by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup of the Public Law Project
~ 2018 Updated Edition ~
The Consequences of Expulsion
Persecution and human rights abuses by the state
Civil war and lawlessness
Other issues relating to cultural conditions
Disputes as to past events
The appellant's actions
• the consequences of the proposed expulsion;
• disputes as to past events.
Some issues fall into both categories. The Home Office might assert that 'low-level' activists are at no risk in the country of origin. It then reasons from this not only that your client is not at risk if expelled, but that her evidence of past detentions as a 'low-level' activist must be false. The same expert evidence will refute both these allegations.
20.2 As always, distinguish between those Home Office arguments which may be taken seriously by the Tribunal and those which result from legal misconceptions or are so outlandish that you can safely deal with them yourself. But remember the question is not simply whether you think they are outlandish, but whether you can be confident that the Tribunal will think the same. The most surprising Home Office allegations are sometimes accepted by the Tribunal - even absent any apparent expertise on the part of the maker of the allegation.
20.3 If in doubt, err on the side of caution. The qualifications or experience of an expert should enable him to arrive at a better appreciation of the material than either you or the Home Office. If your argument is rejected, you will be on stronger grounds to complain if the Tribunal rejected expert analysis rather than simply your own analysis.
20.4 You will often find evidence about the conditions your client will face in the main country reports from the likes of Amnesty, Human Rights Watch, and the US State Department. However, the Home Office will often argue that these documents do not address the particular circumstances of your client or you have not shown how your client will be affected by these abuses. You may well be able to counter this by making submissions upon the general material. However, evidence from an expert who has focussed specifically upon your client's circumstances will put you in a stronger position.
• what risks your client will face as a result of her perceived political position;
• whether a particular action will be perceived as political and/or a threat;
• whether or in what circumstances her sexuality or ethnicity will place her at risk;
• whether the criminal offence for which she is wanted may put her at risk of ill-treatment during interrogation, detention conditions that will be inhuman or degrading, or an unfair trial;
• the consequences of exercising freedom of expression or association to which she is committed, or practising her religion;
• whether she will be at risk of ill-treatment as an expelled asylum seeker;
• whether dissident activities abroad are monitored, and whether your client's activities in the UK may place her at risk.
20.7 If you are assessing risk to members of a party, tribe, ethnic group, or religious order, of which there is little mention in the general country of origin material, expert evidence will again be especially important.
• whether the Government's statements on human rights are contradicted by its deeds;
• how effective are its investigations into human rights abuses by its security forces;
• whether it persecutes ordinary activists as well as prominent officials or whether persecution is common even against peaceful opponents;
• the risk of torture during detention and interrogation.
20.9 As indicated from para 1.59, a victim of past persecution should not normally be required to produce additional evidence of risk unless there has been a substantial change of circumstances for the better in the country of origin. However, not only HOPOs but judges sometimes suggest that simple passage of time will quell the home state's antipathy. In some cases, it will be better to err on the safe side by obtaining expert opinion on this proposition. You will be looking for an expert who can comment on the methods of the security forces, and can say whether they close files or lose interest after a period.
20.10 Of course, if there has - or the Home Office claims there has - been a fundamental change of circumstances in the country of origin then expert evidence may well be vital to establish that someone in your client's position will still be at risk.
20.11 Also common are assertions by the Home Office that the appellant is safe because she was detained without charge, or because she was released following detention (with or without torture): see para 1.61. Again, these are sometimes accepted by judges so expert evidence is a sensible safeguard. The expert might indicate whether it is common practice for the security forces to repeatedly arrest and ill-treat people without charging them - whether for information gathering, informal punishment, or simply general intimidation - and whether those who have been detained in the past are at more risk of being targeted in the future.
20.12 The legal issues which non-state risks raise are noted in paras 1.65 - 1.68. You will often want expert evidence on the factual issues. The domestic case law has focused on whether there is a 'sufficiency of protection' by international standards in the receiving state, including by reference to the standards implied into Articles 2 and 3. Under the Qualification Directive, serious harm by non-state actors constitutes persecution only where '(a) the State, or (b) parties or organisation, including international organisations, controlling the State or a substantial part of the territory of the State' 'are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7' (Arts 6 and 7).
20.13 Article 7 provides that 'Protection is generally provided' when these actors 'take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.' (Note that the words 'inter alia' are missing from the Regulations. This may wrongly lead a UK court to suppose that 'an effective legal system' is all an actor of protection must provide to satisfy the Qualification Directive.)
20.13A In Joined Cases C-175/08, 176/08, 178/08 and 179/08 Salahadin Abdulla & Others, the CJEU held that these provisions require assessment of:
…the conditions of operation of, on the one hand, the institutions, authorities and security forces and, on the other, all groups or bodies of the third country which may, by their action or inaction, be responsible for acts of persecution against the recipient of refugee status if he returns to that country. In accordance with Article 4(3) of the Directive, relating to the assessment of facts and circumstances, those authorities may take into account, inter alia, the laws and regulations of the country of origin and the manner in which they are applied, and the extent to which basic human rights are guaranteed in that country. (para 71)
These are all matters on which an expert is likely to be able to comment.
20.14 A suitably qualified expert may be able to assess whether the actor which it is said can protect your client is one which is 'controlling the state or a substantial part of the territory of the State' and so capable of providing protection. On occasion, you will be faced with controversial arguments that non-state entities constitute quasi-state authorities that are capable of providing sufficient protection from an international perspective (as has been argued in respect of Somalia and Iraqi Kurdistan). Such questions have been the subject of academic study by contemporary historians who may well be able to provide useful expert evidence.
20.15 He can also assess whether sufficient steps by international standards are being taken to provide protection including (although it can be argued not limited to) whether the actor of protection is 'operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm'. A suitably qualified expert may be able to address the effectiveness of systems of protection both generally and in the context of your client's particular circumstances. He should say not only whether there is a developed criminal justice system with appropriate penalties for particular offences, but whether the authorities possess both readiness and ability to operate it. The expert can examine the degree of likelihood that your client will suffer serious harm notwithstanding any protection that will be on offer. He may conclude, for example, that despite the large number of arrests the police are making and the resources it has put into preventing the attacks upon a particular ethnic or religious group, these attacks continue and show no sign of abating.
20.15A Relevant issues may include the extent to which the security forces themselves comply with international standards including human rights standards, the extent of corruption, the effectiveness of crime detection and prevention, and the extent to which appropriate protection is available to those most at risk (e.g. protection schemes for those who have been specifically targeted). Levels of protection might meet international requirements generally but not, for example, for women at risk from male relatives, transsexuals, or people from a particular ethnic group against whom the security forces are themselves prejudiced (and as observed at para 1.65C it is not enough for there to be a general sufficiency of protection if there would be no such protection for the individual client). As discussed in chapter 22, he should nevertheless not in terms express an opinion upon whether there is, overall or for the individual client, 'sufficient protection for the purposes of the relevant conventions or the Qualification Directive'.
20.16 The law relating to internal protection/internal flight in refugee cases is also not straightforward. The first question should be whether the proposed internal protection alternative is safe and accessible. UNHCR states that in determining whether internal protection is available,
Factors which will be relevant to consider include, among others: the actual existence of a risk free area, which must be established by evidence: the stability of the area and the likelihood that safety will be a durable feature (at the time of the decision and the time of return); the accessibility of the area (both internally and from outside the country)... (UNHCR's Position Paper Relocating Internally as a Reasonable Alternative to Seeking Asylum (the so-called 'Internal Flight Alternative' or 'Relocation Principle'), para 14)
20.17 Although it is wrong to talk in terms of presumptions, Lord Bingham has stated that "The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state." (see para 1.71) Nevertheless, the Home Office will often contend that the mere fact that someone was detained in area A means there is no proof that that person is at real risk in area B, notwithstanding the state's control over both territories. You might therefore ask an expert whether the police have access to nationwide records, whether they make enquiries with the police in a person's home area, what requirements there may be to register when one moves to a new area, or whether a person's ethnicity or other characteristics might attract attention if they tried to relocate in a different area.
20.18 It is, of course, a precondition of internal protection that your client can get to the proposed area safely (and as noted at para 1.72 the safety of the route of return may now be justiciable on appeal where it can reasonably be inferred what the route will be). The expert may therefore comment upon what treatment she can expect at the location to which she is to be expelled; what checks will be carried out (including whether enquiries may be made with the authorities in her home area); and the risks and practicalities of onward travel. If she cannot access internal protection, it is not an alternative. Article 8(3) of the Qualification Directive provides that a member state may hold that an internal protection alternative exists 'notwithstanding technical obstacles to return to the country of origin'. In HH (Somalia) & Others v SSHD  EWCA Civ 426, the Court of Appeal considered the meaning of this phrase and said that:
In our view these are probably confined to administrative difficulties such as documentation; they may include physical difficulties such as the lack of return flights; but the phrase does not readily signify a requirement to ignore risks to life or limb once the returnee is back in the country of origin, not only because it does not say so — it speaks only of return to the country of origin — but because to do so would be to permit the very thing that the Directive is designed to prevent, refoulement to a situation of real danger. Our view is that the mere fact that technical obstacles are excluded from consideration suggests that issues of safety during return are to be considered.
It should not therefore discourage expert evidence about access to the proposed internal protection location within the country of origin.
20.19 You will also want to examine whether the proposed internal protection alternative is unreasonable or unduly harsh. Refer to the discussion at para 1.73 and following, for the very wide range of factors that are relevant in light of the guidance of the House of Lords, and the UNHCR guidance approved by the House of Lords. The wide-ranging nature of the assessment of conditions in the proposed place of internal protection set against your client's personal characteristics may well benefit from expert evidence.
20.20 If your client will face starvation and destitution upon expulsion then expulsion may violate the ECHR. (Refer to the discussion on the threshold in this regard in R v SSHD, ex parte Limbuela  UKHL 66, MSS v Belgium and Greece (App no. 30696/09), and Sufi and Elmi v UK (App nos. 8319/07 and 11449/07)). The case will be even stronger if your client is vulnerable, for example if she is pregnant or has a child or care of a child, or is elderly, ill, or disabled.
20.21 Your expert should be asked to deal with the possibilities of obtaining work, benefits, charitable aid, and support from friends, relatives and neighbours. Again, it is important for him to be aware of and consider your client's personal circumstances. Her particular circumstances, for example as a divorced woman with children, may render destitution more likely, but equally, if her statement reveals family or other possible support networks in the country of origin, the judge will expect to be addressed on whether these could provide for her.
20.22 It will be necessary to bear in mind the different considerations that may apply in relation to refugee protection and humanitarian protection. For the former, it may be advantageous to show that no civil war situation exists whereas you will need to show a situation of internal armed conflict in the country of origin in order to access protection under Article 15(c) of the Qualification Directive.
20.23 The risks to a person's health if she is expelled may raise issues under articles 3 and 8 and may also be relevant (though less commonly) in asylum appeals. Medical expert evidence will obviously be required but related evidence from a country expert may be just as important. This is discussed further at para 26.23.
20.24 Relevant issues could include whether someone will be stigmatised by their local community, or whether absence of family will prevent her marrying and the consequences of that. If your client is a child or has care of children, you may wish to obtain expert evidence about what educational facilities may be available for them, particularly if they are well settled in the UK's education system.
20.25 Conditions which would not be sufficient in themselves to engage the ECHR may be relevant in meeting a Home Office argument as to the proportionality of interference with family or private life. In a case involving a significant period of residence you may need to show that there would be very significant obstacles to your client's reintegration into her country of origin.
20.26 Where your client enjoys family life in the UK, you might obtain expert evidence as to the conditions her UK-based family would face in your client's country of origin, in order to argue that it would be unreasonable to expect her UK-based family to relocate there with her. This would include whether there would be sufficient health and educational facilities for any children and language and cultural problems. This will often go hand in hand with evidence from child psychologists and independent social workers which is discussed at chapter 26.
Assertions about the behaviour of opposition groups and activists
20.27 As previously discussed, Home Office allegations of implausibility will often be based upon allegations about how the state authorities, opposition groups, your client or indeed anyone else would have acted in a particular situation. Sources will seldom be offered. Many are pure speculation by the caseworker. Some may be misunderstanding of books or articles intended for appreciation by experts. (Chapter 9 deals with requests for further details.)
20.28 Allegations as to how the security forces or opposition groups would have reacted in a particular situation may merit an expert response. The allegation might be that the claimant would not have operated for so long as a sympathiser without obtaining military training. The Home Office may also make claims as to how your client's opposition group would behave when your client fell out with it, e.g. 'The Secretary of State did not find plausible your assertion that this organisation would have pursued you simply because you left it without permission.'
20.29 Expert evidence may ultimately be impossible to obtain on some of the more esoteric claims (experts tending to have a more realistic appreciation of their expertise than Home Office officials). In some cases, it will be useful simply for him to confirm that there is nothing in the relevant learning to support the Home Office's claim. You should still point out that the Home Office has produced no evidence to support its assertion in the face of your client's first-hand evidence to the contrary.
20.30 It will often be alleged that your client's political understanding is too basic when compared to her claimed involvement in her organisation. As indicated in chapter 1, the allegation may be based on the most basic or even facile questions by an interviewer. You may consider seeking expert opinion on the depth of your client's political knowledge (and possibly on the adequacy of the interviewer's questioning). In particular, you may wish your expert to comment upon the degree to which your client's political knowledge is consistent with her claimed involvement. You may well wonder whether it is really necessary to get an expert to point out that the appellant probably became involved because she was told, say, that the party would fight for her own people rather than because it adopted her favourite socialist model but experience shows that it is often better to be safe than sorry.
20.31 Allegations about the implausibility of an appellant's escape route are common. For example, the Home Office's case may be that it is not possible for a wanted person to escape the country using false documents, or that the security forces guarding prisons will not accept bribes to release people.
20.32 Your client can obviously give evidence that this is exactly what happened. However, the HOPO may nevertheless urge the judge to guess that the escape route would not have been feasible, or the guards would not risk taking a bribe, and dismiss the appeal accordingly. He will ask the judge to find that your client's account is not credible, or that if a bribe was accepted then that shows she was not regarded as a serious threat. You could consider requesting further details of the material upon which the Home Office bases its claim (which are unlikely to be forthcoming). But judges regularly accept Home Office claims about escape routes without evidence and it may therefore be important to have expert evidence on such assertions.
20.33 Experts will often be able to comment upon the prevalence of corruption on the part of state officials. It is a subject of academic study. An expert who can describe the mechanics by which bribery operates, for example in facilitating release from custody, will be particularly impressive. NGOs such as Amnesty may also have information on the feasibility of escape routes and methods from different countries. Refugees and interpreters, particularly if they have lived in the country of origin in recent years, can also be a useful source of information on this topic.
The Secretary of State notes that you did not seek or receive any medical treatment for your alleged injuries, which he considered damaged the credibility of your claims to have been tortured.
20.35 You may want to obtain evidence to the effect either that there were no medical facilities available in the area; or that medical facilities in the area were under the control or influence of the security forces.
20.36 The Home Office might even dispute her torture on the basis that anyone so tortured would have confessed. Strange though such allegations may seem, they are often made and are on occasion accepted by judges. Consider asking your expert how common it is for detainees such as your client to experience torture without making confessions.
20.37 A very common allegation is that the appellant would have left the country sooner if she had suffered the persecution she claimed. The expert might comment on how difficult, costly and time consuming organising an illegal exit from the country can be. She may also have been dedicated to her cause or prevented by family obligations from leaving. The expert might explain the particular strength of family obligations in her culture (see further below on cultural considerations).
20.38 Allegations from the Home Office about credibility are often based upon misconceived cultural assumptions. In those circumstances expert evidence, say, from an anthropologist who specialises in the particular country may be especially valuable.
20.39 Where your client is unable to say how her parents arranged her escape from detention or to recount her parents' political activities, this may be claimed to be so implausible as to render your client not credible. An expert might explain that cultural factors actually make it unlikely that your client would make such an enquiry of her parents or that her parents would disclose the information. The Home Office might also take a credibility point against your client on the basis that she waited until her husband's asylum claim had been refused before claiming asylum herself. An expert might again explain that this was culturally consistent.
20.40 Expert evidence may be useful where it appears that an alleged discrepancy is in reality a product of error or inherent difficulty in interpretation. The intrinsic difficulties in interpreting, particularly between languages which have developed in very different cultures, are discussed in chapter 34.
20.42 That is quite apart from the possibility of errors resulting from the use of an under-qualified interpreter, or one who is inappropriate because he speaks a different dialect or because his cultural or ethnic background or gender inhibit communication. Note that these issues do not apply only to interpreters used in Home Office interviews and by the Tribunal. Your own role in choosing an interpreter is dealt with in chapter 11. But if issues have arisen as to the accuracy of a statement taken by a previous representative, you may also wish to investigate whether the interpreting was appropriate.
20.43 An experienced and reliable interpreter will be an obvious source of expert evidence on many of these questions. However, be careful that the interpreter is not making the same instinctive assumptions as had contributed to the original problem (e.g. equating police charging procedures that are not in fact equivalent). An anthropologist who is proficient in the language of the country or ethnic group he studies may be both more alert to these issues and better able to explain to the court the cultural context in which the problems arise.
20.44 Questions of foreign law often arise. In an asylum claim there may be an issue about the legal consequences of a failure to comply with conditions of bail or the discovery by security forces that your client is a member of a banned political or religious group. Issues of nationality often arise, which may have a bearing on the country to which your client can lawfully be returned and therefore where she needs to show a risk of persecution or serious harm. In an Article 8 claim there may be an issue as to the legality of a marriage or the custody rights of a divorced parent, or whether your client's family members would lawfully be able to join her in her country of origin.
20.45 Questions of foreign law are conventionally treated in English law as questions of fact, to be proved by expert evidence. This applies as much in this jurisdiction as in any other. As the Upper Tribunal explained in CS and Others (Proof of Foreign Law) India  UKUT 00199 (IAC):
It is long settled that in United Kingdom legal proceedings, foreign law is capable of being proved by the evidence of a person possessing demonstrated expert credentials. This, in our experience, is the norm in a broad range of litigation fields. It is illustrated in the recently reported decision of the Upper Tribunal in R (Hassan and Karada) (Returns to Malta – Dublin Regulation) IJR  UKUT 00452 (IAC). Evidence presented in this way need not necessarily be viva voce. Rather, an expert's report, satisfactory in both form and content, can be acceptable. The burden of proof rests on the party relying upon the relevant foreign law. Any question of foreign law is one of fact. Judicial notice of foreign law is rarely appropriate. The general principles are rehearsed in Halsbury's Laws of England (2015), Volume 12 (2015) at .