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The Expert in Asylum and Human Rights Cases: Possibilities for Use and Abuse

Written by Geoffrey Care, 18 May 2015

It may surprise you to hear that it is not at all uncommon for immigration judges to take the view that they have no need of expert evidence – particularly when it concerns the situation in a country from which or through which an asylum seeker has come.

This view may in some cases be influenced by the fact that experts (in either medical or country information spheres) may be difficult to find or too expensive so that the parties (when it is up to the party and not the state) do not produce them.

I hope to dispel the reservation concerning the value of the expert and remind those from the UK of the Protocol for the Instruction of Experts which states "Expert witnesses perform a vital role in civil litigation." As to their cost this is more difficult to resolve – sometimes too difficult.

The point remains however that in every refugee status or related human rights claim, in every jurisdiction the issues to be addressed are basically the same. The Conventions under which a country operates in these matters are similar though the most common one is of course the 1951 Convention along with its 1967 Protocol. The other refugee and human rights conventions such as the (O)AU Charter of 1969 for Africa and the regional Agreements for Latin America including particularly the Cartagena Declaration [1] simply expand their catchment areas. For the purposes of this talk I can deal with those aspects which predominate, or are common, to all claims but the approach can be seen from the Medical Evidence Guideline produced by the International Association of Refugee Law Judges and which can be found on its website. [2]

FACTUAL EVIDENCE

The facts in any claim, whether they relate to a medical condition, or the treatment required for the claimant, or the situation in the country to which s/he may be returned where s/he claims s/he will be subject to persecution, are usually pivotal factors in every decision and vary with every claim and every claimant - no two claims are precisely the same. Of course issues of law arise in most cases but, whilst I would not go so far as to say they are the easiest part of the decision making process, there is usually precedent to guide the judge and a right of appeal if the decision is wrong. On the facts however judges will never know if they got the facts right or wrong - because there is no feedback and, what is worse, there is usually no appeal from a finding of fact (at least this is so in the UK since 2002).

In my own experience I have found that I can only, in the words of Sir Stephen Sedley, a former Lord Justice of Appeal in England Wales "do my honest best to make what are likely to be life or death decisions extracted from shreds of evidence and subjective impressions".

The task is not the same for the judge in the usual courts where the decision (in the UK) is based on the balance of probabilities and upon whatever evidence the parties decide to produce. In asylum and human right cases the decision should be based on a search for the truth [3] and the judge may have to look beyond that which the parties or their representatives lay before the court. [4]

Documentary background information (Country of Origin Information – COI) differs from the expert evidence which we are considering here; it is often the only evidence the judge ever sees about the position in the country in question; to have to rely on that alone, as I hope to show, can seriously limit the chances of reaching a safe decision. This is despite the fact that COI may in part at least be derived from the efforts of the very same people who may be called as experts (the 'crossover' as it is termed)

Nonetheless COIs are a device, along with Country Guidance Case in the UK, in the armoury to help the judge struggle through masses of country data. Both have come in for criticism and both should be approached with caution. Remember it may not be up to date or its provenance may be questionable either unsourced or it has its own agenda, for example a country's own foreign office reports and newspapers are bound to be suspect.

But none of this necessarily makes any document with country background information inherently inadmissible or unreliable and the judge will consider that evidence along with all the other evidence (including that of the claimant) and decide what weight, if any, to attach to it. The judge will also have to draw a conclusion of the claimant's own veracity or reliability (often conjoined as 'credibility' on the evidence as a whole.). [5]

To add to the judge's burden there is a recent illustration of the need for adequate resources to enable a satisfactory evaluation of the factual position on which to base an interpretation of legal provisions and this is to be found in Article 15 (c) of the recast Qualification Directive [6] Article 15(c) defines serious harm as "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

This provision can potentially affect the outcome of many cases dealing with international protection, and has not proved easy for judges to apply with different EU member states reaching divergent interpretations. [7] .

The best avenue to an understanding how a country actually works and how different cultures live in practice is through the use of expert evidence; as to the physical condition of the claimant or the type of treatment required, this can only be supplied through a medical report.

Some countries recruit their judges from as many different cultures, or even want them to abandon their own knowledge .Consciously or unconsciously they will introduce their own knowledge. The judge should not, in this jurisdiction be afraid of doing so, indeed it may be a substitute for evidence an expert may give, more like the idea of a Specialist in Russia. In doing so however the parties must be told what is to be relied on so that the parties can respond and a fair hearing ensured.

For the judge accustomed to operating in the normal courts introducing own knowledge is unthinkable. Given the nature of an asylum hearing however it is more to be accepted.

There are, what I would term (two) myths I must dispose of. Firstly that the immigration judge is a sort of expert by reason of having handled so many cases often from the same part of the world. This is a myth for two reasons: I have already adverted to one, which is that the judge never gets a feedback so as to know whether the conclusion was right or wrong; and secondly the situation in the countries from which refugees routinely come are inherently unstable so situations can change rapidly. A long period of building up a background of country information therefore does not make the judge an expert of fact – at most the judge can learn to avoid pitfalls - this should be very obvious both in our changing world and our limited understanding of the inner workings of countries on the ground.

The judge certainly can be expected to become an expert in law and in how to handle these cases which is most important.

Karl Popper's opinion that 'We need to be constantly aware that the study of the products ( i.e. that which goes into the production) is vastly more important than the study of the production [itself]' [8] reminds us that the value of the ultimate decision depends on the proper approach to the steps taken on the way to that decision.

THE ROLE OF THE EXPERT

The primary role of the expert is to lend substance to the claim and s/he does so from training, experience and knowledge, preferably (though not necessarily) gained by personal exposure in the country itself.

Due to the view taken by some judges, which I referred to at the beginning ( that they do not see the value in the use of the expert – at least on facts) I need to lay out in greater detail how the evidence of an expert can serve in the search for the truth better than COI. The expert links the claimant and his story to the position on the ground in the country at the relevant time – documentary evidence is by its nature general and has no particular person in sight.

The expert (medical or factual) is called as an independent witness to help the court and not to give any direct opinion one way or the other as to the credibility of the claimant, that is the judge's duty on the basis of all the evidence; the expert's duty is to the court, not as partisan to one of the parties- even the one who calls him.

The court expects the expert to be objective, but that is of course relative since it is impossible to expect an expert to have no point of view of his own which could at times come close to bias, whether conscious or not. In the case of a medical person there is likely to have been personal contact with the claimant, either as his/her doctor or in an interview - and I think total detachment seems too much to expect. This the judge must recognise and identify so that a useful evaluation may be made of the evidence the expert provides.

A psychiatrist often must come much closer to his subject in order to be able to offer any meaningful opinion. And, for example, may have strong attitudes toward post traumatic stress disorder; or the anthropologist may have formed clear views about aspects of tribal or cultural practices; or, again, the women's' human rights activist is likely to have a gendered approach to a woman who has been raped or suffered FGM.

There are differing views upon the needs for and the downsides to interviews with the claimant. Medical evidence is usually based on what the claimant says which may have been a written narrative or gained from interviews; especially in psychological situations such interviews may have been over a lengthy period. Some judges think that such a situation inevitably makes the expert biased and, without further investigation as to the nature of this "bias" dismisses his entire evidence. And what of the doctor likewise who must base his report on what the claimant tells him – does this disqualifies such a report? If so there can never be one which is acceptable.

In the case of a psychologist who inevitably must get close to his subject in order to give an opinion of any value is likely to be even more subjective - but this should merely be a matter to be taken into account; and the manner in which the report is given can often indicate the extent to which the evidence can and should be relied on.

It may be true that in some cases an interview may be counterproductive and all that can be said is the situations are so variable that no hard and fast rule can be stated.

Thus the 'agenda' or bias does not necessarily require the judge to reject the evidence –render it inadmissible - any more than single COI documents which disagree with one another will lead to their rejection per se. Read collectively they can often lend considerable weight and enlightenment to the judges' overall understanding of the position.

An expert provides first-hand and up to date knowledge of the matter on which he is giving evidence (either from interviews or close studies of a country) and is likely to have greater insight into the realities in relation to the claimant or someone in the claimants' situation. He should be able to provide information about what the position looks like on the ground which gives the judge a more accurate picture of the realities of the claimant's story. This is an important element in assessing the applicant's credibility and indispensable for any prognostic assessment which may be at the heart of a decision. [9] Some guidance may be necessary on how to approach country evidence as a whole.

Cultural milieu, religious practices, ethnicity, language, geography and topography and history of a country are usually needed, COI can achieve much of this but an anthropologist with experience in the region under scrutiny is usually in a better position to provide more helpful evidence.

A sound assessment of the political scenario or a conflict analysis or the security situation in different parts of the country, in relation to different people, how the national laws, the judicial system, law enforcement affects them and this operates in practice. Additionally the extent to which basic human rights are respected in practice and how the authorities in the country of origin are able and willing to provide protection against human rights violations can all be better related to the claimant as an individual in the report of an expert witness

WHO IS AN EXPERT AND WHO CALLS HIM

Different countries use different terms for the person we in the UK call an expert and we need to be aware of this. For example Russia draws a distinction between an expert, the criteria for which is defined by legislation, and a specialist who could be anyone – a family friend or member of a particular community. Scotland uses expert but the rules are different from England and Wales. The most startling difference is that in Scotland expert evidence can only be given by oral testimony, while in England and Wales the giving of oral evidence is rare. Furthermore, in England and Wales the expert's written report is his evidence-in-chief, whereas in Scotland it serves only to give advance warning of what his evidence will be. In the UK the pre-trial exchange of reports achieves a similar purpose. Thus the expert report in the UK is addressed to the court to whom the expert owes his overriding duty [10]

The practice of whether it is a party or the court to call an expert witness varies from country to country. Where it is the court then the state pays (as in The Netherlands). In others it is up to the party to call one or not; I cannot see why a judge who decides that he cannot reach a satisfactory conclusion without an expert – medical or factual – does not have the right, and perhaps the duty, if he thinks justice requires it, to call an expert at least in refugee status determination cases, given the nature of the enquiry which I have described before; provided he takes steps to ensure the hearing is fair to the parties i.e. they have the opportunity to consider it and question it.

To give some idea of how practices vary from country to country and perhaps therefore a need to have some basic guidance (given the convention under which we all operate is essentially the same) some examples follow.

In South Africa certain facts are 'accepted knowledge' from the media or in country information – or even through the Judge's own investigations. In France experts can be commissioned by a judge but rarely are - the applicant calls them. Again in Australia it is to commission an expert unless it affects an issue or theme of a group of claims or if there are divergent opinions about what's happening in a country( somewhat on the lines of the UK CGCs). Strikingly a minister can give a binding direction that the Judge must give regard to information issued by the Department of Foreign Affairs (even if the papers are not sourced). 'This may be in conflict with better sourced expert opinion but we still have to give preference to country information. In the UK it would be regarded as a fundamental compromise of the independence of a judge. S/ he must be prepared to reject any imposed conclusion to be drawn from a set of facts which he thinks does not fit the case in hand [11].

In Canada written reports are commonplace although occasionally an expert is present in court. The evidence may be a report, an academic journal or article or book and is commissioned by the claimant.

Recognising the difficulties in finding suitable people as experts in different fields, attempts have been made to create registers of experts which can of course be of help, but merely because someone is on a register does not mean that a judge will, after due consideration accept him as such. In the UK the Electronic Information Network (EIN) has created a Directory of Experts [12] and the UNHCR Ref World provides a list of COI experts [13].

Turning to matters to be considered before accepting someone as an expert any assessment will apply basically the same tests namely

1. Who produced the information how and for what purpose

2. Whether the producer is independent and impartial (this has been addressed above also)

3. Whether the producer has established knowledge i.e. qualifications, writings and acceptance in his field; membership of professional bodies, time in the field and so on

4. Whether the information given is couched in a suitably objective tone i.e. without overstatements

5. Whether the scientific methodology has been applied and whether the process has been transparent... [14]

- and any standard opening paragraph to any report should at least include the expertise of the witness and a signed and dated statement, indicating s/he understands his duties as an expert witness.

There are some differences in approach to medical as opposed to country background factual evidence; I have tried to deal with matters which by and large apply to both. However an important provision which relates to medical evidence emphasises the major requirements of this type of expert evidence (though the six markers set out below are not completely irrelevant in other expert evidence) .The Istanbul Protocol [15] in paragraphs 103 and 104 provides guidance in medical examination, assessment of the need for treatment and a psychological evaluation suggesting six questions which any medical person should ask and the judge look for

1. Consistency in physical and psychological findings

2. The physical conditions in the clinical picture

3. The claimants own culture and social context and perhaps he can demonstrate what can be expected or typical reactions to extreme stress

4. In relation to torture time frames are important

5. Any other stressful factors and their impact

6. Does the clinical picture suggest an allegation of torture as true or false

As to some aspects linking the country to the claimant's story the anthropologist can be invaluable in contextualising the evidence and thus making an assessment of credibility – by the judge not the expert - that less problematic. However in my experience in Africa even an expert who is native to the region can seriously misrepresent the position even in such matters as language usage as indicating the origins of a person.

An additional matter which arises in expert's reports on whatever subject and that is the question over the use of a report which has been given for the purposes of another, usually earlier, case. Primarily it should not be used without the consent of the producer but even then its relevance to the case in hand, whether conditions have changed and so on often render it of little use.

Safeguards can be found in the guidelines I have mentioned and in other guidelines produced with much thought – but they are only guidelines.

WEIGHT

I have drawn attention to distinctions between inadmissibility – wholesale rejection, and something less – acceptance but subject to an evaluation of the weight to be attached to the evidence.

Once someone is qualified as an expert, using the criteria suggested, it implies that their evidence will be given the appropriate weight in the proceedings. Their opinions cannot be ignored and may be crucial in a determination of the claim to refugee protection. If the decision-makers wish to discard their opinion evidence then they are obliged to say why.

For instance, if the opinion evidence of the expert contradicts the overwhelming evidence from various reputable sources then, on balance, one must decide whether the expert witness's evidence outweighs the combined effect of all the others. Likewise, if there is no other evidence presented save the qualified expert's evidence, then, does the decision-maker simply adopt the opinions of the qualified expert? How does one properly assess and weigh the contradictory evidence presented by two qualified experts?

COMMON PROBLEMS AND SOME POSSIBLE SOLUTIONS

I have alluded to some of the problem areas a judge will encounter in the fact finding (and how to deal with them) such as the use of one's own knowledge earlier reports.

As to the availability and cost of experts, where the judge considers expert evidence as necessary but none is available, for one reason or another, one possibility is to widen his search for documentary evidence, even to sources outside his own country and, perhaps be more ready to give the claimant the benefit of the doubt.

Where there are conflicts which cannot be reconciled between different parts of the evidence consideration should be given to cases in other courts where the same or similar evidence has been either accepted or criticised. Guidelines, practice and policies in other jurisdictions or the European Court of Human Rights may sometimes assist to resolve an inconsistency. The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and 1967 Protocol UNHCR paragraphs 203 and 204 are of important help.

If the case hinges on membership of a particular social group an expert may be considered too close to the claimant for his evidence to be considered independent. Perhaps the only way to overcome this is accept it but give careful thought to how much weight it can be afforded.

CONCLUSION

At the end of the day the judge must reach a decision based upon a holistic view of the evidence as a whole, doing the best he can to resolve inconsistences and remember that the most experienced judges, such Lord Bingham, are well aware of their limitations when it comes to deciding whether a party is telling the truth or not.

[1] 1001 UNTS 45 . Cartagena Declaration 19-22 November 1974 see also para 20-23 also Handbook on Procedures and Criteria for Determining Refugee Status UNHCR Jan 1992 (The Handbook)

[2] See www.iarlj.org/medicalevidenceguidelines

[3] Per Sedley LJ in R v SSHD ex parte Shah (1997) Imm A R 1 at 145,157

[4] See Ravichandran and Karanakaran [2000] 3 All ER 449 (CA).also the -para 195-205 esp. para 197

[5] HE DRC Credibility and Psychiatry Reports GG [2004] UKIAT 00321

[6] Council Directive 2011/95/EU A judicial analysis of Article 15(c) of the Qualification Directive and international protection issues John Kelly, EIN, 02 April 2015 ISBN 978-92-9243-364-2 doi:10.2847/6607

[7] The existence of an armed conflict is a necessary but not a sufficient condition for Article 15(c) to be engaged. Court of Appeal (UK), QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ. 620, para 35 Diakite Elgafaji CJEU (Grand Chamber), judgment of 17 February 2009, Case C-465/07, Meki Elgafaji and Noor Elgafaji v Staatssecretaris van Justitie

[8] Objective Knowledge: An Evolutionary Approach' OUP (1979) p 114 from a lecture 14 August 1967

[9] There has been much work done on country of origin information (COI), including, e.g., Country Information in Asylum Procedures – Quality as a Legal Requirement in the EU by Gábor Gyulai, published by the Hungarian Helsinki Committee (2007) and the composition of the Judicial Criteria for Assessing Country of Origin Information (CoI): A Checklist, compiled by the IARLJ's COI-CG Working Party. These however have primarily addressed the production and assessment of documentary COI. It is now proposed to extend this qualitative asessment to include expert country information i.e. that provided by individual experts, written or oral, to refugee status determination bodies.

[10] See CPR Part 35 Rules of the Supreme Court for England and Wales and Protocol for the Instruction of Experts to give evidence in civil claims

[11] Instructions to Immigration Officers given the force of law under Section 8 Immigration (Treatment of Claimants) Act 2004

[12] www.ein.org.uk

[13] www.coi-training.net/content/doc/en-COI

[14] The Medical Guidelines produced by the IARLJ seen ii written reports are commonplace although occasionally an expert is present in court. xiv The IARLJ are presently considering Guidelines for expert witness on fact on a similar basis to their Guideline on Medical Evidence

[15] http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf

About the author: Geoffrey Care is a Trustee of EIN and a former Chairman of the UK Immigration Appeals Tribunal and a former High Court Judge in Zambia.

This lecture was originally recorded for the Refugee Law Observatory and is reproduced here with permission and thanks.
Any views expressed are those of the author and do not necessarily represent the views of EIN