The Asylum Research Centre (ARC) is an internationally recognised source of expertise that works to raise standards in the production of Country of Origin Information used by decision makers in asylum processes. Garden Court Chambers' legal researcher, David Neale, is its board member. On 21 October 2020 it published its Comparative Analysis of U.S Department of State Country Reports on Human Rights Practices (2016-2019) ("USSD reports").
This culminates three years of research comparing the annual USSD reports' assessment of the human rights situation in Eritrea, Iran, Iraq, Pakistan and Sudan in 2016, the last year of President Obama's administration, with subsequent reports produced by President Trump's administration covering events in 2017, 2018 and 2019.
The ARC has identified notable content changes which were not consistent with the situation on the ground as documented by other sources and have the effect of downplaying the seriousness of the human rights situations in these countries.
The findings will be of interest to asylum and extradition lawyers, given that USSD reports are often cited by claimants, the Secretary of State for the Home Department and prosecuting authorities, and inform decision makers as to whether claims for protection are well founded. As cautioned by Liz Williams, co-director of ARC in the Guardian last month, "these omissions have the effect of denying the existence of rights or abuses and may result in certain types of asylum claims being dismissed if the US Department of State reports are relied upon in isolation."
According to the US State Department website, USSD reports intend to "cover internationally recognized individual, civil, political and worker rights, as set forth in the Universal Declaration of Human Rights and other international agreements." They are produced by staff members of the US Bureau of Democracy, Human Rights and Labor and US embassies around the world. More information about the production of USSD reports, and the intention and methodology behind the ARC's research, can be found here.
There is a general view, especially at the immigration tribunal level, that the assessment of country conditions in USSD reports is reliable. Indeed, they are often cited by the Upper Tribunal in authoritative country guidance determinations (see e.g. LH and IP (gay men: risk) Sri Lanka CG  UKUT 00073 (IAC)). Their reliability is not without its obvious caveats.
In NA v United Kingdom  ECHR 616, the European Court of Human Rights stated the following as regards the weight to be attached to materials originating from apparently "reliable and objective sources" from non-Contracting states, such as USSD reports, in the context of a claim under Article 3 ECHR:
"120. In assessing such material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations."
In TK (Tamils – LP updated) Sri Lanka CG  UKAIT 00049, a panel constituted of Lord Justice Carnwath, Senior President of Tribunals (as he then was), Mr CMG Ockelton, then Deputy President of the Asylum and Immigration Tribunal, and Senior Immigration Judge Storey, provided the following headnote at (d):
"The practice of immigration judges and others of referring to "objective country evidence", when all they mean is background country evidence, should cease, since it obscures the need for the decision-maker to subject such evidence to scrutiny to see if it conforms to legal standards for assessing the quality of Country of Origin Information (COI) as identified by the ECtHR in NA and as set out in the Refugee Qualification Directive (2004/83/EC), Article 4(1), 4(3)(a), 4(5),4(5)(a) and 4(5)(c) and the Procedures Directive (2005)85/EC), Article 8(2)(a)and (b) and 8(3)."
In MD (Ivory Coast) v SSHD  EWCA Civ 989, Lord Justice Sullivan noted that background information from government sources "is not simply to be taken at face value" and "must be assessed in light of all the relevant factors".
USSD reports have received criticism from US courts on the basis that their purview, methodology and conclusions might be tainted by US government foreign policy interests. In Gramatikov v INS (128 F.3d 619 (1997) the United States Court of Appeal for the Seventh Circuit stated:
"Routinely in these cases the immigration service requests an evaluation by the State Department of the likelihood of persecution if asylum is denied. Routinely the State Department advises the service that the formerly communist nations, having abandoned communism, no longer persecute anticommunists; and having abandoned atheism along with the other tenets of communism, no longer persecute religious people either. The advice of the State Department is not binding, either on the service or on the courts; there is perennial concern that the Department softpedals human rights violations by countries that the United States wants to have good relations with."
In its September 2003 report, Holding the Line: A Critique of the Department of State's Annual Country Reports on Human Rights Practices, the US Lawyers Committee for Human Rights (now Human Rights First) noted that following September 11, various countries around the world had enacted new laws in the 'war on terror' in ways that infringed on human rights and civil liberties. It suggested that the quality of USSD reports may have been undermined by the express instruction to US embassy personnel responsible for drafting them that "[a]ctions by governments taken at the request of the United States or with the expressed support of the United States should not be included in the report."
More recently, in May 2018, Amnesty International USA reported that its country specialists had reviewed the latest USSD reports and raised concerns that the Trump administration had engaged in an "unprecedented and alarming level of politicized editing". One of the many examples cited was that there had been "no information about the dangers that Salvadorians who are deported from the United States face back in their home communities", which Amnesty cautions "derails understanding of the impact US policies have on El Salvador and the human rights consequences they bring." Concerns were also raised in relation to the way USSD reports dealt with the human rights situations in countries including Bolivia, the Dominican Republic, Saudi Arabia, Israel and the Occupied Palestinian Territories and China.
The ARC's research is noteworthy in that it comprehensively analyses USSD reports over four years, offering a comparison across the Obama and Trump administrations. The principal issues it identifies relate to women's rights, civil and political rights, and issues relating to LGBTI persons. Examples include:
• All reports under the Trump administration removed the Reproductive Rights section and replaced it with Coercion in Population Control thereby omitting information related to accessing reproductive rights, contraception and pre and post-natal healthcare.
• Violence experienced by LGBTI persons, organisations and activists, as well as societal discrimination and abuse affecting LGBTI persons has been omitted from the Iraq reports, and the latter issue from the Iran reports.
• The Iran reports neglected to document the use of prolonged solitary confinement and sexual humiliation as reported methods of torture; and omitted continued legal restrictions on women's economic, social, political, academic, and cultural rights.
• The Iraq reports no longer mentioned the occurrence of torture in prisons operated in the Kurdistan Region of Iraq or that sexual and gender-based violence was underreported.
• The Pakistan reports failed to mention the end of the moratorium on capital punishment; concerns with observance of due process; the execution of individuals who were under the age 18 when they allegedly committed the crime; and women's lack of awareness of legal protections and their inability to access legal representation.
• The 2019 Eritrea report no longer mentioned the widespread sexual violence against women in military training camps that amounted to torture and the forced domestic service of women and girls in training camps that amounted to sexual slavery.
• The way human rights issues were presented in the 2019 Sudan report suggested that abuses such as arbitrary killings by the security forces; disappearances; the detention of peaceful protesters; the failure to properly investigate alleged mistreatment; and traditional legal practices discriminating against women only occurred in the Bashir-era, despite other sources documenting their continued occurrence.
• Distancing language was also inserted into all reports which could be read to imply an improvement in the situation, such as "[d]etention conditions reportedly remained harsh, leading to serious health damage and in some instances death" in the Eritrea report.
The analysis has received praise from the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), the US Center for Reproductive Rights, the Center for Gender & Refugee Studies (CGRS), the Country of Origin (COI) Department of the Dutch Council for Refugees, Freedom from Torture, the UK Lesbian and Gay Immigration Group (UKLGIG) and Oxfam America.
Practitioners will of course be mindful that the US is currently entering a new political chapter, as Biden declares a presidential victory. However given that criticisms have been levelled against USSD reports from judges and the international community since well before Trump first ran for presidency, asylum lawyers are urged to remain vigilant.