We all agree that taking a witness statement when preparing an appeal is necessary, but when it comes to statements in the context of asylum applications, views tend to differ.
Some legal representatives believe that a statement is a crucial part of evidence, and indeed the foundation of the whole claim, whilst others maintain that statements are dangerous because they tend to cause discrepancies with the answers given at the asylum interview and therefore make the applicant's credibility collapse.
There is force in both arguments, so what is the best way to proceed?
My humble opinion is that if you are the legal representative, you must take a statement from your client even if you eventually decide not to submit it, and you should complete a draft before the full interview.
Probably the only exception to this rule would be when your client is unable to provide an account, for example due to serious mental health issues.
There are various reasons why I believe taking a statement is essential.
- Firstly, asking your client a lot of questions about their story will help them focus on the relevant facts, and this exercise is an invaluable training tool that will come handy when they are interviewed at the Home Office. If your client is surprised by the intensity of your scrutiny and accuse you of being hard on them, you should take it as a compliment, and explain that this is for their own benefit: once able to withstand the "grilling" from their thorough lawyer, your client will be able to cope well with the stress of the asylum interview.
- Secondly, requesting detailed information to the level required to draft a statement is the best way to expose any weaknesses in your client's claim, which would not have been obvious in the course of taking instructions.
- Thirdly, once the job is done, your client would have a written document detailing their experience, and going through it will enhance their ability to answer interview questions. Knowing your story is different from telling your story, and having practiced the latter is a step forward towards refugee status.
- Finally, if your client's case is refused (and we know that most asylum applications are), you would have an easier job in preparing the appeal statement, as you would only have to update the asylum statement and deal with the issues raised in the refusal letter.
Assuming I have managed to persuade you of the importance of drafting statements, and you are now reaching for the phone to book your next client meeting, eager to start drafting, what do you do with your masterpiece once it is done?
The best time to submit a statement
Again there are different theories, and the world is divided in those submit statements as soon as they are ready and those who keep them on file waiting for the opportune moment.
I used to belong to group one. As soon as I had completed the mammoth task of taking instructions, drafting and reading back, I would put the warm printout in the post and send it to Lunar House.
But then two things would happen: either the interview would not take place for several months, making the statement obsolete, or the Home Office would not put the paperwork on the client's file in time, and the interviewing officer would not read the statement before the interview.
Now, it is true that there might be a risk of discrepancies between the account in the statement and the answers provided at an interview, but I believe it is more difficult for your client to engage with an interviewing officer who has no clue about their story, resulting in longer interviews, more questions and possible misunderstandings.
It is therefore helpful if the statement reaches the Home Office before the interview date, but not too soon.
What works best for me is to draft the statement and leave it on file until the invitation to the interview is received. At this point, you can check the statement with your client, so that it's fresh in their mind. You can add any new facts, to ensure it's up to date, and you can send a copy in the post, or by email if you have an address, hoping the statement will be linked to the file in time.
Additionally, it is worth giving your client a copy to hand-deliver to the immigration officer, for a quick read before starting the interview.
What do you need to say?
Writing a statement is an art, which is often not taught to legal representatives who end up learning "on the job".
The task is difficult for various reasons: you need to extract all the relevant information and steer your client away from lengthy accounts of episodes that are not part of their claim.
You need to be sensitive but at the same time probe and ask for details of traumatic event that your client would rather forget.
You are pressed for time due to the limited funds available for the case but need to ensure the statement is comprehensive.
You have to be satisfied that no answer is lost in translation if your client does not speak English and you are using an interpreter (in which case you are even more pressed for time, as attendances with interpreters notoriously take much longer).
Finally, you are exposed to the risk of vicarious trauma by engaging with your clients' accounts of ill-treatment or torture, but this is perhaps a discussion for another day.
The importance of a good structure
To ensure you do the best possible job, you need structure. You have to know where to start and where you want to end. You also need to remember that this is your client's story and their voice and style should come out, as much as possible, from the paper. So, there is no need to say that "my right under article 3 ECHR would be breached" when you can simply say "I am scared that I will be detained and beaten".
To ease your client into the task, you may want to start with neutral questions: their background, family, education, employment.
You would then move onto the first incident (if any). Full details of any episode of detention, ill-treatment or issue which led the client to leave their country should be provided.
You would continue in chronological order and finish with the last episode, which prompted the client to flee.
Some details of the journey to the UK should be provided, including checking if your client was fingerprinted in any "safe country" where he could be returned under the Dublin III Convention.
While narrating your client's story, always bear in mind the issues that pop up in the Home Office refusal letters: have you explained why your client cannot safely relocate anywhere else in their country? Have you provided sufficient details to ensure the claim does not appear vague? Have you clarified any issue which could end up in adverse credibility findings?
Finally, have you explained why your client would be at risk on return? No matter what happened in the past, if you don't explain the reasons why your client cannot go back to their country, they would not qualify for refugee status.
In some cases this would be obvious but in other circumstances you need to elaborate, especially if a long time has lapsed since the last incident in the country of origin.
When you have finished your draft, it's time to read the statement with your client and ensure all is correct. And once all is done, remember the most important task: your spellcheck!