Abstracts
from the paper given by Jonathan Ensor at the Conference
'On Asylum, Migration and Human Rights' of the University
of Durham & The Medical Foundation for the Care of Victims
of Torture (Newcastle - u - Tyne, Sept 2006
)
Credibility
finding is the point in the asylum process at which an
immigration officer, immigration judge or other deciding
authority makes an assessment of whether an asylum seeker's
story is to be believed. With section 8 of the Asylum
and Immigration (Treatment of Claimants, etc.) Act 2004
the government has for the first time stepped into this
process, requiring decision makers to take certain behaviours
or actions to be 'damaging to the claimant's credibility'.
This briefing presents a summary of research undertaken
by the IAS Research and Information Unit into the assumptions
that underpin section 8, the full results of which are
reported in Tottel's Immigration, Nationality and Asylum
Law, volume 20(2) 2006.
IAS
considers section 8 to be a poorly conceived and damaging
intervention. It has created an environment in which decision
makers are challenged to maintain objectivity in a process
of credibility finding that looks only for reasons for
doubt. However, this research seeks to empower decision
makers and asylum seeker's representatives to move beyond
what we have termed the 'agenda of disbelief' set
out by section 8 and to consider the experiences faced
by those who travel to the UK to seek asylum. Extensive
country information and asylum research demonstrates the
complete failure of section 8 to take account of the complex
realities faced by those fleeing persecution. Indeed,
the behaviours shown by evidence to be indicative of a
persecutory experience are exactly those that section
8 presumes to suggest deceit. This research thus reveals
the depth of the misconceptions behind section 8 and the
breadth of reasons why asylum seekers can and should be
believed in the face of it.
Each of the examples in
this paper demonstrate that section 8 was drafted with
no attention to the persecutory or flight experience.
It seeks evidence of deceit through an exclusive focus
on behaviour outside the country of persecution whilst
ignoring the underlying trauma of forced migration. However,
an awareness and understanding of the evidence documenting
the experiences of asylum seekers can also be used to
support a claimant faced with section 8. In nearly all
of the provisions within section 8, the legislation allows
for a 'reasonable excuse' to be adduced in defence of
behaviour that would otherwise be taken as damaging to
credibility.
Example 1: S8(4) Failure to claim in a safe country.
The safe third country principle
is founded on the assumption that an individual fleeing persecution can be reasonably
expected to claim asylum in the first safe territory that they arrive at outside
of their home country - and to simplify matters, section 8 requires the government
to maintain a list of those territories that an asylum seeker should consider
to be a safe haven. However, many asylum seekers are forced to resort to paying
'agents' to arrange their escape, resulting in a diminished capacity to determine,
control or even influence their final destination. As UNHCR have noted, decisions
are made on behalf of asylum seekers by smugglers 'into whose hands they have
entrusted their destiny for lack of other viable options'.
Significantly, the principle
of non-refoulement is put at risk through this provision. Non refoulement is
at the heart of effective refugee protection and requires that any process of
return or deportation of asylum seekers must be constrained by rigorous safeguards
to prevent an individual from encountering persecution. However, in employing
the safe third country approach, governments place asylum seekers in a situation
that has unpredictable consequences. The states that find themselves on the
borders of Europe have their own safe third country policies, placing those
who do seek asylum at risk of further deportation. This practice of repeated
removals to third countries gives rise to the concept of 'chain refoulement'
in which the country at the start of the chain - the first country in which
asylum is sought - can have little or no realistic prospect of foreseeing (and
zero prospect of controlling) where the asylum seeker will ultimately end up.
The prospect of chain refoulement
from 'safe' states is a real one. Italy and Libya have an arrangement dating
to August 2004 whereby asylum seekers who enter Italy having travelled through
Libya are returned to Libya, regardless of their country of origin. Spain, moreover,
has readmission agreements with Algeria, Guinea Bissau, Morocco, Mauritania
and Nigeria. However, with section 8 the government has gone further than simply
being in an unseemly rush to avoid accepting asylum claims. Section 8 demands
that an asylum seeker claiming in the UK who has previously failed to take advantage
of a safe third country is to be considered lacking in credibility. The government
therefore considers it reasonable that a potential refugee should become a failed
asylum seeker wholly or partly on this basis. This seemingly small step is in
fact a quantum leap in the application of the safe third country principle.
No longer can this be considered burden sharing: the approach is not designed
to transfer the claim to another territory. A finding of 'failure by the claimant
to take advantage of a reasonable opportunity to make an asylum claim or human
rights claim while in a safe country' is to be taken into account 'as damaging
the claimant's credibility'. Return of an asylum seeker who has failed for this
reason is to the country of origin - which is also the country in which persecution
is feared.
Examplke
2: S8(3)a-d Destruction or failure to produce travel documents
There is significant evidence
that country conditions and the characteristics of the claimant can offer a
'reasonable explanation' for the behaviours proscribed in section 8(3)a-d. Examples
abound in which individuals lack real access to passports: in Tajikistan, those
persons 'sentenced to deprivation of liberty with a compulsory work assignment'
have their passport removed; in Iran, women are required to have written permission
from their father or husband to apply for a passport; in Eritrea Jehovahs Witnesses
are often denied passports, exit visas and identity cards ; whilst in Somalia,
the absence of a national government means that most citizens are not able to
acquire international travel documents. In all these cases, and many more, practitioners
should draw attention to the country evidence that supports the reasonableness
of a failure to produce travel documents.
Example
3: S8(3)e, (5) and (6) Failure to immediately claim asylum
or to answer questions
Following research into
the experiences of asylum seekers in Australia, Amnesty International conclude
that there are a wide variety of experiences that may lead to significant delays
or failure to claim protection. These include:
- Fear (an instinctive response
to overwhelming fear is to try to keep a low profile and not draw attention
to oneself, as well as fear of authorities and government institutions due to
traumatic experiences in their country of origin)
- Unfamiliarity with the new environment and system
- Language difficulties
- Mental health issues (for example Post Traumatic Stress Disorder)
- Lack of knowledge of the protection system
- Misinformation from well-meaning family or community members
- The need to seek asylum arises after they have already been in [the country]
for some time (particularly for those on a student visa)
- Applicants may lodge an application for protection as a last resort after
waiting for as long as possible for the situation in their home country to improve
so they might be able to return home.
When questioned or interviewed,
the Act requires that all questions that are put by the immigration official
are answered by the claimant. However, as Physicians for Human Rights have reported,
'[a]n asylum seeker may find recounting events to an immigration officer, immediately
upon arrival after a long and difficult trip and in a foreign language, often
without assistance, to be particularly stressful.' Other research indicates
the extent to which the physical and psychological state of an individual affects
memory. Medical practitioners note that weight loss and malnutrition, minor
head injury, stress, post traumatic stress disorder (PTSD), sleep loss, depression
and chronic pain can all lead to errors in recall or omissions when recounting
events. Gender and victims of sexual violence are also well documented as presenting
barriers to a claimants ability to give a full account of their experiences.
Worryingly, the reluctance of decision makers to accept that agents may confiscate
travel documents, and the inappropriate labelling of third countries as 'safe',
both suggest that the agenda of disbelief inherent in section 8 has influenced
the mindset of decision makers. These reasons for denying credibility are even
more poorly conceived than those contained within the provisions of the legislation
- indicating that the relentlessly negative approach to credibility imposed
by section 8 is by itself having influence on asylum decisions.
Given the manifold problems
with section 8, the aim of this paper is to help redraw the power lines between
legislators and asylum seeker, to support decision makers' independence and
to empower practitioners to overcome the pernicious effect of ill-conceived
legislation. Those involved in the asylum process are encouraged to move beyond
the agenda of disbelief set out in section 8, and examine instead the reality
of the experiences faced by those who travel to the UK to seek asylum. Specifically,
the evidence presented in this paper demonstrates the huge breadth of 'reasonable
explanations' that not only reveal why asylum claimants should be believed despite
section 8, but also suggest that section 8 is so poorly conceived in principle
that it should be set aside in practice.
Dr
Jonathan Ensor
Senior
Research Officer, Research and Information Unit,Immigration
Advisory Service,London
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