Earlier this month, following the Irish refugee council’s report
‘Difficult to believe’, a conference was held on Credibility in asylum claims.
Professor Guy S. Goodwin Gill a
senior research fellow and professor of International Refugee law at Oxford
University was the keynote speaker.
He spoke about the protection of refugees as “a matter of international
obligation”, stressing the importance of “a fair and efficient procedure” in
the determination of asylum claims. He highlighted that the 1951 Refugee Convention
says nothing about procedures or process leaving its implementation up to the
states themselves.
He described how a fair process must include certain essential elements
such as a full hearing; appropriate evidential standards; evidence-based
decisions and the requirement of a review or appeal.
In terms of establishing the risk of persecution he noted the problems
with the onus being placed solely on the applicant and said practical
considerations impose a duty on the decision maker.
In discussing the decision in Rustamov
v Russia 2012, the professor asked
“what must asylum seekers show?”
In this case, the Court
pointed out that requesting an applicant
“to produce "indisputable" evidence of a risk of ill-treatment in the
requesting country would be tantamount to asking him to prove the existence of
a future event, which is impossible, and would place a clearly disproportionate
burden on him.”
The professor asserted that “The Strasbourg court is clearly sending
signals about the process of decision-making.”
He also noted that the appreciation of fear of persecution is based on
an objective situation and said that the decision-making process requires us to
look at a series of variables making it unpredictable.
The professor noted that decision makers can’t ever have absolute
confidence in their decisions but insisted that a well established process anchored
in International law is needed.
In terms of personal credibility, he noted that although asylum
applicants have a duty to tell the truth, there is a duty on decision makers
also. He claimed that too little attention is paid to assessment and more attention
needed to be paid to form for example early legal assistance, affirming that “this
is what experience has taught us”.
The professor said he was pleased to read the IRC report and agreed that
the system is not working and is not in compliance with international
obligation. He described our system as “a ready-made case-study of what not to
do”.
He highlighted how medical evidence is not given any weight in Ireland. In
contrast he gave an example of a UK Court of Appeal case in which the applicant
was totally lacking in credibility but succeeded on the basis of medical
evidence alone.
The professor also discussed decision-makers assumptions, taking for
example the claim that you can’t through an airport on a fake passport.
In terms of Appeal and review Professor Goodwin Gill said that it is not
enough to say “I do not believe” and described the system as a “world of
inferences”. He noted that almost universally a late submission equals a lack
of credibility.
He expressed that what we want is a picture of the individual in
context, concluding that “The individual needs to be brought back into the
picture, back into the realm of international law.”
Justice Catherine McGuiness, who was chairing this discussion added that
the “the narrow concept of judicial review opens itself up to a culture of
disbelief.”
The following speaker was Professor Rosemary Byrne an associate professor of International and Human rights law and the
Director of the centre for post-conflict justice at Trinity. Professor
Byrne said that a “serious
reconsideration of the system was needed” and that there was reason for
significant concern over the low recognition rate here.
She discussed asylum testimony as human rights testimony and noted that
“the nature of the asylum seeker as a victim has an impact on the way testimony
is presented”.
She expressed the importance of rethinking how we approach credibility.
She mentioned Canadian studies that highlight a “presumptive scepticism”
in asylum claims showing that unstated assumptions are driving the process.
She mentioned in particular the problems of the unstated assumption that
the motivations of asylum seekers are to deceive the system.
Following this Dr. Jane Herlihy, Executive
Director of the centre for the study of Emotion and the Law (CSEL) gave a
presentation on psychological evidence in asylum claims. She focused
particularly on the diagnosis of post traumatic stress disorder and emphasised
that the absence of a diagnosis does not disprove a history of trauma just as
the presence of a diagnosis is not evidence of trauma.
Fadela Novak-Irons, the UNHCR
Policy Officer for Europe, described the importance of quality in decision
making and expressed how credibility was at the core of this process. She
highlighted the various challenges faced by the system such as decisions under
conditions of uncertainty; Absence of witnesses; General nature of country of
origin; human behaviour; the role of memory as well as trauma and
vulnerabilities.
She went on to discuss the CREDO project currently been undertaken by
the UNHCR and described it as taking a multidisciplinary approach to these
issues.
The aim is for the UNHCR to launch new credibility guidelines by 2014.
Brophy Solicitors
26.11.12
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