Current Issues of UK Asylum Law and Policy by Frances Nicholson & Patrick Twomey

Author:Frances Nicholson & Patrick Twomey [Nicholson, Frances & Twomey, Patrick]
Language: eng
Format: epub
ISBN: 9781138613416
Goodreads: 40831068
Publisher: Routledge
Published: 1998-09-01T00:00:00+00:00

Evidence Strongly Suggestive of Error

The Report presented findings strongly suggestive of error and thus requiring further comment from those who suggested that the procedures were beyond reproach. One example was a lack of consensus in assessments of situations in particular countries. There was a marked divergence of views amongst Special Adjudicators as to whether young male Tamils from Sri Lanka could live free from persecution in Colombo and, if so, whether it was reasonable to expect them to go there rather than seek international protection.18

There was a similar lack of consensus as to the significance of the timing and circumstances of the asylum application or the use of false travel documents for the question of whether or not the appellant was to be believed. Willingness to believe the appellant varied greatly from Special Adjudicator to Special Adjudicator. The decision of the High Court in Kingori,19 in which it was held that where a Special Adjudicator believes nothing that an appellant has said issues of the burden of proof do not arise, provided one example for study. One Special Adjudicator in the sample used Kingori in 90 per cent of his/her 29 determinations, although the IAT has specifically warned against “the over-zealous use of Kingori”.20 Two more used it in over 60 per cent of the appeals they determined and another in over 50 per cent, although the incidence of reliance upon the case in the sample as a whole was only 16 per cent. The case was misused where Special Adjudicators who stated that they did believe some of the appellant’s evidence relied on Kingori to obviate either the need to engage with the evidence on the country of origin or to give reasons for their disbelief of matters central to the asylum application.

Special Adjudicators who doubted any part of the appellant’s account were extremely unlikely to believe the rest of it. In only six per cent of cases in the sample did the Special Adjudicator detect a lie on an issue considered material to the application but go on to believe the appellant on the other material issues. Yet in two out of three of the cases where the Special Adjudicator had done so the appellant was recognised as a refugee. The UNHCR Handbook on the Criteria and Procedures for Determining Refugee Status states that: “[u]ntrue statements by themselves are not 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”.21 The IAT has endorsed this point in the case of Chiver,22 which remained unreported until November 1997 although widely used by representatives. The figure of six per cent of appellants to which this rule had been applied raised questions about whether Special Adjudicators are correctly following this guidance.

Evidence strongly suggestive of error was also given by an examination of the way in which the system functions in practice. This also provided an opportunity to evaluate the 1996 Procedure Rules,23 which provide for more active case management by Special Adjudicators.

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