Why are asylum seekers so often disbelieved? How is it that clinical evidence of torture is oftentimes rejected on the grounds of ‘credibility’? Why has the UK judged so many Tamil asylum seekers not to be at risk, forcibly returning them to Sri Lanka where they have gone on to be tortured?

All who are involved in asylum work wrestle with some or all of these questions. Professor Anthony Good, Professor Emeritus in Social Anthropology at the University of Edinburgh, has sought to provide answers through conducting analysis of Home Office policy documents and guidance for asylum caseworkers. Professor Good presented his findings at a MEDACT conference last month. Drawing heavily upon his excellent analysis, we follow suit in examining the Home Office guidance and policy materials. Analysis of these documents goes far to explaining why the Home Office has rejected asylum claims from Sri Lanka despite the applicants demonstrably being at risk.

Tamils Against Genocide, made a submission to the UN Committee Against Torture for its 5^th periodic review of the UK. In that submission we expressed concern regarding the UKBA’s record to date and its methodology. We noted:

• A tendency to dismiss torture claims and a refusal to give any weight to the presence of scarring by implying the wounds could have been self-inflicted in order to improve chances of securing asylum. Such claims are made without recourse to evidence. They display a distinct lack of sensitivity for the survivors of torture.
• The selective use of background material. Although corruption is endemic in Sri Lankan society, a fact accepted by the British High Commission, refusal letters frequently reason along the following lines, “It is therefore considered that if you were of any significant interest to the authorities, you would not have been able to depart from the airport. Therefore, this part of your account is not accepted.”
• A trend to backwards reasoning. For example, questioning the applicant on a factual point to only dismiss the applicant’s account since “the details could have been found on the Internet.”
• A tendency to extrapolate from what is judged ‘reasonable’ or ‘sensible’ and asylum applicants’ claims then judged against this artificial and subjective benchmark.

The above were observations based purely on the many asylum cases that TAG has had access to and/or been involved in, in various capacities. Appalled by the culture of disbelief that we had encountered, we recommended an inquiry be conducted into UKBA policy and processes to combat the methodological issues identified. What was particularly striking in Professor Good’s presentation was that the UK Border Agency’s culture of disbelief and cynicism is embedded in the law, policy and guidance given to asylum decision makers. The crux of the problem is the thorny issue of credibility.

The United Nations High Commissioner for Refugees (UNHCR) Handbook states that, “There may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” “Good reasons to the contrary” include ensuring that an applicant’s account does not run contrary to the generally known facts. The usual process in deciding asylum applications consists of identifying the credibility of the evidence, establishing its probative value and then examining whether the burden of proof has been discharged.

The UKBA’s handbook, “Considering asylum claims and assessing credibility” sets out an assessment process for determining credibility. The first step is to assess the internal credibility of the evidence – i.e. the applicant’s own evidence – checking for internal consistency. The Home Office tend to challenge the internal credibility by examining the applicant, repeatedly discussing the same issues in order to identify inconsistencies. The second step is to assess the external credibility of the evidence. This involves checks to see whether the evidence is contextually consistent with known facts and Country of Origin Information (“COI”).

Accepting for the purposes of this blog only, that the COI reports are balanced, objective and accurately reflect ground truth, once the internal and external credibility assessments have been made, one would hope that the Home Office asylum case worker would then be in a position to grant asylum to those who have passed the credibility threshold identified and who are at risk. Not so, section 8 of the Asylum and Immigration (Treatment of Claimants, ect.) Act 2004 lists the kinds of behaviour which can incur an adverse credibility reading, including:

• Failure to produce a passport on request
• Destruction, alternation or disposal of a passport or a ticket
• Failure without reasonable explanation to answer a question
• Failure to make an asylum claim whilst in a safe country, or before being notified of an immigration decision or before being arrested under an immigration provision.

All such activities and more, as detailed at section 8 of the Asylum and Immigration Act, have the potential to damage an applicant’s credibility.

A negative credibility finding under section 8 in turn impacts upon the assessment of the credibility of the evidence. Professor Good in his presentation quoted directly from a “Reasons for Refusal letter” to illustrate this point, “In light of the objective information, it is accepted that arbitrary arrests, detentions and ‘disappearances’ do occur in Sri Lanka, however in light of your credibility having been damaged and the findings above, it follows that this part of your claim is not accepted.” A negative credibility finding on a passport related issue directly impacts upon the assessment of substantive matters, with the result that asylum seekers with well-founded fears of persecution are refused asylum and risk being forcibly deported.

Section 8’s reach and impact is great. Dependent on the way in which they managed to flee, those who seek asylum, inherently vulnerable people, are faced with incredulity. The guidance is flawed, the consequences horrible to contemplate.

TAG Litigation Team

Tamil Against Genocide, Europe