The task of the immigration judge is not a simple tick box exercise. It should involve making an assessment of risk on the full evidence before the tribunal; that is why we have experienced immigration judges.' Gummow and Hayne JJ in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71: 'Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made'. Potter LJ in the Court of Appeal in R v Immigration Appeal Tribunal, ex p Ozcan [2002] EWCA Civ 1133 at [22]: 'I should not by this decision be taken to suggest that it is necessary or even desirable for the IAT to create defined categories of those Turkish or Kurdish refugees who should be considered "vulnerable" or "not vulnerable" upon their return. It is clear from the material provided that treatment of individuals who are, or may be, suspected on their return of being political activists or past activists is uneven. What is important is that, as indicated in the CIPU report, each case falls to be considered on an individual basis rather than on the basis of categorisation.' Munby J in the Administrative Court in R (Martin) v Secretary of State for the Home Department [2006] EWHC 799 (Admin) (24 February 2006): '17. First, it enabled the Tribunal to identify categories of persons who were at particular risk. Those categories, of course, are not exclusive. Cases of this sort are not to be determined by whether or not the particular claimant can be pigeonholed in some predetermined classification system. Cases have to be decided upon their own specific facts and the significance of Mitting J's decision in Sinnarasa is indeed to demonstrate that there may be cases which cannot properly be certified, even though they fall outside the PS categorisation. The fact that the claimant in this case does not fall within the PS categorisation is relevant and may be significant but it is certainly not determinative.' Young J in the Federal Court of Australia in MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497: 'There is to my mind a degree of artificiality or stereotyping about the process of categorising an applicant as either "high-profile" or "low-profile". This process carries with it a risk of obscuring the fundamental question that the Tribunal is required to consider, namely whether an applicant has a well-founded fear of persecution for a Convention reason. In NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at 38 [161], Hayne and Heydon JJ said that the risks of classification are acute: 'Putting an applicant in one class rather than in another may determine the outcomes of the inquiry; the defining characteristics of the class that is chosen may eliminate from consideration matters that bear upon the chances of the applicant being persecuted'." McHugh J in the High Court of Australia in NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1; (2005) 79 ALJR 1142 (26 May 2005): '13 … evidence failed to show that Christians in Iran are subdivided into "proselytising Christians" and "quietly evangelising Christians". Even more importantly it failed to show that the Iranian authorities recognised any such distinction. … 27. Dividing applicants for refugee status who fall into social groups, religious sects, nationality or races into sub-categories is a dangerous course. It is dangerous because it has a tendency to assess the applicant's claim by reference to stereotypes instead of the applicant's characteristics and circumstances.' A decision maker should be especially slow to conclude that persecution cannot arise in a particular country, see Lord Phillips for the Court of Appeal in ZL and VL v Secretary of State for the Home Department and Lord Chancellors Department [2002] EWCA Civ 25: 'Even if, in general, the Czech Republic affords sufficient protection, there must remain a possibility of localised persecution in circumstances where there may be arguments against relocation and, as Collins J observed, there is always the possibility that the position in the Czech Republic may change.' See also paras 2.43 n 4, 17.49 n 5 and 17.44 n 2.

[267] Lord Templeman in Musisi [1987] Imm AR 250 at 269. The ECJ in Salahadin Abdulla (Area of Freedom, Security and Justice) [2010] EUECJ C-175/08 (02 March 2010): '[89] At both of those stages of the examination, the assessment relates to the same question of whether or not the established circumstances constitute such a threat that the person concerned may reasonably fear, in the light of his individual situation, that he will in fact be subjected to acts of persecution. [90] That assessment of the extent of the risk must, in all cases, be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the Union.'

[268] Musisi [1987] Imm AR 250 at 263, per Lord Bridge. The European Court of Human Rights in RC v Sweden (41827/07; 9 March 2010) [2010] ECHR 307: 'In principle, the applicant has to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v Finland, no. 38885/02, § 167, 26 July 2005 and NA. v the United Kingdom, no. 25904/07, § 111, 17 July 2008). Where such evidence is adduced, it is for the Government to dispel any doubts about it.'

[269] Buxton LJ in Sivakumar v Secretary of State for the Home Department [2001] EWCA Civ 1196, who continued: 'That degree of scrutiny is called for to a heightened degree in a case such as this where it is accepted that the appellant has been tortured for alleged involvement in political crimes.' See also Ozer (12233; 23 June 1995): wherein the warning is given that it is important that those charged with deciding issues of refugee status determination must not only set out the relevant principles, but actually apply them, and do so in a liberal manner.

[270] Horvath v Secretary of State for the Home Department [2001] 1 AC 489; see further the UNHCR Handbook para 43: 'What, for example, happened to his friends and relatives and other members of the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecution is well-founded. The laws of the country of origin, and particularly the manner in which they are applied, will be relevant. The situation of each person must, however, be assessed on its own merits. In the case of a well-known personality, the possibility of persecution may be greater than in the case of a person in obscurity. All these factors, eg a person's character, his background, his influence, his wealth or his outspokenness, may lead to the conclusion that his fear of persecution is "well-founded".'

[271] Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271.

[272] The Tribunal in Hassen (15558; 3 October 1997); see further the Full Court of the Federal Court of Australia in Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223, 254 (FC:FC) (Black CJ, Lockhart and Sheppard JJ). See also para 16.92, esp n 5.

[273] Sir Anthony Clarke MR giving the joint judgment of the Court of Appeal in MT (Algeria) & Ors v Secretary of State for the Home Department [2007] EWCA Civ 808 (30 July 2007) [2008] 2 All ER 786: '[174] We agree that it does appear that SIAC considered these matters separately and we also agree that the correct approach is to consider the cumulative effect of the evidence. The Chahal test is whether there are substantial reasons for believing that there is a real risk of torture or inhuman or degrading treatment or punishment – all taken together.' Gray J in the Federal Court of Australia in Sein v Minister for Immigration and Multicultural Affairs [2001] FCA 1579 (9 November 2001): '22 In the present case, the Tribunal identified a wrong issue and asked itself a wrong question, when it treated the applicant's case as being capable of resolution piece by piece, without considering the interaction of its various elements.' Teitelbaum J in the Federal Court of Canada in Gorzsas v Canada (Citizenship and Immigration), 2009 FC 458 (CanLII): '[36] Findings of the cumulative effects of discrimination require an analysis beyond a bare acknowledgement that the individual had these risk factors. It requires canvassing specifically in this case, what risks would face a gay, HIV positive Roma returning to Hungary. This type of analysis is different than analyzing singly what risks faces a gay man, then a HIV positive person, and then a Roma person which is what was done by the officer. I agree with the applicant that the officer's reasons fail to address the "intersectionalities of the evidence and failed to treat the applicant as a sum of his parts".'

[274] The Immigration Rules r 339J(i); Council Directive 2004/83/EC of 29 April 2004 Art 4(3)(a).

[275] The Immigration Rules r 339J(ii); Council Directive 2004/83/EC of 29 April 2004 Art 4(3)(b).

[276] The Immigration Rules r 339J(iii); Council Directive 2004/83/EC of 29 April 2004 Art 4(3)(c).

[277] The Immigration Rules r 339J(iv); Council Directive 2004/83/EC of 29 April 2004 Art 4(3)(d). See Chapter 7 on 'sur place' claims.

[278] The Immigration Rules r 339J(v); Council Directive 2004/83/EC of 29 April 2004 Art 4(3)(e).

[279] HC 395 r. 339JA, transposing Art 8(2)(b) of Council Directive 2005/85/EC of 1 December 2005: though in fact the Directive requires the information be 'precise'.

[280] Sir John Donaldson, as cited in R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147 at 150.

[281] R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147 at 158, per Lord Goff.

[282] R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147 at 150, per Lord Keith.

[283] Lord MacMillan in Jones v Great Western Railway Co (1930) 47 TLR 39 at 45, HL, cited in the context of refugee determination by the Refugee Status Appeals Authority of New Zealand in Refugee Appeal No 29/91 Re SK (17 February 1992) at 21; and by MacGuigan JA in MEI v Satiacum, Robert (FCA, No A–554–87) 16 June 1989. Pregerson J in the US Court of Appeals in Chanchavac v Immigration and Naturalization Service (No 88–71195) (9th Cir, 2000): 'The INS concedes in its brief that the Guatemalan military imputed guerrilla sympathies to Chanchavac, but it hypothesises that "Chanchavac's own refusal to fulfill a [military] service obligation may have been the catalyst" for the beating. There is absolutely no evidence that the military's motive for beating him was to punish him for not joining their ranks and it would be improper for us to speculate about this possibility. See Del Valle, 776 F2d at 1413 (conclusions must be based on substantial evidence, not conjecture).'

[284] 'Yet the whole exercise, involving as it does the assessment of a real chance, must be a speculative one': Wu v The Minister (Full Court of Australia (unreported: 23 June 1995)) cited by Sundberg J in Rith v MIEA (VG 4 of 1993; VG 618, VG 619 and VG 620 of 1995 FED No 699/95). 'Because the future can never be told with certainty, particularly perhaps in the variable and sometimes unpredictable matter of persecution, this Court endorsed a test which both permits and requires rational speculation and denies the necessity of the proof of affirmative certainty': Kirby J in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo [1997] 144 ALR 567. Carnwath LJ in the Court of Appeal in De Sousa v Secretary of State for the Home Department [2006] EWCA Civ 183 (6 February 2006): '11. On the facts, which the adjudicator accepted, the father was involved with political activity and people came to the house for that purpose. One has to bear in mind that this was a girl, at the time, of 16 only, and that she has since lost her mother and her father in tragic circumstances, and also that she was not someone who apparently was closely involved in politics herself. It seems to me that the adjudicator in those circumstances should have looked at her evidence against the background material and formed a view whether his involvement with political activity was at least "reasonably likely" to have been with FLEC (that being the appropriate test). The statement that "she simply assumes that he might have been because he held political meetings in his house" is understandable taken in the abstract, but taken against the background of an area where as far as we know the great majority of political activity was that of FLEC, the natural inference, applying the reasonable likelihood test, is that her father was so involved. The adjudicator seems to have turned the burden of proof against her. Similarly in relation to the people who took her mother away, taken in the abstract, and in other circumstances, the fact that people come to the house with guns and not in uniform may not suggest that they are necessarily police. But, against the background of conditions in the Cabinda Province as they are known to have been, and the evidence of relations between FLEC and the government forces, there seems little reason not to accept the applicant's assumption.' This was the approach of the Refugee Review Tribunal of Australia in one case: 'Not knowing who precisely had harmed Y and his wife, the Tribunal could not make any express findings on that. However, the Tribunal found that corruption was so widespread in government in Brazil that the harm done to Y and his wife was likely to represent government coercion against Y whose knowledge and actions were a danger to the operations of government instrumentalities such as the Police Force': this model application of legitimate rational speculation was vindicated by Davies J in the Federal Court of Australia in Minister for Immigration etc v Y and Minister for Immigration etc v Z, 15 May 1998. See also the US approach: Lynch CJ in Gailius v INS (23 July 1998, 1st Cir, US Court of Appeals No 97-2283) 'We have rejected any requirement that asylum applicants identify their persecutors when their fear is of clandestine groups. See Cordero-Trejo, 40 F 3d at 488 (applicant's failure to identify 'unknown armed men' or 'death squads' who threatened him was not a reasonable basis for doubting his credibility). Persecutors 'have [not] been given adequate notice that our government expects them to sign their names and reveal their individual identities when they deliver threatening messages'. Aguilera-Cota, 914 F 2d at 1380.' It did not require a great leap of faith to draw the conclusion that threats levied against a politically active person that increased around election time were politically motivated and were directed at the individual because of his politics: Marin (01/TH/00109; 30 April 2001). See also Pregerson CJ in the US 9th Circuit Court of Appeals in Canales-Vargas v Gonzales (No 03–71737; 21 March 2006): 'Critically, however, our case law does not require a victim of past persecution or an applicant fearing future persecution to marshal direct evidence of her persecutor's (or would-be persecutor's) identity or the precise reason why she has been (or would be) a target of persecution. … We find that the timing of the threats received by Canales-Vargas, which began two or three weeks after the April 1990 political rally at which she publicly criticized the Shining Path, are sufficient circumstantial evidence that the Shining Path was responsible for the threats and that its motive was to retaliate against Canales-Vargas for publicly criticizing it.' Weinberg J in the Federal Court of Australia in MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 (18 August 2006): '65. The husband's case was, of course, primarily circumstantial. He described a series of misfortunes that had befallen him, and invited the Tribunal to conclude that they formed part of a pattern. He did not claim that when he lost his job he was told, in terms, that it was because he was Jewish. Rather, he sought to have the Tribunal infer that, when considered in context, the decision to fire him had been influenced by anti-Semitism. The same, he argued, could be said of his experiences with the University, the Latvian State Conservatorium, the courts, and his experiences with his landlord. A glaring illustration of his ongoing difficulties was said to be the refusal of the Latvian authorities to recognise what was obvious, namely, that he had been a permanent resident of Latvia for his entire life. 66. In a sense, and without any intended deprecation, the husband's case can be subsumed within Oscar Wilde's famous aphorism that to lose one parent may be regarded as a misfortune, but to lose both looks like carelessness. 67. Such an approach to the drawing of inferences is hardly novel. Indeed, much of the law relating to inferences proceeds precisely upon reasoning of this type. In the particular case of similar fact evidence, there may be no basis for a conclusion that a single act, viewed in isolation, was done intentionally (and not accidentally). However, when that act is repeated the inference becomes powerful, and eventually (if repeated time and again), irresistible. 69. Nonetheless, when faced with a claim such as the present, which centres upon an allegation of long-standing and insidious anti-Semitism, and which the husband contended was still prevalent in Latvia, the Tribunal was bound to consider that claim. It had to consider each incident of alleged discrimination, not merely in isolation, but also in conjunction with the others. It had to consider the "totality of the case put forward": Khan v Minister for Immigration and Multicultural Affairs [2000] FCA 1478 per Katz J (at [31]), cited with apparent approval by Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 (VTAO) (at [62]). Rational speculation is not the same as pure speculation, however, in the sense of being conjecture or surmise: see eg the discussion in the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 72668/01 (5 April 2002).

[285] Karanakaran v Secretary of State for the Home Department (IAT; 00/TH/03086; 12 September 2000).

[286] Simon Brown LJ in Arif v Secretary of State for the Home Department [1999] Imm AR 271: 'To say that the justice system may now be corruptible, so that however strong the case was made to appear against him he may now nevertheless succeed on appeal, seems to me to leave far too much to chance.' Neuberger LJ in the Court of Appeal in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 (20 July 2006): '35. If HK said his surname was unusual, it was not open to the Tribunal to reject that evidence without any factual basis for so doing. The rejection of that part of HK's evidence was, as I see it, based on "conjecture or speculation", to quote Lord Brodie, and that is impermissible.'

[287] Internationally, the focus tends to be on the timing of the determination of the application rather than the time of the application itself. This approach was suggested in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (High Court of Australia), and confirmed as correct by the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Mohinder Singh [1997] 17 FCA (24 January 1997); the view is shared by the Refugee Status Appeals Authority of New Zealand in Appeal No 11/91, Re S, 10 July 1991. It prevails too in Canada (Salinas v Canada (Minister of Employment and Immigration) (1992) 93 DLR (4th) 631, a decision of the Federal Court of Appeal). Much of Europe operates similarly: H Lambert Seeking Asylum, Comparative Law and Practice in Selected European Countries (1995) pp 85–87 describing the systems of the United Kingdom, France, Sweden, Germany and Switzerland. Assessment of persecution at, and prospectively from, the date of determination is to be found also in United States decisions: see J C Hathaway Law of Refugee Status (1991) pp 75–83.

[288] Immigration and Asylum Act 1999, s 77(3); Nationality, Immigration and Asylum Act 2002, s 85(4).

[289] Simon Brown LJ in Ravichandran v Secretary of State for the Home Department [1997] Imm AR 96 at 112–113. See also the Full Court of the Federal Court of Australia in Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191 made it clear that the Convention tied the fear of persecution which had to be shown with the timing of the return: 'The fear is not a fear in the abstract, but a fear owing to which the applicant is unwilling to return, and thus it must exist at the time the question of return arises, namely at the time the decision is made whether the applicant is a refugee.'

[290] Simon Brown LJ, Ravichandran v Secretary of State for the Home Department [1997] Imm AR 96 at 112–113.

[291] S&K [2002] UKIAT 05613 (3 December 2002) (starred): '20 … It was said in Ravichandran that the appellate authority was an extension of the decision-making process. With that observation we must quarrel since it may seem to suggest that the appellate authority is somehow to be regarded as being part of the administrative process. It is not. It is an independent body hearing an appeal against a decision but bound to test that decision against facts found by it at the date of the hearing.'

[292] Simon Brown J in R v Immigration Appeal Tribunal, ex p B [1989] Imm AR 166 at 170, following R v Immigration Appeal Tribunal, ex p el Hassanin [1987] 1 All ER 74; contrast Belemet (13958; 2 October 1996).

[293] Immigration and Asylum Act 1999, s 69(3). Judgment of the Court of Appeal in Saad v Secretary of State for the Home Department [2001] EWCA Civ 2008 (19 December 2001): '66. In our judgment it is implicit in the test to be applied under Rule 334 that the Secretary of State should proceed on the assumption that the state of affairs prevailing at the time that he makes this decision will persist at the time that any limited leave to remain that has been granted expires. The Rules appear to envisage that any limited leave to remain is likely to be of short duration – hence the provision that on the grant of asylum, the Secretary of State will "vary the existing leave" (Rule 335). In such circumstances it will normally be natural to envisage that the existing state of affairs will persist. A similar assumption must be made where a longer period of exceptional leave to remain has been granted if the Rules are to be applied in a manner that is compatible with the Convention … 68 … Where an appellant who has been granted ELR satisfies the IAT that the Secretary of State was, and remains, wrong to deny him refugee status, the IAT must allow the appeal, if it is to avoid permitting a breach of the Convention to continue. The IAT will allow the appeal by proceeding on the hypothesis that, where the appellant has refugee status at the time of the appeal that state of affairs will subsist at the time that ELR comes to an end. We consider that this is the approach that the appellate tribunal should adopt. Thus, an appeal under section 8(2) will, just as in the case of appeals under the other three sub-sections, raise as the crucial issue the question of whether the appellant enjoys refugee status at the time of the hearing of the appeal.' A similar approach was adopted by the IAT in human rights cases, see S&K [2002] UKIAT 05613 (3 December 2002) (starred). Under the Nationality, Immigration and Asylum Act 2002, s 83(2) thereof a 'status' appeal is created: 'The person may appeal to an adjudicator against the rejection of his asylum claim.'

[294] Mendes (12183; 5 June 1995). For a model approach, see the Tribunal in Lucreteanu (12126; 15 May 1995), declining to equate threatening telephone calls in Securitate-dominated Romania with 'obscene telephone calls in this or other countries'. See further the authorities regarding plausibility and historical facts (paras 2.29, 2.30 above).

[295] Mendes (12183; 5 June 1995), citing the Canadian Immigration Appeal Board decision in Luis Enrique Tohaseguel 79-1150, CLIC. Sedley LJ in the Court of Appeal in CM (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 125 (6 February 2008): '5 … it was an erroneous finding because it was not one of the grounds of appeal and so not open to the senior immigration judge. But what seems to me just as strong a reason is that the senior immigration judge's reason for taking this view … is (with respect) a classic example of ethnocentric reasoning, dismissing the immigration judge's view that word-of-mouth information would sooner or later reveal the appellant's whereabouts to her husband on the ground that this would make such information: "capable of doing what the most sophisticated information gathering in the United Kingdom is incapable of doing" – a view supported by the senior immigration judge by reference to passenger lists and hospital records.'

[296] Parker LJ in Akdag v Secretary of State for the Home Department [1992] Imm AR 172 at 173. The Tribunal stated, in VL (Risk, Failed Asylum Seekers) Democratic Republic of Congo CG [2004] UKIAT 00007 (28 January 2004): '91 … However, insofar as the BIDS argument raises the general point that more active steps should have been taken by UK authorities to monitor returns, we would concur with the point made in the Tribunal determination in the case of S (Serbia and Montenegro – Kosovo) [2003] UKIAT 00031 that the Tribunal is bound by the principles set out in the House of Lords judgment in Abdi and Gawe [1996] 1 WLR 298 regarding disclosure of evidence within accelerated procedures. There is no duty on the Secretary of State to embark upon an investigation into evidence not in his hands for the preparation of country bulletins or reports, in order to assist appellants in making their cases.' And in RK (Obligation to Investigate) Democratic Republic of Congo [2004] UKIAT 00129 (7 June 2004): '46. Any other approach would amount to a reversal of the burden of proof or to a lowering of the standard of proof. This standard is already different from that applicable to the ascertainment of an actual breach of Article 3 through past acts. In practical terms this lower standard reflects the difficulties of proving the degree of future risk or the nature of the future risk which would be run, and the difficulties of proof and disproof of the allegations which, by their nature, underlie claims for protection under both Conventions. These appeals and the original decision which gives rise to them are not inquisitorial by nature, even though an obligation to co-operate and assist each other can be spelt out from the very circumstances in which protection is sought and offered. That leads to a mutually owed, two-way, obligation. It is not aptly described as an accusatorial system either. The lower standard of proof, and obligations of fair dealing and co-operation where one party is possessed alone of almost all the relevant personal knowledge and the other is better placed to deal with general country conditions, dictate together that this is a unique jurisdiction. Neither label is apt. The lower standard of proof best reflects that; but it should not be diluted further. The provision as to the burden of proof is specifically contained in the 2003 Rules, at Rule 49. 47. It is for the Claimant, to the lower standard, to prove her case. She cannot do so. She cannot then say that the material which she has produced suffices to require an investigation of her material which, if not carried out, itself demonstrates a breach of Article 3. If she can do so, then any claimant who cannot succeed, can argue that the material is nonetheless sufficient to require an investigation of claims which that claimant may make about himself or others and until then a breach is shown by the failure to investigate. That would either involve putting the burden of proof on the Secretary of State or permitting a lower standard of proof than is currently applied.' However, now European Community law requires that '(b) precise and up-to-date information is obtained from various sources, such as the United Nations High Commissioner for Refugees (UNHCR), 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, and that such information is made available to the personnel responsible for examining applications and taking decisions.' There is, besides, the duty of enquiry if Article 3 is to maintain its effectiveness, see Laws LJ in the Court of Appeal in Nasseri (R on the application of) v Secretary of State for the Home Department [2008] EWCA Civ 464: '18 … If the State is to avoid breach of Article 3 by removal of an individual to another territory where he might be ill treated or whence he might be sent elsewhere and ill treated there, the authorities of the first State plainly have to apprise themselves of the relevant law and practice of the place to which the removal will be effected. Otherwise they cannot know whether their actions will violate the ECHR or not. This is not a distinct, separate or adjectival duty, but a necessary incident of the substantive obligation to fulfil Article 3. It is underlined by the need of rigorous scrutiny where an individual claims that expulsion will expose him to Article 3 ill treatment.

[297] Mann J, cited by Neill LJ in Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department [1989] Imm AR 6 at 13. The Tribunal in A (Turkey) [2003] UKIAT 00034 (28 July 2003): '… one would hardly expect the Turkish government's representative to admit to ill treatment of its nationals on return'. Lord Hope in Januzi v Secretary of State for the Home Department & Ors [2006] UKHL 5 (15 February 2006); [2006] 2 AC 426; [2006] UKHL 5; [2006] 2 WLR 397 at [59]: 'Assurances provided by the Sudanese Government about conditions in the camps and voluntary returns of IDPs to their home areas are patently unreliable.'

[298] Thorpe LJ in Drrias v Secretary of State for the Home Department [1997] Imm AR 346 at 350; Mohamed (13465; 4 June 1996).

[299] The UN General Assembly resolution of 16 November 2005 "Torture and other cruel, inhuman or degrading treatment or punishment" (UN Doc.:A/C.3/60/L.25/Rev 1) reads as follows: 'The General Assembly … 8. Urges States not to expel, return ('refouler'), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement …'.

[300] In his interim report submitted in accordance with Assembly resolution 59/182 (UN Doc A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions: '51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or ill-treatment upon return. 52. The Special Rapporteur calls on Governments to observe the principle of non-refoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognized as refugees.' The Supreme Court of Canada in Suresh v Canada (Minister of Citizenship and Immigration), cited by the UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006: '… the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.' See also The European Committee for the Prevention of Torture's (the CPT) 15th General Report of 22 September 2005 on their activities covering the period from 1 August 2004 to 31 July 2005.

[301] The European Court of Human Rights in Ismoilov And Others v Russia – 2947/06 [2008] ECHR 348 (24 April 2008) [2008] ECHR 348 '127. Finally, the Court will examine the Government's argument that the assurances of humane treatment from the Uzbek authorities provided the applicants with an adequate guarantee of safety. In its judgment in the Chahal case the Court cautioned against reliance on diplomatic assurances against torture from a State where torture is endemic or persistent (see Chahal, cited above, para 105). In the recent case of Saadi v Italy, the Court also found that diplomatic assurances were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices resorted to or tolerated by the authorities which were manifestly contrary to the principles of the Convention (see Saadi, cited above, paras 147 and 148). Given that the practice of torture in Uzbekistan is described by reputable international experts as systematic … the Court is not persuaded that the assurances from the Uzbek authorities offered a reliable guarantee against the risk of ill-treatment.' The Strasbourg Court in Ryabikin v Russia (Application no. 8320/04; 19 June 2008) at [119]: 'In any event, even accepting that such assurances were given, the Court notes that the reports cited above noted that the authorities of Turkmenistan systematically refused access by international observers to the country, and in particular to places of detention. In such circumstances the Court is bound to question the value of the assurances that the applicant would not be subjected to torture, given that there appears to be no objective means of monitoring their fulfilment' (see also Daoudi v France (19576/08; 3 December 2009); and Muminov v Russia (Application no. 42502/06; 4 May 2009) at [97]. The Committee against Torture in Ahmed Hussein Mustafa Kamil Agiza v Sweden, Communication No. 233/2003, U.N Doc. CAT/C/34/D/233/2003 (2005): '13.4 The procurement of diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against this manifest risk.'

[302] Lord Phillips in the House of Lords in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 (18 February 2009): 'I do not consider that these decisions establish a principle that assurances must eliminate all risk of inhuman treatment before they can be relied upon. It is obvious that if a State seeks to rely on assurances that are given by a country with a record for disregarding fundamental human rights it will need to show that there is good reason to treat the assurances as providing a reliable guarantee that the depor tee will not be subjected to such treatment. If, however, after consideration of all the relevant circumstances of which assurances form part, there are no substantial grounds for believing that a deportee will be at real risk of inhuman treatment, there will be no basis for holding that dep ortation will violate article 3.' The Tribunal in FA (Eritrea, nationality) Eritrea CG [2005] UKIAT 00047 (18 February 2005): '23 … How much weight should be attached to statements by the government officials of a particular country will vary depending on a number of fact ors, including the extent to which the government in question complies or does not comply with international human rights guarantees.' The European Court of Human Rights in Saadi v Italy (Application no. 37201/06; 28 February 2008): '148. Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, 105). The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time.' Amnesty International, Dangerous Deals: Europe's Reliance on 'Diplomatic Assurances' against Torture (12 April 2010; EUR 01/012/2010): 'Given the absolute nature of the prohibition of torture under international law, its status as a crime under international law, and the stigma associated with its use, governments that practise torture routinely deny it; Deniability is made plausible by the routine failure of the state to investigate allegations of torture and bring those responsible to account, creating an environment of impunity for perpetrators; and by the fact that torture is usually practised in secret, with the collusion of law enforcement and other government personnel, including medical staff in some cases, and with the understanding that no one will be held accountable for the abuse; Persons subject to torture and other ill-treatment are often afraid to recount their abuse to their lawyers, family members, and monitors for fear of reprisals against them or their families; … Even when breaches are detected by the sending government, there is no evidence to support the notion that serious diplomatic consequences will result, and it has no means of ensuring a cessation of the breaches or effective protection of the individual; Attempts to forcibly return people in reliance on a bilaterally-negotiated diplomatic assurance covering transfers based on "security" or "terrorism" grounds may lead to some individuals being labelled as "terrorists" who may not have been so labelled by the receiving country in the past; the assurances themselves thus may put people at risk of ill-treatment on return.'

[303] Mehra (G0066; 11 December 1998). The Tribunal in A (Turkey) [2003] UKIAT 00034 (28 July 2003): 'The next point made by the Tribunal in Polat was that such statistics as there are do not indicate that mistreatment of returnees is a serious problem in quantitative terms. In this regard we find ourselves in agreement with the comment of Mr Grieves that it is important to bear in mind that if the state determining status outside Turkey has done its job properly, then the person being returned should not face a real risk of persecution or breach of their human rights. As a consequence one would not expect there to be many cases of ill treatment assuming that the process of determining their applications and appeals in the countries to which they had fled had been done properly.' Though the conclusions that can be drawn from evidence about ill-treatment of returnees depends on the quality of the evidence, see VL (Risk, Failed Asylum Seekers) Democratic Republic of Congo CG [2004] UKIAT 00007 (28 January 2004) [88].

[304] Abdelbaqi (13980; 7 October 1996).

[305] Nicholson J chairing the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 1/91 Re TLY and Refugee Appeal No 2/91 Re LAB; citing Re Inzunza and the Minister of Employment and Immigration (1979) 103 DLR (3d) 105 (Federal Court of Appeal), where Kelly J stated that the crucial test in this regard should not be whether the Board considers that the applicant engaged in political activities, but whether the ruling government of the country from which he claims to be a refugee considers his conduct to have been styled as political activity. In Jerez v Immigration Appeal Board (1981) 2 FC 527, 528 Pratte J in the Canadian Federal Court of Appeal appeared to approve the proposition that decision makers should 'not forget that an activity which might have no political significance to us, if it had taken place in Canada, may be seen by a foreign government as having such significance'. See also Chilwell J in Benipal v Minister of Foreign Affairs (High Court Auckland, A No 878/83, 29 November 1985) at 222–223.

[306] Blake J in the Administrative Court in Veerasingam v Secretary of State for the Home Department [2008] EWHC 3044 (Admin) (11 December 2008): '16 … As the Secretary of State notes in his decision letter this was not a short informal detention. In the absence of cogent evidence clearly establishing the contrary I would have great difficulty accepting the submission that it was unlikely to be recorded at the time. The Sri Lankan security forces have been engaged in a long struggle against terrorist insurgency in their country and there is no reason to believe that they would have completely failed to adopt what any similar security force would be likely to do in such circumstances which is to gather information and record it for future use in making assessments of those who may be members or supporters'

[307] Apat (15060; 16 May 1997); 'The fact that a person was dealt with lightly in the past does not guarantee the same treatment in the future, particularly after a repeated demonstration of nuisance status. A healthy injection of doubt must therefore be introduced. The places from which refugees normally flee rarely have legal or administrative systems that permit the rational and consistent application of logic which our courts like to boast of but sometimes themselves fail to provide': Kirby J in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo [1997] 144 ALR 567. Lee J in the Federal Court of Australia in Thevendram v Minister for Immigration and Multicultural Affairs [2000] FCA 1910 (21 December 2000): 'If a person, detained and interrogated in the cause of counter-terrorism is released without being charged with an offence, it does not follow that the interest of the authorities in that person ceased with the release from custody.'

[308] AY [Political Parties – SCP – Risk] Sudan CG [2008] UKAIT 00050 (16 May 2008): 'It is a mark of a repressive regime to maintain such files assiduously so that they can be used where necessary to provide evidence against those seen as opponents and more generally to create an atmosphere of intimidation. We agree, as Mr Verney said, that the aim is to keep people guessing and to maintain a climate of fear of potential consequences. In the light of the way that the reaction of the Sudanese authorities to opposition political activity fluctuates in accordance with political priorities and objectives at any given time including the need to respond to international pressure, it is impossible to give any hard and fast guidelines in circumstances where the government for political reasons sometimes takes no action and permits a degree of political activity to take place.' Hansen J in Valère v Canada (Minister for Citizenship and Immigration) in the Federal Court of Canada, having cited the conjecture/inference distinction in Jones v Great Western Railway Co (above at para 2.51 n 1: '[17] …. Although harm stems from opportunity and motive, it does not necessarily follow that an absence of harm in circumstances where opportunity exists equates to an absence of motive. While a lack of motive in these circumstances may be plausible, the fact the applicant remained unharmed for a period of three weeks is insufficient by itself to take the finding beyond mere conjecture.' Circuit Judge Paez in Marcos v Gonzales (US 9th Circuit Court of Appeals; 9th June 2005; Case Number: 02–73968): '[8] First, the IJ noted that the NPA had not followed through on any of its threats against Marcos. But, as we have held, "that none of the threats against Petitioner[ ] have yet to be carried out does not render [his] fear unreasonable." Kaiser v Ashcroft, 390 F.3d 653, 657 (9th Cir, 2004). Id. at 658. "What matters is whether the group making the threat has the will or ability to carry it out." Bolanos-Hernandez v INS, 767 F 2d 1277, 1285 (9th Cir, 1984) (cited in Kaiser, 390 F 3d at 658–659).' Scott Baker LJ in the Court of Appeal in Yapici v Secretary of State for the Home Department [2005] EWCA Civ 826 (6 July 2005): '2 … The adjudicator treats the appellant's release as evidence that the authorities had no further basis for detaining him. Whilst that may have been true at the moment at which he was released, why was he only conditionally at liberty? What was likely to happen when the authorities' enquiries were complete? And what was the effect of a HADEP sympathiser breaking the condition imposed by the authority? True it is a point in the respondent's favour that there was no evidence to show the appellant was being pursued on account of his breach of the reporting condition. But the authority's attitude may be rather different if his breach becomes apparent when he presents himself on return at Istanbul Airport. In my judgment the adjudicator ought to have considered these questions and decided what materiality they had, if any, to the risk to him on return.'

[309] New Zealand Refugee Status Appeals Authority in Refugee Appeal No 1/91 Re TLY (Refugee Appeal No 1/91 Re TLY and Refugee Appeal No 2/91 Re LAB (11 July 1991)). Sedley LJ in the Court of Appeal in Pisa v Secretary of State for the Home Department [2004] EWCA Civ 1443 (26 October 2004): '36. The other is that the objective evidence does not suggest that the "veterans" activities are logically ordered or directed. There is evidence that they are sporadic, arbitrary and indiscriminate. This may have a bearing on how far a negative past experience of them is a guide to future risk.' PM and Others (Kabul, Hizb-i-Islami) Afghanistan CG [2007] UKAIT 00089 (12 November 2007): '13 … We agree that, in logic, the fact that someone has not been found does not mean that he has not been looked for … 129 … Mr Jacobs was probably not unrealistic when he suggested that the actual numbers of people being mistreated will exceed the number of complaints by some margin.'

[310] Mongoua (15433; 23 October 1997). See by analogy evidence of the work of security services, Chapter 7, para 7.7 n 2.

[311] Schiemann LJ in Blansua v Secretary of State for the Home Department (IATRF 98/1495/4; 18 May 1998); cf Potts J in R v A Special Adjudicator, ex p Kojo Togbe (CO/633/95; unreported) noted that there was a requirement to investigate the possibility of refoulement in a third country rather than to focus exclusively on the theoretical legal protection.

[312] Abudu (13514; 4 June 1996).

[313] Ward LJ in Goussebo (IATRF 98/1062/4; 27 November 1998).

[314] Thus it was a material error for a decision maker to take into account a lack of interest in a person for the final months of his stay in his country when that matter was explained by his inability to carry out the actions which had formerly led to his fears of persecution: Owen J, in Hanif Ahmad (CO/664/98; 17 March 1999).

[315] New Zealand Refugee Status Appeals Authority in Appeal No 135/92, Re RS, 27 August 1991.

[316] UNHCR Handbook para 41. A failure to comprehend the political associations or persecution suffered by relatives may well lead to an unsafe decision: Kose (12640; 3 November 1995); Athisarasaya (13505; 4 June 1996). See para 3.20, regarding the consequences in law for the principal of persecution of members of their family.

[317] Mwangalalo-Muyengo (10363; 2 November 1993).

[318] New Zealand Refugee Status Appeals Authority in Refugee Appeal No 17/92 Re SSS (9 July 1992).

[319] Though most of the cases arise in the context of Article 3 ECHR, in fact their progenitor, MI Pakistan, was an appeal on Refugee Convention grounds.

[320] MI (Fair Trial, Pre Trial Conditions) Pakistan CG [2002] UKIAT 02239 (28 June 2002): '58. … It has been in use as a minimum international standard by the UN ever since the introduction in 1967 of Resolution 1235 authorising the Commission on Human Rights to "examine information relevant to gross violations of human rights" and to "make a thorough study of situations which reveal a consistent pattern of violations of human rights". Art 3 of the 1984 UN Convention Against Torture, which prohibits return of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture enjoins at para 2: "For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights". 59. Whilst not even under Article 3 of the Torture Convention has this standard been used on its own to establish risk of torture in the context of refoulement, the case law of the Committee Against Torture on Article 3 does confirm that, in the absence of personal risk, it is difficult for a person to show a breach of Article 3 unless the level of abuse of human rights in the country of return is at least as serious as that of "a consistent pattern of gross, flagrant or mass violations of human rights"; indeed even the existence of such a pattern may not be enough: see Kisoki v Sweden, Comm. No 41/1996, reported in Report of the Committee against Torture, UN GAOR 51st Sess., Supp. No 44 9.2, UN Doc A/51/44. Where, however, one has a situation in which it is accepted that a claimant would face prosecution and pre-trial detention, it would seem sufficient for him to establish a consistent pattern of gross, flagrant or mass occurrences of ill-treatment in detention. '60 … In the absence of evidence to show that such practices are gross or systematic it cannot be concluded, therefore, that there is a real risk to pre-trial detainees in general or to this appellant in particular'.

[321] The European Court of Human Rights in KHW v Germany 37201/97 [2001] ECHR 229 (22 March 2001): '36. By Resolution 1503, adopted in 1970, the United Nations Economic and Social Council put in place a procedure under which individuals could refer complaints to the Commission on Human Rights, which was charged with investigating whether these complaints revealed the existence of a "consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms". On account of its restrictive policy on the freedom of movement, the GDR was repeatedly criticised under the Resolution 1503 procedure for failure to comply with the general obligation to respect human rights enshrined in Arts 1 3, 55 and 56 of the United Nations Charter. Thus, in the years 1981 to 1983, the GDR appeared in the list of countries to be examined under the Resolution 1503 procedure, as more than fifty persons (the number required for it to be possible to speak of a "consistent pattern of gross violations") had complained to the Commission on Human Rights about the GDR's policy of holding its people captive.'

[322] Laws LJ, dismissing the appeal, in Hariri v Secretary of State for the Home Department [2003] EWCA Civ 807 (23 May 2003): '8 …The points concerning the appellant's individual circumstances had all fallen away. When it came to paragraph 10 of the IAT determination, his case depended entirely upon it being established that there was a real risk that he would suffer unlawful ill-treatment, as I have said, as a member of a class or perhaps two classes: draft evaders and those who had left the country without authority. In those circumstances, as it seems to me, the "real risk" – the conventional Sivakumaran standard – could not be established without its being shown that the general situation was one in which ill-treatment of the kind in question generally happened: hence the expression "gross and systematic". The point is one of logic. Absent evidence to show that the appellant was at risk because of his specific circumstances, there could be no real risk of relevant ill-treatment unless the situation to which the appellant would be returning was one in which such violence was generally or consistently happening. There is nothing else in the case that could generate a real risk. In this situation, then, a "consistent pattern of gross and systematic violation of fundamental human rights", far from being at variance with the real risk test is, in my judgment, a function or application of it.'

[323] Sedley LJ in the Court of Appeal in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489 (5 November 2003): '38. Great care needs to be taken with such epithets. They are intended to elucidate the jurisprudential concept of real risk, not to replace it. If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening. The exegetic language in Hariri suggests a higher threshold than the IAT's more cautious phrase in Iqbal "a consistent pattern", which the court in Hariri sought to endorse. 39. There is a danger, if Hariri is taken too literally, of assimilating risk to probability. A real risk is in language and in law something distinctly less than a probability, and it cannot be elevated by lexicographic stages into something more than it is.' This 'represent[ing] the unanimous view of the Court of Appeal as to what the law is', Munby J in Kpagni, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 881. See also GH (Former Kaz, Country Conditions, Effect) Iraq CG [2004] UKIAT 00248 (10 September 2004) para 45; AA (Involuntary Returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 (7 October 2005) [48]–[52].

[324] SH (Prison Conditions) Bangladesh CG [2008] UKAIT 00076 (13 October 2008) [24].

[325] May LJ giving the judgment of the Court of Appeal in AA (Zimbabwe) v Secretary of State for the Home Department [2007] EWCA Civ 149 (6 March 2007) [14], [22] approved this passage from the Tribunal's determination below: 'The Appellant does not need to show a certainty or a probability that all failed asylum seekers returned involuntarily will face serious ill-treatment upon return. He needs to show only that there is a consistent pattern of such mistreatment such that anyone returning in those circumstances faces a real risk of coming to harm even though not everyone does. So is there evidence pointing to a substantial number of cases in the context of general evidence showing that involuntarily returned failed asylum seekers are at a real risk of being subjected to serious ill-treatment on that account alone?" The search for a 'Consistent pattern' was disapproved by Sedley LJ in the Court of Appeal in QD and AH Iraq v Secretary of State for the Home Department [2009] EWCA Civ 620 (24 June 2009) as a technique for assessing 'indiscriminate violence'.

[326] The European Court of Human Rights in NA v UK, App No 25904/07 [2008] ECHR 616 judgment, 17 July 2008 paras 116–117: 'the Court has considered that the protection of Article 3 of the Convention enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned.'

[327] R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147 at 156; cf UNHCR Handbook para 37: 'Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgment on the situation prevailing in his country of origin.' Professor Guy Goodwin-Gill suggests that this form of words represented an intent to depolitise the assessment of status: The Refugee in International Law (1991) p 41, n 39. Arguing against the employment of the standards of the country of origin for the assessment of which conduct was persecutory, the Refugee Status Appeals Authority of New Zealand noted 'The disadvantage of a domestic standard is that it simultaneously allows too easily the intrusion of ideology and also the implication of censure of the state of origin': Appeal No 2039/93, Re MN (12 February 1996).

[328] R v Secretary of State for the Home Department, ex p Sivakumaran [1988] Imm AR 147.

[329] Appeal No 2039/93, Re MN (12 February 1996) at 159. See also Potter LJ in the Court of Appeal in Krotov v Secretary of State for the Home Department [2004] EWCA Civ 69 (11 February 2004) [42]–[44].

[330] Board of Immigration Appeals Interim Decision 3287 In re SP (June 1996), citing the Declaration on Territorial Asylum, General Assembly Resolution 2312 (XXII) 22 UN GAOR, Supp No 16, at 81, UN Document A/6716 (1967). See further the 9th Circuit of the US Court of Appeals in McMullen v Immigration and Naturalization Service 788 F 2d 591 at 596-597 (9th Cir, 1986): 'in contrast to extradition, deportation is a matter solely between the United States Government and the individual seeking withholding of deportation. No other sovereign is involved … Thus, we find ourselves unencumbered by the concerns we expressed in Quinn 783 F 2d at 804-805 (dicta), that we should be careful not to interfere with political processes in other cultures by extraditing individuals merely because they have committed acts that deeply offend civilized notions of decency and morality … When we deport an individual we are not "interfering with any internal struggle of another nation" …'. The Tribunal in Sivayogan (22437; 9 December 1999) rejected the notion that the grant of asylum by the receiving state indicated agreement with the political opinions of the refugee: nor, it added, does it amount in international law to an endorsement of his actions. Gummow J in the High Court of Australia in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 (16 November 2000): 'a State is free to admit anyone it chooses to admit, even at the risk of inviting the displeasure of another State'.

[331] Hale LJ in Salim v Secretary of State for the Home Department (IATRF 1999/0993/C; 14 April 2000): 'as a matter of general principle in any fact-finding exercise associated with risk, that those who have to assess future risk are greatly assisted by past events in making that assessment.'

[332] [1997] 144 ALR 567.

[333] Lord Lloyd in the House of Lords in R v Secretary of State for the Home Department, ex p Adan [1998] Imm AR 338, [1998] INLR 325 stressed that the language of Art 1(A)(2) was notably in the present tense throughout the paragraph, adding 'the point becomes even clearer when one looks at category (2), which includes a person who is (a) outside the country of his nationality owing to a well-founded fear of persecution and (b) is unwilling, owing to such fear, to avail himself of the protection of that country. "Owing to such fear" in (b) means owing to well-founded fear of being persecuted for a Convention reason. But "fear" in (b) can only refer to current fear, since the fear must be the cause of the asylum-seeker being unwilling now to avail himself of the protection of his country. If fear in (b) is confined to current fear, it would be odd if "owing to well-founded fear" in (a) were not also confined to current fear. The word must surely bear the same meaning in both halves of the sentence.' Rodger Haines in the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 70366/96 Re C (22 September 1997) found it telling that the UNHCR Statute clearly allowed for refugee status on the basis of past persecution, whilst recognition of such cases under the Refugee Convention could be found only in Art 1(A)(1). See also Von Doussa J in the Federal Court of Australia in SCAM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 964 (6 August 2002). In Rostas v The Refugee Appeals Tribunal (unreported), Gilligan J, High Court of Ireland, 31 July, 2003) it was held that: 'The test for persecution is a forward looking one, but past persecution may indicate a reasonable likelihood of present or prospective persecution unless there has been a major change in circumstances in the country of origin.'

[334] Lord Slynn in R v Secretary of State for the Home Department, ex p Adan [1998] Imm AR 338, [1998] INLR 325. The 9th Circuit of the US Court of Appeals has gone so far as to find that actual past persecution would be an answer to suggestions in the general country evidence that there was no risk of such a thing occurring: so in Singh v Ilchert 69 F 3d 375, 380 (9th Cir, 1995); as followed by Ferguson CJ in Shah v INS (No 98-70845; 15 August 2000) they 'found the DOS [Department of State] opinion to be irrelevant in cases where individuals have experienced actual persecution by the government.' Ferguson CJ added 'By the same token, it is not a "substantial, cogent reason" to discredit the petitioner's testimony of past persecution based on a report describing a general condition of peace in society.' Sharlow JA in the Federal Court of Appeal of Canada in Fernandopulle v Canada (Minister of Citizenship and Immigration) 2005 FCA 91 (8 March 2005): 'The second sentence of paragraph 45 of the Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status does not establish a presumption of law or a rebuttable presumption of law that must be applied in determining refugee claims under the Immigration and Refugee Protection Act. A person establishes a refugee claim by proving the existence of a well-founded fear of persecution for one of the reasons listed in section 96 of the Immigration and Refugee Protection Act. Proof of past persecution for one of the listed reasons may support a finding of fact that the claimant has a well-founded fear of persecution in the future, but it will not necessarily do so. If, for example, there is evidence that country conditions have changed since the persecution occurred, that evidence must be evaluated to determine whether the fear remains well founded.' See further below, para 2.59.

[335] Demirkaya v Secretary of State for the Home Department [1999] Imm AR 498, citing J C Hathaway The Law of Refugee Status (1991) p 88. See also Hutchison J (as he then was) in R v Secretary of State for the Home Department, ex p Parmak (CO/702/90; 23 January 1992): '[W]here a person has suffered persecution in the past, that lends considerable force to his submission that he fears that he will suffer persecution in the future. See also Brooke LJ in the Court of Appeal in Gullu v Secretary of State for the Home Department [2003] EWCA Civ 366 for a case where the severity of ill-treatment had not been adequately taken into account.

[336] Immigration Rule 339K, transposing Article 4(4) of Directive 2004/83. See FB (Lone women, PSG, internal relocation, AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090 (27 November 2008): '61 … Nevertheless, it is axiomatic where an appellant has been believed as to her account of past risk, that the Tribunal will be slow to find that the risk has ceased to exist in the absence of fresh material indicating a change in circumstances that is normally more than the passage of time alone. In the event, it is this factor that we have found most persuasive. There is no other evidence (save as to the passage of time) that demonstrates a change in circumstances. Adopting this approach, (supported by para 339K of the Immigration Rules), the Tribunal is drawn to the conclusion that the appellant has established to the lower standard that she remains at risk of harm in the area of Bankala arising from her being selected to act as a sowei and having rejected that role because she is opposed to such traditional practices.' See also FK (SDF member/activist, risk) Cameroon CG [2007] UKAIT 00047 (21 May 2007) [36]–[37]; Blake J in the Administrative Court in Etame & Anor (R on the application of) v Secretary of State for the Home Department [2008] EWHC 1140 (Admin) (23 May 2008) [70]; AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) (23 April 2010) at [54]. The majority judgment in the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 (15 November 2006): '[39] True it may be that if the non-citizen did, before entering Australia, suffer persecution or had a well-founded fear of it in that other country, unless there have been real and ameliorative changes that are unlikely to be reversed in the reasonably foreseeable future, then the person will in all probability continue to be one to whom Australia owes protection obligations.' The ECJ attributes significant weight to direct experiences of harm for those who have recently left their country, see Salahadin Abdulla (Area of Freedom, Security and Justice) [2010] EUECJ C-175/08 (02 March 2010): '[87] … a person who, after having resided for a number of years as a refugee outside of his country of origin, relies on other circumstances to found a fear of persecution does not normally have the same opportunities to assess the risk to which he would be exposed in his country of origin as does an applicant who has recently left his country of origin.' And at [96], regarding past threats or acts of harm that might not have been relied on regarding an original asylum claim but become relevant when reassessing the case for other threats that might counteract cessation: 'Consequently, in that situation, Article 4(4) of the Directive may be applicable where there are earlier acts or threats of persecution which are connected with the reason for persecution being examined at that stage. [97] That may be the case, in particular, where the refugee relies on a reason for persecution other than that accepted at the time when refugee status was granted and: – prior to his initial application for international protection, he suffered acts or threats of persecution on account of that other reason, but did not then rely on them; – he suffered acts or threats of persecution for that reason after he left his country of origin and those acts or threats originate in that country.'

[337] Demirkaya v Secretary of State for the Home Department [1999] Imm AR 498. A failure to take into account past persecution in relation to a future interest in the claimant constitutes overlooking a relevant consideration of such importance that it amounts to an error of law: Hutchinson J in R v Secretary of State for the Home Department, ex p Parmak (CO/702/90; 23 January 1992).

[338] Paragraph 45: 'it may be assumed that a person has a well-founded fear of being persecuted if he has already been the victim of persecution for one of the reasons enumerated in the 1951 Convention.'

[339] Keene LJ in the Court of Appeal in Nenni v Secretary of State for the Home Department [2004] EWCA Civ 1077 (26 July 2004): '21 … What was being said in Demirkaya was that past persecution has a probative value on the issue of whether there is a well-founded fear if returned, and that the adjudicator or Tribunal must explain in a case where such evidence does not lead to a conclusion in favour of the claimant why such a conclusion has not been reached. The explanation may lie in some change in the regime or the political situation in the country in question, but it cannot be confined to that, as Mr Henderson conceded in argument. One is dealing here with facts from which an inference of future persecution or ill-treatment may be drawn. But inevitably that means that other facts may entitle the decision-maker not to draw that inference. What has happened to the claimant in his home country since the persecution or ill-treatment may, for example, be relevant. I entirely accept that past persecution is highly relevant, and in some cases may be determinative, but it is not automatic that, because there has been past ill-treatment, a well-founded fear of persecution or of Article 3 ill-treatment is established. The decision-maker must look at all the relevant circumstances and explain his decision.' Hence it would not be true to say that because a man was persecuted in the past, even if there is a measure of ill-treatment thereafter, he can never be refused asylum: MacPherson J in R v Secretary of State for the Home Department, ex p Direk [1992] Imm AR 330 at 334–335.

[340] The Honourable Mr Justice Collins in the Tribunal in the test case of Sijakovic (01/TH/00632; 1 May 2001). Kennedy LJ in the Court of Appeal in R v Secretary of State for the Home Department, ex p Dahmas (FC3 1999/6212/C; 17 November 1999) thought it 'manifestly irrational' to fail to recognise this: 'If in 1995, when Mourad was arrested, the applicant was sought by a regime which is still in power is it not reasonable to conclude that he must have a well-founded fear of being persecuted by that regime should he be returned?' Rejection of the sense of this approach led to the conclusion that an asylum seeker could not safely be returned to the custody of the authorities who had committed the error in Denmark, where his asylum claim had been substantively considered and rejected.

[341] Menaa (15415; 14 August 1997); Kirby J in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo [1997] 144 ALR 567 See above para 2.62 n 1. Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] Imm AR 271: 'People who have not yet suffered actual persecution (one thinks of many Jews who fled Nazi Germany just in time) may have a very well-founded fear of persecution should they remain.' Similar sentiments have been expressed by the US Court of Appeals in Kotasz v INS, 31 F 3d 847, 852 (9th Cir, 1994): 'Certainly, it would not have been necessary for each individual Jew to await a personal visit to his door by Nazi storm troopers in order to show a well-founded fear of persecution.'

[342] 'It is clear law … that the suffering of physical injury is not a pre-requisite to refugee status': Schiemann LJ in Noune v Secretary of State for the Home Department (C/2000/2669; 6 December 2000). There is certainly no obligation to wait around until one is the subject of ill-treatment, for it is the risk of mistreatment, not its occurrence, which is the only issue: Karakus (19578; 16 December 1998). See also Heneghan J in the Federal Court of Canada in Pacificador v Canada (Minister of Citizenship and Immigration), 2003 FC 1462 (2003 FC 1462).

[343] The New Zealand Refugee Status Appeals Authority in Refugee Appeal No 300/92 Re MSM (1 March 1994): '… in pointing to the absence of past persecution of the appellant himself, the Refugee Status Section overlooked the fact that a claim to refugee status may be established by circumstantial evidence. For example, that persons similarly situated to the claimant have been persecuted in the country of origin, or alternatively, are at risk in that country. Professor Hathaway in The Law of Refugee Status (1991) at p 90 emphasizes that it is important to take into account what he describes as "contextualized surrogate indicators of risk". The question to be asked is what is in fact happening to persons like the claimant. It is not acceptable to rely on "generic or intuitive reasoning about the likelihood of harm", that is, whether persons who played minor roles in the past are in danger: "The best circumstantial indicator of risk is the experience of those persons perceived by authorities in the state of origin to be most closely connected to the claimant, generally including persons who share the racial, religious, national, social, or political affiliation on which the claimant bases her case".'

[344] Speaking of the Kurdish Autonomous Area in the North of Iraq, to which no returns seem to have been made from the UK in recent years, the Tribunal wrote in Khalil [2002] UKIAT 03403 (1 August 2002): 'It is the regrettable truth that evidence of persecution is supplied through individuals suffering because of it. We are sure that we have no need to stress the danger of returning an individual to a country of which there is little knowledge of how he would be treated with the consequence of risk simply of providing evidence for other cases.'

[345] Evidentially it is not for the appellant to establish the negative of 'no change': Singh and Kaur (22486; 28 January 2000). If there is no evidence as to change, then it would be difficult to show that the situation was not as it had been previously: Odion (00/TH/01851; 28 July 2000). Other cases speak of an evidential burden: Kupa (00/TH/00071; 15 March 2001); Muwyinyi (00052; 24 November 1999); Dyli (00/TH/02186; 30 August 2000). Mason CJ in the decision of the High Court of Australia, Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391: '… in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality'; approved and followed by the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 81/91 Re VA, 6 July 1992.

[346] Dyli (00/TH/02186; 30 August 2000). In that case, the Tribunal ruled that adjudicators should routinely take note of the undoubted improvement brought about by UN involvement in the Kosovo situation: 'In cases relating to Kosovo, whether or not evidence on the matter is introduced, judicial notice should be taken of the fact that, following SCR 1244, there has been a United Nations presence in Kosovo by the agency of UNMIK and KFOR since June 1999.' The change in regime in the Democratic Republic of Congo was similarly a matter of common knowledge in Kongo-Kongo (00-TH-0064; 3 March 2000).

[347] The Law of Refugee Status (1991) pp 201–203. See Chapter 8, para 8.3.

[348] Simon Brown LJ refusing permission to appeal to the Court of Appeal in Canaj v Immigration Appeal Tribunal; Vallaj v Special Adjudicator [2001] EWCA Civ 782.

[349] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; see also Gaudron J in the same decision: 'The definition of "refugee" looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression "once bitten, twice shy", that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be "well-founded fear" at the time of determination, it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.' And Dawson J: 'Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status, and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status.'

[350] Paragraph 135, cited as relevant in some cases in the assessment of original entitlement to refugee status in Arif v Secretary of State for the Home Department [1999] Imm AR 271; at its Conclusion No 69 (1992), the UNHCR Executive Committee underlined the need to reserve the Cessation Clauses for 'situations where a change of circumstances in a country is of such a profound and enduring nature that refugees from that country no longer require international protection'.

[351] Coulibaily (00/TH/00920; 18 April 2000).

[352] Joint Position paper prepared by the Council of the European Union on the basis of art K.3 of the Treaty on European Union on the harmonised application of the definition of the term 'refugee' in art 1 of the Geneva Convention. Also addressing cessation, the Qualification Directive refers to 'whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded' – Art 11(2).

[353] Hence one Tribunal wrote 'to send a would-be refugee back to a civil war-torn country simply because his faction seems to be in the ascendant in one particular area at one particular time, without recognising the real possibility of a swift and dramatic reversal of fortune either there or elsewhere, would in our view be grossly unfair': Ali, Hawa Nur (11544; 15 November 1994). The existence of recent newspaper reports showing a considerable alteration in the political situation, but which did not traverse a sufficient period of time to permit a reliable prognosis as to the future, could not be said to show the requisite certainty of improvement required in an asylum appeal: Kawa (13493; 4 June 1996). Marceau JA in the Federal Court of Canada in Ali Ahmed v Canada (Minister of Employment and Immigration) (14 July 1993; A–89-92): 'Similarly, the mere fact that there has been a change of government is clearly not in itself sufficient to meet the requirements of a change of circumstances which have rendered the genuine fear of a claimant unreasonable and hence without foundation … the mere declarations of the new four-month old government that it favoured the establishment of law and order can hardly be seen, when the root of the appellant's fear and the past record of the new government with respect to human rights violations are considered, as a clear indication of the meaningful and effective change which is required to expunge the objective foundation of the appellant's claim'.

[354] Bralo (14242; 1 December 1996). Berisha (01/TH00107; 21 February 2001): 'The protection which exists must be effective and obviously if it is likely to be transitory or the situation is so fluid that it is impossible to know what might happen, it may be easy for an asylum seeker to establish the need for international protection, at least until the situation settles down.'

[355] The American status determination authorities cannot satisfy the statutory burden (see para 2.59 n 6 below) that lies on them in 'past persecution' cases solely by pointing to some change in government, but must expressly find that individuals like the applicant, who have been persecuted in the past for a Convention reason, no longer have a reasonable fear of persecution: David Eduardo Gutierrez (No 95–70053; 8 August 1996) 9th Cir, US Court of Appeals.

[356] De Montigny J in the Federal Court of Canada in Christopher v Canada (Minister of Citizenship and Immigration) 2005 FC 730 (20 May 2005): '[27] In conclusion, I am of the view that the Board made a reviewable error in failing to analyse the specific risk of extortion in Colombo raised by the Applicants. It was no answer to rebut the Applicants' testimony with general statements about the improvement in the country conditions as a result of the ceasefire.' Schiemann LJ in the Court of Appeal in Djebari v Secretary of State for the Home Department [2002] EWCA Civ 813: 'When the evidence is prepared for the new hearing the parties should bear in mind that it is not helpful for the determination of the essential issues in the case to say that the risk of ill-treatment is less than it was a few years ago. The Tribunal will be concerned with whether the risk now is a real risk, not with whether that risk is less than it was a few years ago.' Specific reasoning is to be preferred to general assertion: Pregerson J in the US Court of Appeals in Chanchavac 207 F 3d 584 (9th Cir 2000): 'However, the INS does not satisfy its burden simply by introducing "[i]nformation about general changes in the country." It must undertake an "individualized analysis of how changed conditions will affect the specific petitioner's situation." Borja, 175 F 3d at 738.' Shore J in the Federal Court of Canada in Junusmin v Canada (Citizenship and Immigration), 2009 FC 673 (CanLII): '[39] Moreover, the Board member's quote from the 2007 Country Report only states that discrimination and harassment of ethnic Chinese Indonesians has "declined compared with previous years". Such reasoning is clearly an insufficient basis for finding that there is no objective fear of persecution. A "declining" amount of harassment says nothing about the actual amount of harassment against the ethnic Chinese in Indonesia.'

[357] Arif v Secretary of State for the Home Department [1999] Imm AR 271.

[358] MacDonald's Immigration Law and Practice (4th edn, 1995) para 12.58 at 397.

[359] See Arif v Secretary of State for the Home Department [1999] Imm AR 271.

[360] Hale LJ in Salim v Secretary of State for the Home Department (IATRF 1999/0993/C; 14 April 2000): 'it was assumed in [Arif v Secretary of State for the Home Department [1999] Imm AR 271] that the appellant would have been entitled to asylum earlier'; 'the reversed burden identified in Arif occurs only in cases where the principle is the same as in Arif: that is, where it has been found or is accepted that at some time in the past, before the alleged change of circumstances, the claimant was a refugee': Dyli (00/TH/02186; 30 August 2000). There is no apparent reason why the establishment of status could not be by judicial decision, rather than by consent of all the parties. In Babela [2002]UKIAT06124 (20 January 2003) the Tribunal wrote of the grant of refugee status abroad: 'We have considered the arguments concerning Arif and take the view that this appeal falls firmly within the principles enumerated in Arif. In some ways, it can be said to be a stronger argument than that in Arif itself. Arif was argued on the basis that if it was thought that Mr Arif's application for asylum would have been granted at the time that it was made, then the onus was on the Respondent to establish that there had been sufficient change in circumstances in his country of origin in the meantime, in order to defeat that application. Here, this Appellant was a refugee. There is no question of having to look back and assess his situation at an earlier date than when the decision was made.' See also Chapter 9, para 9.14. The restrictions on Arif must be read in light of its approval in the Court of Appeal in Saad, Osorio and Diriye v Secretary of State for the Home Department [2001] EWCA Civ 2008: 'The appellant is likely to focus on the circumstances prevailing at the time that the Secretary of State refused his application for asylum. If he demonstrates that at that time he was a refugee, the evidential burden will shift to the Secretary of State to demonstrate that circumstances have changed so that he has ceased to be a refugee.'

[361] The Tribunal in Dyli (00/TH/02186; 30 August 2000): '[A]lthough his claim was on grounds of political opinion, it had features that justified a provisional assumption that any risk might well survive a change of political climate. Arif was not merely at risk of persecution for his political views: he was at risk of having to serve a sentence of imprisonment that had been lawfully imposed on him'; see further Imam (00/TH/1351; 16 June 2000); Kupa (00/TH/00071; 15 March 2001); Muwyinyi (00052; 24 November 1999).

[362] Muwyinyi (00052; 24 November 1999). The New Zealand Authority also rejected a two-stage process in Refugee Appeal No 70366/96, Re C, 22 September 1997: 'the creation of a presumption of a continuing well-founded fear of persecution is an uncalled-for gloss which can only complicate the jurisprudence and lead to the formulation of rules for one class of asylum seeker which are not applicable to another. This is wholly undesirable in the humanitarian context. There is much to be said for both simplicity and clarity.' In so doing the RSAA followed the Full Court of the Federal Court of Australia in Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 at 254 (FC:FC) (Black CJ, Lockhart and Sheppard JJ). Hugessen J in the Federal Court of Appeal of Canada in Yusuf v Canada (Minister of Employment and Immigration) (A-130-92; 9 January 1995): '[2] We would add that the issue of so-called "changed-circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal 'test' by which any alleged change in circumstances must be measured. The use of words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s 2 of the Act: does the claimant now have a well-founded fear of persecution?' Contrast the US position, where the INS Regulations provide that if the applicant suffered past persecution before leaving the country, the applicant is presumed 'also to have a well-founded fear of persecution unless a preponderance of the evidence establishes that since the time the persecution occurred conditions in the applicant's country … have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he were to return': 8 CFR 208.13(b)(1)(i), applied by the US Court of Appeals in Harpinder Singh 63 F.3d 1501, 1508. There is a good account of the international position given by the New Zealand Refugee Status Appeals Authority in Refugee Appeal No 70366/96 Re C (22 September 1997).

[363] Okoro (00/TH/01405; 12 June 2000). The principle may have applicability where the decision-maker has incidentally made a finding of historic status: Reed J in the Federal Court of Canada in Penate v Canada (Minister of Employment and Immigration) (93-A-292; 26 November 1993): 'For example, when a panel is weighing changed country conditions together with all the evidence in an applicant's case, factors such as durability, effectiveness and substantiality are still relevant. The more durable the changes are demonstrated to be, the heavier they will weigh against granting the applicant's claim. In addition, if a panel has in fact made a determination that status would have existed but for changed circumstances (that is, if it has voluntarily adopted that type of conceptual analysis) then a more rigorous assessment of the changed conditions following the criteria set out by Professor Hathaway will likely be appropriate.'

[364] Sijakovic (01/TH/00632; 1 May 2001): 'We had hoped that Arif had been explained and distinguished by the tribunal in a number of determinations and in particular Dyli. It is to be noted that the headnote in the Imm AR is misleading.'

[365] Lord Brown cited it without repentance in Hoxha & Anor v Secretary of State for the Home Department [2005] UKHL 19 (10 March 2005), his speech being agreed with each other member of the Committee: '66 That said, however, it would seem to me appropriate that in the initial determination of an asylum claim under 1A(2) the decision-maker, in a case where plainly the applicant fled his home country as a genuine refugee from Convention persecution, should not too readily reach the view that he could now safely be returned to it. Not only, as both Lord Slynn and Lord Lloyd observed in Adan [1999] 1 AC 293, may historic fear constitute important evidence tending to establish a current fear; so too it justifies some scepticism on the part of the decision-maker as to whether in truth the change in home circumstances is sufficiently clear and firm as to warrant the refusal of refugee status. That essentially is the point I was trying to make in the Court of Appeal in Mohammed Arif v Secretary of State for the Home Department [1999] Imm AR 327 where, at p 276, I suggested that, depending always on the particular facts of the case, there might well be "an evidential burden on the Secretary of State to establish that [the asylum seeker] could safely be returned home". Although "some reservations as to the utility of the language of burden of proof" were expressed in the later Court of Appeal decision in S v Secretary of State for the Home Department [2002] INLR 416,431, I remain unrepentant. It seems to me only right that in a case where the Secretary of State is contending that a country once plainly unsafe (like, say, Sri Lanka or Kosovo) has now become safe, he should place before the appellate authority sufficient material to satisfy them of that critical fact.' See also AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC) (23 April 2010) at [143].

[366] Lusavanza (14519; 7 March 1997).

[367] BK (Failed Asylum Seekers) DRC (Rev 1) CG [2007] UKAIT 00098 (31 October 2008), [318] to [321]: 'So far as the nature of the bribe-asking and bribe-taking process is concerned, we would first of all observe that it does not seem to us that the mere seeking of a bribe can itself amount to inhuman or degrading treatment, even if the request/demand itself is illegal. Furthermore, we take it as uncontroversial that bribe-asking is a significant problem in a number of airports around the world, including some in developed countries. … Secondly, in our view the evidence does not demonstrate that the bribe-asking which takes place at N'Djili airport is generally accompanied by threats of violence or the actual use of violence. The final, interrelated, aspect concerns whether failed asylum seekers are in general able to negotiate the bribe-asking process (when they encounter it) by paying a bribe sufficient to ensure that they pass through airport controls unharmed. … We cannot rule out that there may be isolated instances where the demand for a bribe takes an oppressive form or where the sum demanded is sufficiently significant to render that demand oppressive in effect (because of what is threatened if the bribe is not paid). However, bearing in mind the lack of any satisfactory evidence of bribe-asking taking oppressive forms, we consider that such instances will be rare.'

[368] JT (Tutsi – Failed Asylum Seekers – Evidence) Democratic Republic of Congo [2005] UKAIT 00102: 'if the purpose of harassing returnees is to extract money as is repeatedly suggested by Dr Kennes in his report, it must follow that putting further pressure on a person who has no ability to offer money or arrange money from relatives by putting him or threatening to put him in prisons with 'inhuman and degrading conditions' is not going to meet the objective of securing pecuniary benefit. In those cases it would be reasonable to assume, the person concerned, absent criminal record and political profile, would be allowed to enter following initial harassment.'

[369] Simon Brown LJ refusing permission to appeal to the Court of Appeal in Canaj v Immigration Appeal Tribunal; Vallaj v Special Adjudicator [2001] EWCA Civ 782. Stone J in the Federal Court of Australia in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (12 January 2007): "30 The Tribunal found that the appellant had a reputation as a troublemaker and that it was likely that this was at the root of his past treatment. That being so it was not sufficient to find that those responsible for that treatment would not seek him out in other parts of Egypt. It was necessary for the Tribunal to ask if the appellant is likely to continue with the conduct that marked him as a troublemaker in the past and, if so, whether that conduct would, in the future, evoke a similar response from others. The Tribunal is not entitled to base its prediction on an expectation that the appellant will modify his behaviour on his return to Egypt; Appellant S395/2002 at [40] per McHugh and Kirby JJ and at [80]–[82] per Gummow and Hayne JJ.'

[370] See Chapter 3, para 3.31 Sexuality and Persecution.

[371] See generally Simon Brown LJ in Iftikhar Ahmed v Secretary of State for the Home Department [2000] INLR 1, para 4.16; and the discussion of conduct in breach of foreign laws, particularly paras 3.28, 3.29.

[372] FS and others (Iran, Christian Converts) Iran CG [2004] UKIAT 00303 (17 November 2004): '159. … We do not regard it as right or sensible, in the absence of a finding of fact to that effect upon the evidence, that it should be assumed that a convert would deny his religion to officials when asked. There are also many later occasions when their religion could well be asked for, eg marriage, civil dispute, or seeking employment, when the position would be revealed if it had not been revealed before.'

[373] Sedley LJ, granting permission to appeal in SD (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 1032 (3 October 2007); SP and Others (Tibetan, Nepalese departure, illegal, risk) People's Republic of China CG [2007] UKAIT 00021 (9 February 2007); IK (Returnees, Records, IFA) Turkey CG [2004] UKIAT 00312 (2 December 2004): '86 … It will be for an Adjudicator in each case to assess what questions are likely to be asked and how a returnee would respond without being required to lie'; HS (Returning Asylum Seekers) Zimbabwe CG [2007] UKAIT 00094 (29 November 2007): '6. Although such deportees will not be identified as failed asylum seekers, the respondent accepts that they should not be expected to lie about having made a claim for asylum in the United Kingdom if asked about this on return.'

[374] See Judge LJ in the Court of Appeal in Hysi v Secretary of State for the Home Department [2005] EWCA Civ 711 (15 June 2005): '15 … To compel an individual to disown his origins interfered with a fundamental right. If the consequence of exercising the right to declare your race would lead others to subject you to severe ill-treatment, the consequence would be discrimination on the grounds of race, and persecution. Mr Nicol described freedom from racial discrimination as a core human right. We agree, and no court in this country would need persuasion that such discrimination is anathema … 33 … If however the truth is to remain concealed, this would probably involve the appellant leading a hermit-like existence, indeed without any social intercourse based on trust. As a stranger he is bound to be asked questions. He would presumably have to lie … he would thereafter have to avoid letting slip any intimation of his true ethnicity, or his constant lies. He would simply have to continue to lie and conceal his origins, while simultaneously living with the risk that the truth would be suspected or discovered, and the fear of the consequent unpleasantness, fear based on the harsh realities of what he had seen his parents endure.'

[375] See Chapter 3, para 3.31 n 5, for McHugh J in the High Court of Australia in NABD.

[376] Sabaratnam v Canada (Minister of Employment and Immigration) (FCA No A-536-90, 2 October 1992). Schiemann LJ in Noune v Secretary of State for the Home Department (C/2000/2669; 6 December 2000): 'It does not appear from the Tribunal's reasoning that they considered whether her ability to escape physical injury was attributable in whole or in part to her being in hiding.' Neither first principles nor the facts of the case in hand may justify a simplistic approach, see Munby J in the Administrative Court quashing the determination of the Tribunal refusing leave to appeal in Choudhrey v Immigration Appeal Tribunal [2001] EWHC Admin 613 (1 August 2001): ' … the bald assertion that "A genuine asylum seeker would have left his country at the earliest opportunity" seems to me neither to accord with historical experience – one has only to think of the Jews who delayed their flight from Nazi Germany until almost the last moment – nor to reflect what, if he was a credible witness, was the reality of the position in which the claimant found himself after the second attack'.

[377] Noonan J in Hardev Singh (US Court of Appeals, 9th Cir, 28 April 1995, 53 F 3d 1031 at 1034). Circuit Judge Pregerson in Canales-Vargas v Gonzales (US 9th Circuit Court of Appeals; Case No 03–71737): 'We do not fault Canales-Vargas for remaining in Peru until the quantity and severity of the threats that she received eclipsed her breaking-point.'

[378] New Zealand Refugee Status Appeals Authority in Appeal No 135/92, Re RS, 27 August 1991. See further Ramirez-Rivas v INS, 899 F 2d 864 at 871 (9th Cir, 1990), cited by Pregerson J in the US Court of Appeals (9th Cir) in Chanchavac v INS: 'Unless it is the case that the security forces in El Salvador strike rapidly or not at all, the fact that [the petitioner] remained unharmed for a few months while she prepared to leave the country has only marginal probative value.'

[379] Ibrahim (17270; 17 June 1998). The UNHCR Handbook makes it clear that 'possession of a passport cannot … always be considered as evidence of loyalty on the part of the holder, or … of the absence of fear' and that passports are often 'issued to a person who is undesired in his country of origin [for] the sole purpose of securing his departure': para 48, cited and followed in Damaize-Job v INS, 787 F 2d 1332 at 1336 (US Court of Appeals, 9th Cir). See also the Court of Appeal in Liao He v Secretary of State for the Home Department [2002] EWCA Civ 1150, [2002] Imm AR 590 at [32]: 'Another pillar [of the IAT's reasoning] 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.'

[380] 'The fact that he was able to leave through official channels in 1991 is no reason to suppose that he is not telling the truth. There are, and were, ways of dealing with immigration formalities in a number of countries': the Tribunal in Rogers (HX00142; 7 January 2000). Cullen J in the Federal Court of Canada in Abdulhussain: 'In the instant case, the Board made no general finding of credibility; instead, it focused on implausibilities surrounding the applicant's departure from Iraq. Little of the applicant's case was actually dealt with by the Board. … The Board did not properly address the basis on which the applicant asserted her fear of persecution, except to say that if the authorities were so interested in her, they would not have allowed her to leave the country. It should be noted that the applicant offered as an explanation the fact that her husband paid the requisite authorities a monetary bribe to hasten the processing of their exit visas. In its reasons, while the Board acknowledges the bribe, it neither specifically accepts nor rejects this explanation.' Collins J in the Administrative Court in R v Secretary of State for the Home Department, ex p Q [2003] EWHC 195 Admin: 'Whatever may be the theoretical position, in practice, particularly in Kenya, bribery and corruption is rife. The fact that forged passports are commonly identified shows by itself that many do get through controls abroad. Mr. Roberts says that it is inconceivable that he would not have known the identity under which he was travelling. I see the force of that, but the fact is that it is a fairly common account from those who say they achieved entry with the help of an agent and forged documents. Particularly if the passport was (as here) likely to have been an European Union passport (almost certainly Portuguese) it is easy to see how a busy immigration officer might be prepared to wave through a passenger who was with another and who was said not to speak English.'

[381] New Zealand Refugee Status Appeals Authority in Refugee Appeal No 67/92 Re BR, 10 November 1992. Schiemann LJ allowing the appeal in R v Immigration Appeal Tribunal, ex p Abdulla (on the matter of an application for judicial review: R (on the application of Abdulla) [2001] EWCA Civ 1081: '… the fact that he was allowed out does not have as its logical consequence that he will not be persecuted if he returns. Hitler at first used to let the Jews out.'

[382] Arunlanandam (15253; 3 July 1997): in less compelling cases, mode of departure forms 'part of the web of evidence which it is legitimate to consider and weigh.'

[383] Turner J in R v Immigration Appeal Tribunal, ex p Kumbaro (CO/4799/1998; 8 November 2000) noted that ease of departure in such cases was unsurprising.

[384] UNHCR Handbook para 125, as cited with approval in Raya (11290; 18 August 1994); Schiemann LJ in Noune v Secretary of State for the Home Department (C/2000/2669; 6 December 2000): 'When, as here, there is a father's death and a widow's distress, to return to comfort the mother may well be evidence of filial bravery and affection rather than evidence of the lack of danger or fear of danger.' Pregerson J in the United States Court of Appeals for the 9th Circuit in Karouni v Gonzales (No 02–72651; 7 March 2005): 'Faced with the difficult choice of returning to Lebanon to see his dying parents or remaining in the safe haven of the United States, we do not fault Karouni for his choice to return to Lebanon to see his parents one last time. Accordingly, we do not believe that Karouni's two return visits to Lebanon constitute substantial evidence that his fear of persecution was not well-founded. See Damaize-Job, 787 F 2d at 1336.16 Rather, the IJ's conclusion to the contrary was "personal conjecture" about what choice someone in Karouni's unfortunate position would have made. Paramasamay v Ashcroft, 295 F 3d 1047, 1052 (9th Cir, 2002) (rejecting IJ's hypothesis as to what motivated the applicant's departure from Sri Lanka). 'An immigration judge's personal conjecture "cannot be substituted for objective and substantial evidence".' Id. (quoting Bandari v INS, 227 F.3d 1160, 1167 (9th Cir, 2000)).'

[385] Schiemann LJ in Noune v Secretary of State for the Home Department (C/2000/2669; 6 December 2000).

[386] AM & AM (Armed Conflict: Risk Categories) Rev 1 Somalia CG [2008] UKAIT 00091 (27 January 2009) [26].

[387] AM Somalia [23]; Gedow and Others v Secretary of State for the Home Department [2006] EWCA Civ 1342, sometimes cited as AG Somalia. See also Sedley LJ, granting permission to appeal in SD (Turkey) v Secretary of State for the Home Department [2007] EWCA Civ 1032 (3 October 2007).

[388] AM Somalia [24, 26].

[389] Sedley LJ for the Court of Appeal in HH (Somalia) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 426 (23 April 2010) at [58]: 'in any case in which it can be shown either directly or by implication what route and method of return is envisaged, the AIT is required by law to consider and determine any challenge to the safety of that route or method … [63] the AIT did fall into error. They took "method of return" as a necessary ingredient in any appraisal of risk and so, having no information about the details of documentation, escort and so forth, declined to consider AM's safety on return. In doing so, they did what Hooper LJ in AG, 29, said they must not do – throw up their hands and not deal with a relevant issue. [84] … Our provisional view is that the Directives read together require that the issues of safety during return (as opposed to technical obstacles to return) should be considered as part of the decision on entitlement.' Thus the Tribunal in AM Somalia were right as to the justiciability on appeal of the question of return [23]–[28], but wrong to find that, on the facts of that case, absent further details as to the method as opposed to route of return, there was any inhibition on proceeding to determine the issue [31].

[390] AM Somalia: '23 … whether what is known about route and method of return is sufficiently precise and foreseeable so as to be properly understood as being "implicit" in the decision to remove.'

[391] AM Somalia: '28. Turning then to route and method of return, the meaning of the former is plain: one looks at the point of arrival (airport or port) and then at any onward route proposed, "Method of return" is less straightforward a term, but must include, we think, matters such as the time of the return and any arrangements made relating to it, eg travel documents, escorts on the plane or on arrival or later on, and arrangements with the authorities in the receiving state or others (eg International Organisation for Migration (IOM)) regarding reception, processing on arrival and any considerations relating to safety of onward internal travel.' See the discussion of 'technical obstacles', also on MH, n 4 above, [82]–[84].

[392] Hooper LJ in Gedow: '32. I have reached the conclusion that it is impossible for immigration judges in cases of this kind (involving the safety of arrival at an airport and of a journey into Mogadishu) to deal with all the eventualities at the time of the hearing. The judge may have to make it clear what has to be done by the respondent so that an enforced returnee to Somalia does not face a real risk of Article 3 ill-treatment at the point of his return. The judge is then entitled to assume, for the purposes of the hearing before him or her, that what is required will be done.' Iraq and Somalia have found the Tribunal of the view that route of return is not sufficiently foreseeable: see KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023 and AM Somalia.

[393] Hooper LJ in Gedow: '31 … in the absence of undertakings, there is a risk of further litigation at the point of removal. However the length of time between a decision to remove and a decision to effect removal in Somalia cases coupled with the volatility of the situation in Somalia means that it may be difficult to shut out any chance of further litigation at some uncertain point in what may be a long time in the future.'

[394] Hooper LJ in Gedow [30].

[395] Hooper LJ in Gedow [123].

[396] NM and Others (Lone Women, Ashraf) Somalia CG [2005] UKIAT 00076 (31 March 2005): '26 … The burden of proof lies on a claimant to make out his or her claim in material particulars. If a claimant's evidence does not sufficiently satisfy the Adjudicator, the Adjudicator cannot make a finding on a claimant's home area; there is no duty to make a finding regardless of the quality of the evidence. The appeal has to be decided on the basis that it is not known, because of deficiencies in the claimant's evidence and bearing in mind who bears the burden of proof.'

[397] Richards LJ in the Court of Appeal in AK v Secretary of State for the Home Department [2006] EWCA Civ 1117 (31 July 2006) [27]–[30].

[398] BA & Ors (Bedoon, Statelessness, Risk Of Persecution) Kuwait CG [2004] UKIAT 00256 (15 September 2004) at [51]–[60].

[399] BA & Ors (Bedoon, Statelessness, Risk Of Persecution) Kuwait CG [2004] UKIAT 00256 (15 September 2004): '41 … we do not consider that it would be open to the UK authorities to countenance return by unlawful means.'

[400] See Chapter 7, para 7.7, and the cases listed there at n 1.

[401] BK (Failed Asylum Seekers) Democratic Republic of Congo CG [2007] UKAIT 00098 (18 December 2007): Identification as failed asylum seekers: '188. It was common ground between the parties that persons involuntarily returned or expelled from the UK to the DRC will not be seen as normal returnees. They will be questioned with a view to establishing what type of expellee they are; and in particular whether they are either a failed asylum seeker or a deportee. (It will have already been observed that much of the evidence in this case does not always distinguish between these two categories. Sometimes the term "deportee" is used to cover both a failed asylum seeker and a person expelled or deported for non – asylum reasons – such as that his or her presence has been deemed non-conducive to the public good in the UK – whereas sometimes it is used to cover the latter category only. In certain contexts, as we have already had cause to see, it can be of importance to distinguish between different categories of involuntary returnees/expellees).'

[402] BK Congo: '189. The fact that a person's identity as a failed asylum seeker will become known at the point of return reflects the main thrust of the evidence; and we are prepared to accept that for the purposes of this appeal this is the case. The fact that failed asylum seekers have substitution documents (a laissez passez) will suffice to arouse initial interest. In respect of those who have travelled with escorts, the fact that they are not ordinary returnees will be known to the DRC airport officials in any event, from the flight manifest. Those who are handed over to DRC airport officials by UK immigration officials (as happened on the February 2007 charter flight), will observably not be normal returnees.'

[403] Longmore LJ in the Court of Appeal in BK (Democratic Republic of Congo) v Secretary of State for the Home Department [2008] EWCA Civ 1322 (3 December 2008): 'Credibility of Failed Asylum-seekers: '10. … The AIT make it clear that they do not proceed on the basis that a failed asylum seeker is to be disbelieved about all that he or she has said in the past or was saying to the expert witness. But there can be no doubt that evidence from such a source is, indeed, extremely problematic.' BK (Failed Asylum Seekers) DRC (Rev 1) CG [2007] UKAIT 00098 (31 October 2008): 'Having made personal ties in European countries and experienced a far higher standard of living than obtains in the DRC, it is very likely that some (if not many) of these people will want to return to the UK or Europe. They may well, therefore, have a vested interest in claiming that they were mistreated on return. Of course, ulterior motives of this kind may be absent, but what we have to bear in mind is the general context in which evidence of this kind is sought and obtained in untested and undocumented form. As regards the claimed consistency, these accounts disclose as many divergences as they do points of agreement.'

[404] BK (Failed Asylum Seekers) DRC (Rev 1) CG [2007] UKAIT 00098 (31 October 2008): '86. Given the great deal of time and effort that the appellant's representatives have put into this case, it is appropriate that we make clear the following. In the event of any future investigations being conducted of returned failed DRC asylum seekers, those concerned should take steps to ensure that basic relevant particulars are sought. Public funds, not to mention valuable judicial resources, are involved and must not be expended uselessly. In particular, we consider that where someone is known to have been a failed asylum seeker in the UK, initial efforts should be directed to obtaining (with authorisation) details of that person's asylum claim and the outcome of any appeal.'

[405] BK (Failed Asylum Seekers) DRC (Rev 1) CG [2007] UKAIT 00098 (31 October 2008): The reaction of the authorities including their public statements [195], UNHCR involvement in returns [191], knowledge that asylum claims are made in a confidential process [192], surveillance focused on real activists abroad [193], and knowledge of the primary migration driver being economic betterment [194].

[406] AA (Involuntary Returns To Zimbabwe) Zimbabwe [2005] UKAIT 00144 (7 October 2005): '153 … the CIO is the organ by which President Mugabe enforces a violent regime, intolerant of any shade of opposition, irrational in its motivation and indifferent to individual human rights.' See also Kirby J in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo [1997] 144 ALR 567 (see above para 2.56 n 1).

[407] AA (Involuntary Returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 (7 October 2005): '151. The Respondent's argument is from silence: but silence can speak, and it does so when opportunities to rebut evidence are not taken. Evidence on behalf of the Appellant that is frail or apparently unsatisfactory may more easily discharge the burden of proof when it is shown that efforts to rebut it are more unsatisfactory still.'

[408] AA (Involuntary Returns to Zimbabwe) Zimbabwe [2005] UKAIT 00144 (7 October 2005): '155. Involuntary departures are a different matter. The evidence from the Respondent in this appeal appears to demonstrate that the following process is adopted. The individual in question, if accompanied on the plane, is escorted from the plane and not handed over in Harare until the escort has a satisfactory assurance that the passenger will be permitted to enter Zimbabwe. The passenger's papers are handed by the United Kingdom authorities to the custody officers or the air crew of the plane. At that point, it appeared to us that the Respondent ceased to have any very clear interest in what happened. The evidence was that the Respondent's understanding was that the air crew retained the documents during the flight and, on arrival in Harare, handed them to Zimbabwe officials. The Respondent's witness indicated that, by retaining the documents for the whole of the flight, the airline could be assured that a passenger who is being involuntarily removed from the United Kingdom would not destroy his documents and so hinder his admission to Zimbabwe. That may be so, but we find the Respondent's lack of interest in the process by which individuals that he returns to Zimbabwe are received by the Zimbabwean authorities rather alarming.'

[409] BK (Failed Asylum Seekers) DRC (Rev 1) CG [2007] UKAIT 00098 (31 October 2008): '382. The argument for so considering them is that they evidence a persistent voicing of concerns by NGOs and others in several European countries over a considerable period of time and that there is a significant degree of consistency between their accounts. The difficulty we have with attaching cumulative weight to this body of evidence, apart from their individual forensic shortcomings, is that we consider there are surrounding circumstances which cast serious doubt on the motives of those who have alleged they have been victims.'

[410] For example, BK (Failed Asylum Seekers) DRC (Rev 1) CG [2007] UKAIT 00098 (31 October 2008) paras 293–311.

[411] See para 2.65 n 2.

[412] Notwithstanding the UNHCR Handbook, para 196, with its reference to a shared burden in establishing the facts, see para 2.14 N 5 above. See also para 2.50 n 1 above.

[413] Williams (12080; 28 April 1995): 'We entirely understand that the Home Office may have to make enquiries concerning evidence adduced by an appellant and it would be an unjustified restriction to prevent them from so doing. However, they must be careful that in making those enquiries they do not do anything which of itself creates the very likelihood to persecution which the respondent had decided does not exist.'

[414] BA & Ors (Bedoon, Statelessness, Risk Of Persecution) Kuwait CG [2004] UKIAT 00256 (15 September 2004): 'the duty of confidentiality owed by the Secretary of State to the asylum claimant prevents approaches to the country of origin prior to the final determination of whether a claimant is a refugee. Only if he is found not to be a refugee can contact in respect of a particular case then be made with the consular authorities of the country concerned.' Rabinder Singh QC sitting as a Deputy High Court Judge in the Administrative Court in R (Amirthanathan) v Secretary of State for the Home Department [2003] EWHC 1107 Admin: 'it was accepted at the oral hearing before me that once an appeal had been lodged, it is inappropriate to require a person to give an interview to the authorities of the state to which he will be removed in order to facilitate the obtaining of a travel document. This is no doubt for the sound reason that such an interview might lead to information being provided which might put the claimant or his family, who in the present case are still in Sri Lanka, at risk on the hypothesis that his appeal on human rights grounds may succeed.' See above para 2.10 for confidentiality generally.

[415] Williams: 'We would suggest that in any case in future where it is felt that such enquiries are necessary that a full statement of precisely what happened is made available to the appellant and the Appellate Authorities from which the latter will be able to judge whether or not those enquiries have put the appellant at risk or not.'

[416] The policy on confidentiality was recorded thus in R v Secretary of State for the Home Department, ex p Rostami (FC/1999/5835/4; 6 October 1999): 'Information you give us will be treated in confidence, but may be disclosed to other government departments and agencies, local authorities and international organisations to enable them to carry out their functions. Information may also be disclosed in confidence to asylum authorities of other countries which may have responsibility for considering your claim.'

[417] Bouamama (18630; 28 September 1998): 'The fact that the claimant's details have been given to the Algerian Government in this context is, however, a matter which falls to be considered in determining whether the appellant has a well founded fear of persecution for a Convention reason if returned to Algeria at the present time.'

[419] For some relevant considerations, see the joint judgment of Carr, Hill and O'Loughlin JJ in the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v 'Applicant Z' [2001] FCA 1447, summarising and approving the concerns which had exercised Nicholson J below: '1. In the circumstances, was departure by Applicant Z on a voluntary basis a likely or even a possible option for him? In considering this issue, it would be relevant for the Tribunal to take into account that s 198 of the Act requires that an unlawful non-citizen whose visa application has been determined adversely to him "must" be removed. 2. Even if the Tribunal was of the view that Applicant Z might avoid removal by voluntary departure, the Tribunal would need to give consideration to the practicality and likelihood of that happening. So, for example, given that he was in detention, how could he recover the passport that, if in fact given to the people smuggler, he had given, so the Tribunal held, on the basis that it could be recovered? And, if the practical difficulty of detention could be ignored, what was the likelihood that the people smuggler would return the passport and in circumstances where it could be used by the applicant to depart voluntarily before compulsory removal took place? The possibility of voluntary departure might also involve consideration of whether the applicant had access to funds to permit him to depart voluntarily. 3. Given that Applicant Z was in detention, but was to be removed from Australia (or, for that matter, was able to effect a voluntary departure from Australia), if he was unable in time, or at all, to recover his passport how could he obtain a new passport from the Iraqi authorities? It would be necessary for the Tribunal to consider whether there was a practical difficulty in doing so given that Applicant Z was in detention and presumably could only attend personally at the Iraqi Embassy (if at all) in the presence of detention officers guarding him. The Tribunal would need to consider also what impact it would have on the question whether the Iraqi authorities would learn of his application for refugee status that an application for a new passport was forwarded by post from the detention centre and was to be returned to the centre, if postal applications for replacement of Iraqi passports were possible. The Tribunal might also need to consider such other matters as whether Applicant Z would have to swear as to the circumstances in which the previous passport became lost. No doubt the question of the procedure necessary to obtain a replacement Iraqi passport would need to be addressed. 4. If the reality was that Applicant Z would necessarily be removed from Australia and could not, or would not, leave voluntarily, would the travel to Iraq be on a ticket purchased by the Australian government? Would the ticket show the source of purchase and, if it did, whether that alone might alert the authorities in Iraq to the fact that Applicant Z had been "deported"?'

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