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Tribunal gives guidance on assessing truthfulness in asylum cases


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In KB & AH (credibility-structured approach) Pakistan [2017] UKUT 491 (IAC) the tribunal declined to give updated country guidance on the situation of Ahmadis in Pakistan because the case apparently turned on its own facts. This is often the case where the facts favour the appellant; where the facts favour the Home Office a case often seems to be of more general interest.

The instinct to instruct others proved irresistible, however, and the tribunal instead decided to give even wider, more generic guidance on assessing credibility in general. This was despite the Home Office, represented by the respected Mr Wilding, conceding that the only remaining issue in the case was plausibility, the evidence being internally consistent and detailed as well as externally consistent with country information.

The official headnote:

1.  The ‘Credibility Indicators’ identified in the Home Office Asylum Policy Instruction, Assessing credibility and refugee status Version 3.0, 6 January 2015 (which can be summarised as comprising sufficiency of detail; internal consistency; external consistency; and plausibility), provide a helpful framework within which to conduct a credibility assessment. They facilitate a more structured approach apt to help judges avoid the temptation to look at the evidence in a one-dimensional way or to focus in an ad hoc way solely on whichever indicator or factor appears foremost or opportune.

2.  However, any reference to a structured approach in relation to the subject matter of credibility assessment must carry a number of important (interrelated) caveats, among which are the following:

-the aforementioned indicators are merely indicators, not necessary conditions;

-they are not an exhaustive list;

-assessment of credibility being a highly fact-sensitive affair, their main role is to help make sure, where relevant, that the evidence is considered in a number of well-recognised respects;

-making use of these indicators is not a substitute for the requirement to consider the evidence as a whole or ‘in the round’;

-it remains that credibility assessment is only part of evidence assessment and, as Lord Dyson reminded decision-makers in MA (Somalia) v Secretary of State for the Home Department[2010] UKSC 49 at [33], ‘the significance of lies will vary from case to case’;

-in the UK context, use of such a structured approach must take place within the framework of EU law governing credibility assessment, Article 4 of the Qualification Directive in particular; and,

-also in the context of UK law, decision-makers (including judges) by s. 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are statutorily obliged to consider certain types of behaviour as damaging to credibility.

3.  Consideration of credibility in light of such indicators, if approached subject to the aforementioned caveats, is a valid and useful exercise, based squarely on existing learning.

It is good to see the venerable case of HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 getting a mention. In that case Neuberger LJ, as he then was, cautioned against the use of plausibility in assessing asylum claims and drew a very important distinction between plausibility and probability.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.