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Drafting the statement

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12.1 The Practice Direction says that:

5.1 A witness statement should be capable of standing as the totality of the evidence in chief of the person giving that statement.

5.2 A witness statement may be added to by the provision of a supplementary statement provided that the supplementary statement isfiled and served in accordance with any directions given in the appeal.

12.2 Because her evidence in chief is to be given primarily in writing rather than orally, preparing the appellant's witness statement is one of the most important steps in the appeal. It is her presentation of her case to the Tribunal. A good statement can win an appeal and a careless one risks losing it. The statement will usually be far more important than the evidence you lead at the hearing.

12.3 There are a number of advantages to your client's statement standing as evidence in chief:

• She can tell her story in a relaxed setting, in her own time. That is particularly important if your client is inarticulate or unusually nervous and may not be capable of doing herself justice in oral evidence.

• Mistakes or misunderstandings between client and interpreter can be resolved before finalising the statement, rather than played out in front of the Tribunal where they may take on a wholly disproportionate significance.

• There is less risk of disputes arising later over the content of the witness' evidence if a statement is adopted as evidence in chief than if a recording of oral evidence at the hearing is relied upon instead.

• The HOPO's cross-examination will sometimes resemble a full examination in chief whether you have examined in chief or not - his rationale seemingly being that an inconsistency is bound to slip in somewhere. By using written witness statements, you avoid your client having to give the same oral evidence twice, and such extensive cross-examination should leave sufficient scope for developing the evidence in re-examination if appropriate (see chapter 37).

12.4 There are also, of course, disadvantages. These are discussed in chapter 35 on 'Examination in Chief'.

The purpose of the statement and dealing with past statements

12.5 The purpose of the statement will depend upon your assessment of the material submitted to the Home Office in support of the initial application.

12.6 If a statement has already been submitted to the Home Office, you need to determine whether that statement is a satisfactory account of your client's history up to that date. You do not want to find out that your client considers the initial statement inaccurate after you have adopted it as her appeal statement.

12.7 Whether or not you represented the client in the initial application, you need to check any statement previously submitted. The statement may have been rushed. As indicated in the previous chapter, it is all too easy for a rushed representative to let his own preconceptions as to the likely nature of the case colour the statement. If the initial instructions were taken very shortly after a traumatic escape from the country of origin, the scope for inaccuracy is increased.

12.8 The statement may be accurate as far as it goes. But it may overlook important aspects of your client's case simply because these were not thoroughly investigated when the statement was taken. It is not sufficient to read through the statement paragraph by paragraph with your client asking her to confirm that it contains no inaccuracies (although you will have to do that at some stage). There is no substitute for reinterviewing the client, and checking the information through questions from different angles as described in the last chapter.

12.9 Should you determine that the statement does satisfactorily and accurately set out the case, the next step is to check it against the Home Office's asylum interview notes. This ought to have been done immediately following the interview and representations made to address any apparent inconsistency. If it appears that the interview record may be inaccurate and the interview was recorded, the tape should have been checked. However, this will often not have been done properly (or at all), in which case, it should be done before the appeal hearing so that any issues can be addressed in the appeal witness statement.

12.10 If you are satisfied that the existing statement accurately and appropriately covers all aspects of the case and that there is no inconsistency with the Home Office interview notes, the appeal statement can simply confirm the initial statement. But you will also have to provide any updating information and deal with those allegations in the refusal letter to which a response from your client is required (see below).

12.11 See chapter 13 for dealing with defects in statements which have already been disclosed, and inconsistent Home Office interview notes.

12.12 Unless a satisfactory statement has already been submitted, you should normally produce a full witness statement for the appeal. The Tribunal should have a stand-alone document setting out the appellant's history. The judge will not be able to engage properly with your client's evidence if he is forced to cross-refer between an initial unsatisfactory statement and a witness statement offering corrections, comments and additions.

Structure, style, and detail

12.13 The point of the witness statement is to tell your client's story, in so far as it is relevant to the appeal, in a credible and persuasive manner.

(i) Structure

12.14 Often the best structure will be chronological. In a political case, the statement might be ordered as follows: her upbringing and background; the development of her beliefs and activities; any acts of persecution; the circumstances of her decision to flee; her escape from the country; any relevant post-arrival news from her country of origin; relevant post-arrival activities. Even if the appellant's fears arise on multiple grounds, for example race, political opinion and social group, these fears will often relate to a single story which is best told as a single story.

12.15 One drawback of a chronological statement can be to invite unwarranted emphasis on early events that now have little relevance to the case. The HOPO, and sometimes the judge, start worrying about an unrelated detention 20 years ago simply because it is the first thing they read in the statement.

12.16 That and other problems are addressed if the statement starts with an introductory paragraph summarising the claim, and explaining how the statement is structured and the relevance of each section. For example:

I escaped from my country after I was forced by the secret police to agree to inform upon my political colleagues. In this statement, I first explain my background and how I became politicised as a result of the human rights abuses that my family have long suffered at the hands of the state. Then I recount how I began my activities and why I stuck with these activities despite being detained on numerous occasions. I then describe how I was forced to agree to work for the state and why I came to accept, with the encouragement of my family, that the risks had so increased that I would be a fool to stay. After recounting my escape from my country, I describe how I have helped my organisation from the UK and the news that I continue to receive from my country. I conclude by setting out what I fear would face me were I to be expelled.

12.17 An introductory paragraph, signposting how the statement is structured, is even more important if the statement is very lengthy and complex and the client's fears are based on an accumulation of inter-related or quite separate events and circumstances.

12.18 If your client faces various risks, and each relates to a distinct set of facts, the statement may be easier to follow if you deal with each ground in turn. For example, the appellant may fear racial attack, but also fear detention as a result of a relative's political activities. Or she may fear detention and ill-treatment upon arrival and if she survives that, absence of treatment for her illness. If they are effectively two separate stories, then it may be better to tell two separate stories, rather than switching between the two in chronological sequence. If your client wants to describe how the general situation deteriorated over a particular period, as well as telling her own personal story of that period, it is sometimes easier to deal with the two in turn.

12.19 The important thing is that whatever structure you choose is simple to follow both for your client and for the Tribunal.

12.19A The Practice Direction also requires certain information to be included:

5.5…The statement should be expressed in the first person and should also state:

(a) the full name of the witness,

(b) their place of residence or, if they are making the statement in their professional, business or other occupational capacity, the address at which they work, the position they hold and the name of their firm or employer,

(c) their occupation, if they have one,

(d) the fact that they are a party to the proceedings or are the employee of such a party if it be the case, and

(e) the process by which it has been prepared, for example, face-to-face, over the telephone, and/or through an interpreter.

12.19B The Practice Direction also requires the statement to identify:

5.6 … (a) which of the statements in it are made from the witness's own knowledge and which are matters of information or belief, and (b) the source for any matters of information or belief.

12.19C The Practice Direction further makes provision for exhibits:

5.7 An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement.

5.8 Where a witness refers to an exhibit or exhibits, they should state 'I refer to the (description of exhibit) marked…''.

5.9 Where a witness makes more than one witnessstatement to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement.

12.19D Prior to the adoption of the current Practice Direction, exhibits were little used in the Tribunal but you should use exhibits where the witness statement refers to documents. Insofar as such documents are already contained within the Home Office bundle, or are best placed elsewhere in the Appellant's bundle, you should avoid duplicating these documents in the exhibits. In these circumstances cross referencing may work best, provided that the bundle is clearly indexed and book marked. Although there is no set format for such cross referencing, it is common to see e.g. [AB/page number] and [RB/page number], where "AB" refers to the appellant's bundle and "RB" to the respondent's bundle.

(ii) Style

12.20 The statement must establish all facts within the knowledge of your client which are relevant to her present risk. But it is no good conveying the relevant facts if it is done in a way that provokes the reader to doubt them. Though he ought not to reject the statement without something rather more concrete, it is much better if the story 'rings true' to the judge when he reads it.

12.21 It should ring true as her story. It should be her experiences from her perspective based on her perceptions. It should say what she did; what she experienced; what she thought; why she thought it. The aim should be a natural first person account with which the reader can even empathise in some small way, or at least feel that he has gained some insight or understanding. That will not happen if the reader is left constantly asking 'But how would she know?'; 'But why would she do that?'

12.22 By explaining from her own point of view her knowledge, beliefs, and feelings as the statement progresses, you ought to pre-empt any reasonable allegation of inconsistency and implausibility. It is much better to do it this way, rather than having a separate section aimed expressly at rebutting actual and potential allegations from the suspicious reader.

12.23 It should explain her own actions but - equally importantly - should not purport to explain the actions of others when she is in no position to do so. If she says what others were doing and (especially) why they were doing it, then unless it is obvious, she must explain what led her to that belief.

12.24 An immigration officer will often have posed questions to the client in the asylum interview that appear to require an explanation for the actions of third parties. A particularly silly example is referred to in chapter 36 on cross-examination. The appellant, shot while fleeing gunmen, was asked 'Why did they shoot you in the leg rather than the head?' A very common example in the asylum interview is 'Why were you released from detention?' Do not underestimate the perceived power relationship between claimant and questioner. When she believes her life and future depends upon the questioner's view of her, and the questioner requires information without any recognition that she may be unable to provide it, she is liable to try to do what she is told. Directed to explain the motivation of her guards, she will guess if she does not know. The guess might be 'They had no evidence'. The immigration officer never asks how she knows this. Rather, the answer is seized upon as evidence that she was in the clear.

12.25 The relationship between representative and client is not free from this danger. Do not adopt the same approach. Ask first whether she was told by anyone why she was being released. Then ask whether she has found out some other way. If the answer to both is negative, it is likely that she does not know. The statement can simply record that she was not informed why she was released. However, if the Home Office interview notes record her saying 'They had no evidence', the HOPO is likely to claim he has found a discrepancy. Since that is predictable, it saves everyone time if you anticipate it. Ask her about her answer to the case owner. If it transpires that she thought she was required to offer a guess, the statement can explain that.

12.26 The position would, however, be different if she had guessed at the time at the reason for her release and had acted upon it. The converse problem is where her unfolding perceptions and fears about the actions of others are necessary to explain her own actions, but these contemporaneous beliefs are not explained in the statement. The following is (obviously) not intended as a script, but to illustrate the difference between a good and bad statement.

12.27 A statement will sometimes say 'I had to be careful because they put me under surveillance.' That simply invites the question 'how did she know?' That conclusion should be the culmination of what led up to it, e.g.: 'Outsiders seldom enter our neighbourhood but I and my neighbours started seeing strange men and strange cars loitering around my house. I then started looking out for such people following me, and saw on several occasions people and cars that I thought I had recognised before. I started to believe I was under surveillance.'

12.28 Remember that having been told that she believed herself to be under surveillance, the subsequent narrative should address what happened to that belief. If the statement jumps to her attendance at secret meetings two months later, the reader will ask 'But why, when she believes she is under surveillance?' Nor should it simply record 'After two months, the surveillance stopped so I started my activities again.' Rather than explaining, that again creates doubt: 'How would she know the surveillance stopped?' She must explain what she thought and why she thought it, e.g. 'After a month, I stopped seeing these people, and my neighbours said the same. I refrained from any political activity for a further month, while remaining vigilant. I then decided that the surveillance had probably ended. While I could not be sure, the choice was to abandon my activities indefinitely or take the risk and I felt sufficiently confident to take the risk.' It takes longer to explore her feelings in this way, but it makes the difference between an account that sounds natural and one that sounds contrived.

12.29 Similarly unsatisfactory is the statement 'Someone gave my name under torture so I had to flee.' She must have known it in order to act upon it, yet she does not explain how she knew, and it is not obvious. Nor is it enough to say 'Friends informed me that someone gave my name under torture...' because the reader may still be wondering 'How would they know?' If she knows, she should explain, e.g. 'My friends said they had heard through another detainee that someone had given my name under torture.' But it is perfectly plausible that she may not know how her friends obtained this information. In that case, she should say so. That way, the reader is not expecting an answer at the hearing. But she should also say why she acted on the information nevertheless, e.g. 'My friends refused to tell me how they knew, but I have worked with them a long time, and I trusted them, so I believed them.' Such simple explanations can make the difference between a statement that the reader understands and therefore believes and one that he does not understand and therefore suspects.

12.30 Of course, your client's experiences and beliefs may be so remote from that of the judge that it appears both fruitless and misconceived to aim for this sort of understanding. This discussion is not intended to detract from the dangers (of which the courts have warned) of judging the experiences of refugees from the standpoint of the judge's life experiences. However, so long as judges continue to reject accounts on the basis that they cannot understand why the appellant would act as she did, then that, as well as putting the facts in evidence, must be the statement's aim.

12.31 The fact that it should be your client's own account from her perspective means that the style of the statement will vary according to the personality, education, culture, and experiences of the appellant. You should ensure that the statement reflects as far as possible the way your client speaks and the language in which she will give oral evidence.

12.32 Do not present the statement in emotional or passionate language when your client's language is actually matter-of-fact or under-stated. Do not use expansive, sophisticated or complicated language when your client is actually of little education. (Plainly, you are reliant on a skilled interpreter who can reflect your client's language.) Do not add in phrases such as 'I submit' or 'I confirm'; these are unnecessary and give the appearance that the statement is not written in your client's words.

12.33 You should never embellish a witness' statement with standard passages which you think sound convincing and powerful - regardless of whether your client is happy to adopt the wording. Firstly, the Tribunal will have heard them before and may well recognise them. They will influence his opinion of the whole statement even though the remainder may be entirely the appellant's words. Secondly, if your client is able to explain your standard paragraphs at all in cross-examination, the explanation will likely sound equally artificial. A paragraph thanking the British Home Office for its kindness is unlikely to sound natural or credible.

12.34 It is not only the Home Office which has stereotyped ideas about genuine refugees. Perfectly credible clients with perfectly straightforward accounts have had their statements ruined by representatives dressing them up in what they believe to be the language and phraseology of a genuine refugee.

(iii) Detail

12.35 A refusal letter will often claim that an account is 'vague and lacking in detail'. There is a common belief that the credibility of an account increases with the amount of detail that is provided. Some Home Office caseworkers appear to believe that the genuine refugee will give a blow by blow account of her persecution, as if from the pages of a thriller, e.g.: 'I was grabbed from behind and pushed onto the ground. They were shouting something but I could not make it out. There were at least three of them standing around me. One put his boot on my head, and my nose felt it was going to break as it was pressed into the ground...'

12.36 The amount of detail that is appropriate depends, once again, upon the characteristics of your client. Some appellants are capable of providing this sort of detail (even where the task causes them great distress). Some judges are swayed by such detail (and if the evidence is given orally, by the resulting distress). If the appellant is capable of relaying a detailed and consistent account of her torture, you should normally take it despite the pain it causes your client (though see para 12.40 as to mentally ill and disordered appellants).

12.37 However for fairly obvious reasons (to all except the Home Office), many victims of persecution are largely incapable of offering this kind of blow by blow account of their suffering. You must differentiate between clients who, though reluctant, are capable of giving detail but have not appreciated the importance, and those clients who are simply incapable of providing it.

12.37A In fact, the Home Office's API on Assessing Credibility and Refugee Status recognises that "personal factors" will affect the level of detail which an individual may be reasonably expected to give when recounting a particular event (p45). It gives a non-exhaustive list of such factors as:

• age

• gender

• sexual orientation or gender identity,

• physical and mental health

• variations in the capacity of human memory

• learning difficulty or disability

• emotional trauma

• level of education

• social status, culture and language

• cultural differences including social and political backgrounds

• feelings of shame

• painful memories, particularly those arising out of sexual violence, torture and other serious harm

• fear, including fear of officials in the UK

• the passage of time

• the context in which the events described took place

12.38 There is a wealth of evidence (to which you can refer) about the effect that trauma may have on recollection (para 26.13). It is neither tactically sensible nor morally appropriate to attempt to force details out of clients who are actually unable to give a consistent or coherent account. But spend time talking around different subjects and understanding your client's capabilities. There is nothing wrong with going into details where she is able, and explaining that she cannot offer similar recall on other events (though she should explain, so far as possible, why). Detail is, in any event, a two-edged sword. A detailed and articulate account has on occasion been attacked as well-rehearsed and contrived, just as a hesitant, reluctant or vague account may be alleged to be fabricated. Detail as to specific times and dates in a statement may also be used against your client if she is unable to reproduce the same level of detail in cross examination or if she gives similarly detailed, but inconsistent evidence.

12.39 Detail on matters such as political beliefs and activities will also vary according to the appellant. If your client is a sophisticated leading light in her movement who has played a significant role in its ideological splits, it will be effective to provide considerable detail about her political beliefs and the ideology and structure of her organisation. Indeed, it would be odd (and potentially dangerous) not to. If the appellant is an uneducated villager who assisted her organisation because it promised her food and protection from police harassment, then it would be odd if the statement did start to explore its ideological splits. The API on Assessing Credibility and Refugee Status acknowledges this, saying "a 16 year old child would not necessarily be able to provide details of their parents' political activities and an illiterate farm worker may not necessarily be able to provide details of national political developments despite being a grass roots supporter of the political opposition" (p45). Your client should explain, clearly and simply, why she supported the organisation and what it meant to her. That may not prevent the HOPO subjecting her to misconceived cross-examination about the organisation's ideology, but by setting out clearly the basis of her support and so the extent of her knowledge, you can challenge rather than encourage the HOPO's misconceptions.

12.39A Some appellants, especially those who are minors and/or illiterate, may struggle with the concept of time and be unable to provide even approximate times or dates. In these circumstances, it may be of more use to your client to focus on the sequencing of events and refer to time by reference to markers in the client's life rather than by reference to units of time as we use them. If your client is truly unable to say when something happened, do not push them to give an answer or speculate in the statement by reference to your own concept of the likely timings of events. This will unravel as soon as the client is cross examined and will be likely to be held against your client. It is better to address and explain the client's problems with time and dates head on in the statement. If your client herself is speculating as to when something might have occurred, express it with the same level of contingency in the statement, e.g. 'I cannot remember exactly when this happened. I know it was after my father had fled. I know that it was cold weather. I am not able to say how many days or months as I never counted these before coming to the UK…'

Mentally ill or disordered appellants

12.40 Victims of torture and other traumas are liable to suffer from depression and/or PTSD. A traumatised client may be capable of relaying her account in a safe and supportive environment to someone who has won her trust, but incapable of repeating it under cross-examination conditions in a court room. The fact that she may be unable to repeat her account under cross-examination should not dissuade you from attempting to take a full statement. You can submit the statement without calling her to give oral evidence at the hearing in which case she will not have to face cross-examination. You cannot however call her to give oral evidence in chief without offering her for cross-examination (see para 30.13), although you can seek special measures aimed at enabling her to cope with it (para 6.23-6.23A). Where possible, it is important to obtain evidence explaining why her psychological state renders it inappropriate that she give oral evidence.

12.41 You may well wish to have her examined first to find out whether it is medically advisable for you to attempt to take a statement (see also the discussion of capacity in the preceding chapter from para 11.22). If your client is plainly traumatised, you ought to be facilitating treatment for her. If the advice is that she is able to give a statement to you, but not to give evidence in court, you should ask the expert to explain this in writing, as some judges find it hard to understand that a person who has produced a full witness statement is not well enough to be cross-examined.

12.42 If your client is already under treatment, she may have given quite a full account of her experiences to her doctor or psychologist. If recounting it to you would risk exacerbating her symptoms, you may produce a report from the doctor setting out her history, together with a statement from her confirming its veracity.

Dealing with actual or potential allegations: Allegations in the refusal letter

12.43 Whether or not you decide to deal directly with allegations contained in the refusal letter, you should have these in mind while preparing the statement.

12.44 Your client may be able and anxious to respond to the refusal letter in her own words. She may have compelling things to say, even where it does not involve establishing further facts. If she wishes to do so, and is effective in doing so, then she ought to have the opportunity to answer the case against her in her own words. There is no guarantee that the HOPO will otherwise put the relevant questions to her in cross-examination.

12.45 But you do not necessarily need to incorporate her comments into the statement. As indicated in chapter 35, you will often want to lead some oral evidence in chief without being accused of regurgitating the statement. It is highly inadvisable to omit material facts from the statement in order that they be led in oral evidence. The omission may (however unfairly) be held against your client on credibility, even if it does not disturb the flow of the statement. While the judge ought to allow reasonable examination in chief, some seek to limit it drastically. At worst, you may be prevented from putting the facts in evidence at all. Her response to the refusal letter can therefore be useful material for examination in chief. Your client can make her case to the judge, rather than simply recounting fact, and it is not a disaster if the evidence is not permitted.

12.46 There is however no imperative that your client respond to every argument in the refusal letter. Some may require knowledge about legal or country issues which she does not have. She may not be confident in formulating the arguments even if she does have the necessary information. She may not be able to recognise and deal dismissively with allegations that deserve that treatment. If the allegations are wholly misconceived, you may simply mislead and unnerve your client by putting the Home Office allegations to her as if they were of substance. If told she has contradicted herself when she has not, she may feel compelled to offer some artificial explanation for a non-existent discrepancy which subsequently falls apart. In some cases, therefore, specific responses are best dealt with in your submissions.

12.47 There may also be little that she can say about allegations of implausibility. She should not be pressurised into giving explanations for the actions of, say, the police because the refusal letter alleges (without evidence) that they would have acted differently. If all she can say is that it happened, then that is all she should say.

12.48 Since a skeleton argument is required by the standard directions, it will usually be the best place to present arguments that are in reality in your words rather than your client's. There is no point in drafting a paragraph for your client in which she refers to expert and other evidence that you have gathered to demonstrate that the event is not implausible. It simply encourages cross-examination to which it is unfair to expect her to respond. That is especially so where such comments are standard rebuttals to standard paragraphs from the refusal letter. Inserting these into your client's witness statement, purportedly from her mouth, can only detract from the aim of a good statement: her story from her point of view.

12.49 Remember, however, that she must deal with her own state of mind if that is material to the allegation. The refusal letter might claim that she could not have passed through her country's immigration control if she was wanted by the police. You may want to submit expert evidence to confirm that this could have happened. But your client should also explain whether she thought that there was a risk at the time, and if so, why she decided to run it.

12.50 Where you want to add factual information to address a discrepancy in the refusal letter then, if possible, do so naturally in the narrative of the statement. If the refusal letter alleges she remained in the country too long after her decision to leave, she should explain what she was doing in the narrative rather than as an express response to the refusal letter. If the Home Office's point has any substance, then the answer ought to fit within the natural story. It is more effective if you point to the narrative to demonstrate how the allegation is unfounded, rather than to a paragraph expressly formulated to meet the allegation.

12.51 If it cannot fit within the narrative, then the statement should say something to the effect that 'I have been asked by my representative to comment on the suggestion that...' This will firstly define what she is doing, so as not to suggest that she has taken it upon herself to respond to the refusal letter as a whole. It will secondly avoid any impression that she considers her actions to be odd, as might be the case if she simply said 'This was really not unreasonable because...'

12.52 Sometimes, your client will have to refer to information provided by yourself or other sources in order to explain her present state of mind (for example, her fear of expulsion to a particular location or her ability to live in a particular part of the country). There is no objection to that. But she should say 'I am advised that...', so as to avoid misunderstandings and misconceived cross-examination.

Dealing with potential allegations or inconsistencies

12.53 Where you can envisage a point being taken against your client (whether by the HOPO or Tribunal) which has not been taken in the refusal letter, you should again deal with it in the narrative if you can do so without obstructing the natural flow of the statement. That flows from the rule that a good statement should not leave the reader thinking 'But why would she do that?' or 'That is different from what she said before!'

12.54 There are commonly recurring issues that you will want to ensure are covered by the statement if they may arise on the facts, whether or not any issue has been raised in the refusal letter. They commonly form lines of cross-examination. They include:

• why your client was released after any periods of detention (if she does not know, simply state that she does not know);

• (if appropriate) why she still felt in continuing danger despite being released;

• when she decided to leave the country, what made her decide to leave at that point, and (if not obvious) why she did not decide to leave sooner;

• why she did not try moving elsewhere in her country of origin;

• the circumstances of any delay between deciding to leave and actually leaving;

• what she did to avoid being captured during any period in which she believed she was in danger and (again if it is not obvious) why she is not confident that such tactics would work again;

• if she had any contact with the authorities while she was in danger, then what risks she considered were involved and (if any) why she took them;

• if she was at risk from non-state actors, whether she approached the authorities for protection, and if not, why not;

• if her fear is based on race, religion or social group, whether she perceives other members of that group are suffering similar harm, and if not, why she believes herself to be at risk;

• if she failed to perform military service on political grounds or through fear of ill-treatment, whether siblings performed such service and if so, why and what happened to them;

• how her escape route was chosen and what risks she thought were involved;

• why she chose to come to the UK, or else how she ended up in the UK;

• whether she has had any contact with anyone in her country of origin since she left her country;

• if she has left her immediate family in the country of origin, whether she thinks they are at any risk and:

• if they are at risk, why she has left them (if they are her dependants) or why they have not fled themselves (if she knows);
• if they are not at risk, why that does not reassure her about her own position (if that might otherwise occur to the reader);

• what she now fears and, if applicable, why the passage of time since she left her country has not eased these fears;

• whether there is any part of the country in which she could live a relatively normal life without facing undue hardship and be safe, and whether she could reach that place safely (including what would happen to her at the port to which the Home Office would expel her, where this is known or can reasonably be inferred).

12.55 Where it is not possible to provide the answer without explaining the potential problem, you will have to decide whether it is worth signposting the problem in order to address it. This most commonly arises where a reader might perceive a discrepancy in past statements or interview notes but the point has not been taken in the refusal letter.

12.56 Do not assume without talking it over with your client that such a point cannot be satisfactorily addressed in the narrative. An apparent inconsistency may be down to the story being expressed in different ways. It is often possible, without distorting the statement, to include further information or rephrase the information so that the reader will realise that there is no real inconsistency.

12.57 Where that is impossible, you should introduce the point with words to the effect of 'I am asked by my representative... ' so as to avoid the impression that the client believed she had been inconsistent.

12.58 The advantages in dealing with such issues upfront are that you may promote an impression of openness and candour by voluntarily disclosing and addressing weaknesses. You ensure that the witness can explain these potential weaknesses in response to fair, straightforward questions in a more relaxed and sympathetic environment. Any cross-examination may be less effective if the point has already been recognised and dealt with.

12.59 The disadvantages are that you may signpost to the HOPO and the judge an apparent concern about potential weaknesses that they had not actually perceived as damaging or had failed to notice altogether. By appearing to go out of your way to limit the damage, you may convey the impression that the discrepancy carries an importance that it does not deserve. If you do not consider the point could reasonably be taken, then addressing it may be perceived by the Tribunal as inconsistent with that stance. If you are confident that your client will be able to deal with any cross-examination, you may choose to leave it. The answer might appear more effective by being more spontaneous and catch the HOPO off guard.

12.60 However, be aware when making such a choice that even if the HOPO does not put a potential inconsistency in cross-examination, the judge may be minded to rely upon it and upon the failure to offer an explanation. He may even do so without indicating his concern at the hearing. Whether that is unfair will depend upon the circumstances of the case (see eg Maheshwaran [2002] EWCA Civ 173).

12.61 The more clear the discrepancy appears on the papers, the greater the danger that the Tribunal will be entitled to rely upon it without notice. If you do not deal with a point in evidence in chief, and neither the HOPO nor the judge raise it, you will not be able to address it in re-examination.

12.62 It is your duty to put the positive case which entitles your client to the protection of the Convention. This should include explaining points which, absent an explanation, would concern the reasonable reader. Whether to cover points which you consider unreasonable but which the HOPO (or judge) might take anyway can be one of the most difficult questions faced in presenting an appeal. The above suggests the factors to be considered in reaching a decision. But there is no formula to the balancing act. It is a question of judgment in the circumstances of the individual case and the individual client.

12.63 Whatever you decide, avoid giving the impression that you are allowing the Home Office to dictate the ground upon which the case is fought by adopting its discrepancy culture and focussing upon a negative and nit-picking dissection of past statements and potential allegations rather than upon the central themes of the appellant's claim.

Final steps

12.64 The HOPO (and the Tribunal) may well subject the written statement to a minute comparison against other documentation for potential discrepancies or inconsistencies. Despite the fact that you will have had such documentation in mind when preparing the statement, the final statement should be checked for consistency against:

• all Home Office interview notes;

• all statements and written representations previously submitted, whether by you or a previous representative;

• all documentary evidence specific to the client, for example dates of arrest warrants and letters from family members;

• any medical reports, other expert reports or character references which have been or may be submitted.

12.64A If you are instructing an advocate to present the hearing, do not, if at all possible, submit the statement without obtaining his input (which should be after he has seen the client in conference). That is especially so if you do not routinely attend appeals. The statement should always be reviewed by someone familiar with cross-examination in asylum and human rights appeals. Comments which appear unremarkable to a reasonable reader regularly excite a stream of cross-examination from a HOPO.

12.64B It is important that your client is provided with a copy of the statement, in good time before the hearing. She should read this or have it read to her again as close as possible to the hearing. Each time an appellant has the statement read back to her, remind her to let you know if anything is incorrect, pointing out that an inaccuracy in what may appear to be an insignificant detail may be crucially important. You should not, however, rely on the client to point out inconsistencies between the statement and other documents.

Statement of truth

12.65 The Practice Direction contains the following requirements on the statement of truth that should form the final paragraph of your client's statement:

5.10 A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence. It must include a statement by the intended witness in their own language that they believe the facts in it are true.

5.11 To verify a witness statement the statement of truth is as follows: 'I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.'

12.66 The statement should be signed and dated.

Statements where English is not your client's language

12.67 On the face of the current Practice Direction it appears to require that witness statements be drafted in the witness's own language and then translated into English for the court (paras 5.5 & 5.12). It is understood that the intention is to mirror the CPR which include the same requirement (PD32, paras 18.1 and 19.1 & PD22, para 2.2).

12.68 This conflicts with previous practice in the Tribunal. In Njehia v SSHD (16523), the IAT gave the following guidance in respect of statements taken via an interpreter:

The proper procedure when taking a statement in a language other than English is for a competent interpreter, in the correct language and dialect, to read back the statement and for the maker of the statement then to sign it, confirming that the document has been read back in his or her own language. The interpreter should then append to the statement his own short statement that he has read back the contents of the document to the maker of the statement in his or her own language. That should then be signed and dated by the interpreter, whose name should be given.

12.69 In March 20223, ILPA wrote to the Tribunal to seek clarification of the requirement in the Practice Direction that the witness statement be drafted in the witness's own language (para 5.5), querying whether the words 'drafted in a language they understand' should be construed to mean the instructions that form the basis of the statement are taken in a language the witness understands, via an interpreter. ILPA have also raised a number of practical problems relating to the requirement that witness statements be drafted in a language the witness understands, if that expression is to be taken at face value. These include the high costs of translation and, more fundamentally, a dearth of interpreters with the necessary legal skills to draft witness statements. Lawyer linguists, that is lawyers with specialised linguistic skills, working in the field of domestic asylum and human rights law are a scarcity. The Tribunal has indicated that an amendment to the Practice Direction is likely later in 2023.