Lies and damned lies: the standard of proof in asylum cases

26 November 2010 by Rosalind English

MA (Somalia) (Respondent) v Secretary of State for the Home Department (Appellant) [2010] UKSC 49 – read judgment (press summary in earlier post)

The Supreme Court has ruled that where the Asylum and Immigration Tribunal (AIT) had directed itself correctly as to the impact of an asylum seeker’s lies on his claim, the Court of Appeal should have been very slow to find that it had gone on to apply that direction incorrectly.

This case brings to the fore the very difficult task facing immigration judges trying to determine the veracity of claimants’ testimony in asylum cases. The Supreme Court declined to express a conclusive view on the standard of proof in this area, a point which was acknowledged to be “both difficult and important”. It was left for an authoritative decision by that Court – but when such an occasion arise? The importance of settling this point cannot be overstated. At the moment the range of tests for persecution on return is dizzyingly confusing:

• Refugee Convention – a reasonable degree of likelihood for f (R v Secretary of State for the Home Department, ex p Sivakumaran [1988] AC 958)
• Article 3 ECHR -“substantial grounds” (Vilvarajah v UK (1991) 14 EHRR 248)
• Extradition – balance of probabilities for past and existing facts (Fernandez v Government of Singapore [1971] 1 WLR 987)
• Extradition – degree of likelihood for future speculation (Lord Diplock, Fernandez para 994)

GM (Eritrea) v Secretary of State for the Home Department is consistent with the Strasbourg Court in Saadi v Italy (2008) in suggesting that it suffices merely to establish connection with minority groups suffices, but the approach of the domestic courts in more recent cases suggests that the ascertainment of past facts may require for “substantial grounds” or “serious reasons”.

All this casts a great deal more mud than light on what the Supreme Court itself acknowledges to be the “both difficult and important” issue of the correct evidential threshold.  Sir John Dyson, giving the judgment of the Court, observed that there is no practical difference between the various tests outlined above, but to a “hard pressed immigration judge” the temptation must be to go with the most vociferous claim, no matter how unsubstantiated. In criminal cases, the prosecution has to prove beyond reasonable doubt that the defendant was behind the deed. In asylum cases the claimant has to show that a real risk of treatment that crosses the high threshold of Article 3. In both procedures, the Lucas direction should be borne in mind:

people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family….(R v Lucas [1981] QB 720)

The problem is that the analogy with the criminal system ends just there. In the immigration courts we have desperate testimonies on one side, and generic country reports on the other, both of which are essentially unverifiable. Arrivals from a failed state like Somalia have the benefit of the doubt, which is why it is the nationality of choice for applicants for asylum. According to the annual report of the Office of the Refugee Applications Commissioner, in 2009 well over half of asylum seekers who claimed to from Somalia were found to be lying about their state of origin. On closer examination in turned out that these asylum seekers were in fact from a variety of other countries which are far more stable, including Tanzania, Kenya, Yemen, Ethiopia and Djibouti. But the paradigm situation is where the evidence about the claimant’s state of embarkation is undisputed, but virtually everything else he or she says is probably fabricated, a case where,  in the words of Laws LJ:

(i) the claimant’s account is rejected as wholly incredible (it is riddled with contradictions and the tribunal is left in a state of being unable to believe anything that the claimant has said); but (ii) there is undisputed objective evidence about conditions in the relevant country which goes a long way to making good the shortcomings in the claimant’s own evidence.

If the criminal law template is applied, the three propositions in (ii) become highly contestable:
“undisputed objective evidence” – in country evidence is rarely objective, and the disputation is political/diplomatic, not forensic
“making good..etc” –  to put it at its lowest, the claimant’s evidence in court should be tested to the same standard of that as a claimant in civil proceedings – balance of probabilities. This applies to speculative future risk. But when applied to past or existing fact, the burden is greater – as the case law demonstrates. Why should “the shortcomings in the claimant’s own evidence” be made up by anything other than the kind of independently verifiable evidence, such as alibi, character and corroboration, all of which are required in criminal proceedings?

What Laws LJ was saying at para 54 [of the GM (Eritrea) case] was that, where a claimant tells lies ona central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong. It is only evidence of that kind which will be sufficient to counteract the negative pull of the lie.

There is certainly no easy way of determining the relationship between lack of credibility and assessment of risk; appellants who appeal to the AIT for refugee or asylum, are, soi disant the Supreme Court, frequently tempted by the “extremely high” stakes to give fabricated evidence to bolster their case –

The consequences of failure for those whose cases are genuine are usually grave.

For these reasons, it is said, it is “not surprising” (in other words, understandable) that appellants frequently lie to advance their petition.

This is of course incontestable but a modus operandi has been worked out in the criminal courts that should be  arguably be applied in the immigration context: the stakes are high, yes, but they are too for someone facing imprisonment, loss of livelihood, family, and anything else that goes with a criminal sentence;  falsehoods are the norm, the adversarial system is there to test and expose them.  It is crucial that the sort of evidential fudge characteristic of proceedings in the immigration courts is replaced by a more transparent system which will deal realistically with the potential demand – created by instruments of our own making, the Refugee Convention and Article 3 ECHR – from an imponderable number of applicants.

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