by Mark Henderson and Rowena Moffatt of Doughty Street Chambers
and Alison Pickup and Monika Nollet of Asylum Aid
~ Revised 2023 Edition ~
Non-disclosure at Home Office interview
Non-disclosure in previous statement
Late evidence provisions in the Nationality and Borders Act 2022
13.1 As discussed at para 12.7, you may find that important aspects of the case were not properly presented in the initial application to the Home Office, either in the asylum interview or in any statement.
13.2 The Home Office regularly claims that the late disclosure of such matters raises credibility issues, particularly if it involves a complete departure from the case previously put. However, its own Asylum Policy Guidance on Assessing Credibility and Refugee Status advises case workers that:
There are many factors that can affect memory. A claimant may have come from traumatic or otherwise challenging situations and so it is possible that their account will not be consistent in every detail. You must always take the totality of a person's circumstances into account and consider any personal factors which may explain why a claimant's testimony is inconsistent with other evidence, lacking in some detail or there has been late disclosure of evidence. These factors may include, but are not limited to:
• 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
The first thing you have to do is to explain fully why the information was not put forward previously.
13.3 Non-disclosure will often be the result of inadequate or inappropriate representation. A woman may have felt unable to disclose sexual torture to a man. Insufficient time may have been allowed to elicit evidence of traumatic experiences. The appellant's mental health may have inhibited disclosure.
13.4 Your client may also have been reluctant to offer information because of concerns about where the information may end up. She may fear the Home Office making enquiries that could alert the authorities in her country of origin. Or she may be more concerned about disclosure to her own community. Examples are where your client has acted against the interests of opposition groups which are influential in her refugee community or where her claim is based on matters which might lead to discrimination on cultural/social/religious grounds from her community, e.g. sexual orientation, or where she has suffered sexual torture for which she fears she may be stigmatised. The Home Office's Asylum Policy Guidance on Assessing Credibility and Refugee Status recognises that:
The shame and trauma that a person has experienced as a result of gender-based harm may, however, result in their oral testimony being less than complete, coherent or consistent. Please refer to underlying factors for more information. It may also mean that they delay disclosure of particularly traumatic events such as, for example, incidents of sexual violence.
…
Further, the barriers to disclosing sexual violence include shame and avoidance of past traumatic events. A claimant's oral testimony may not be a complete chronological narrative.
…
where a claimant is severely traumatised or where cultural norms, shame or difficulties in disclosing intimate information may make it difficult for them to disobey instructions or disclose key information earlier, for example in claims from LGBT+ persons…
13.4A The Tribunal's Child, Vulnerable Adult and Sensitive Appellant Guidance recognises that "the order and manner in which evidence is given may be affected by mental, psychological or emotional trauma or disability" (10.3) and advises judges considering discrepancies in oral evidence to "consider the extent to which the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity" (para 14).
13.5 You should explain the avenues available to protect the confidentiality of information provided in the appeal (although you may also have to warn her about the limitations of the Home Office's confidentiality undertaking: para 32.2). It may be useful to seek an anonymity direction at immediately after lodging the appeal , so that your client can make her witness statement in the knowledge that the arrangements to keep her evidence confidential are already in place.
Non-disclosure at Home Office interview
13.6 Home Office interviews are often flawed. (See eg para 1.26B) The closer an interview is conducted to a claimant's arrival in the UK, the greater the risk of mistakes and injustice. The risk is most acute if an interview is conducted at the port following arrival, although this is now very unusual for a substantive interview. The claimant is likely to have endured a dangerous journey, quite possibly putting her life at risk. Very often, such interviews are conducted without allowing the asylum seeker legal advice or representation. (Indeed, the Immigration Service has in the past insisted on conducting the interview before a legal representative arrives, even having been informed that he is on his way.) There are frequent accounts by asylum seekers of impropriety by the Home Office both before and during such interviews. The interpreter (and interviewer) may be unsuitable on gender and other grounds (see eg para 1.26B). The Home Office may not have followed its policy of making every effort to comply with requests for an interviewer or interpreter of the same sex.
13.7A The Home Office's API on Gender Issues in the Asylum Claim says that:
While the substantive asylum interview represents the claimant's main opportunity to all relevant evidence, disclosure of gender-based violence at a later stage in the asylum process should not automatically count against their credibility. There may be a number of reasons why a claimant may be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family 'honour', or fear of family members or traffickers, or having been conditioned or threatened by them.
When interviewing, you must be sensitive to the fact that gender and cultural norms may play an important role in influencing demeanour, for example, how a woman presents herself physically at interview for example whether she maintains eye contact, shifts her posture or hesitates when speaking. Therefore, demeanour alone is an unreliable guide to credibility.
Those who have been sexually assaulted and or who have been victims of trafficking may suffer trauma that can impact on memory and the ability to recall information. The symptoms of this include persistent fear, a loss of self-confidence and self-esteem, difficulty in concentration, an attitude of self-blame, shame, a pervasive loss of control and memory loss or distortion. You must be alert to this and how such factors may affect responses during interview. For further guidance see the Asylum interviews guidance. (p32)
13.7B In AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC), the Upper Tribunal accepted that a woman who had escaped from her traffickers in the UK and then was arrested trying to leave the UK to return to Thailand had not thereby fatally undermined her case that she feared persecution in Thailand. Having referred to the horrific and prolonged sexual abuse which she had suffered at the hands of her traffickers, it continued:
We do not find that by seeking to return to Thailand instead of approaching the authorities in the UK and claiming asylum, that the appellant showed a lack of fear of persecution. We note the UNHCR guidelines which advise that women may feel ashamed of what has happened to them or may suffer from trauma caused by sexual abuse and violence (paragraph 48). The evidence we have before us confirms that the appellant experiences feelings of defilement, shame and a lack of self-worth. We also note the findings of Rodger Haines QC in his paper on gender related persecution prepared for the UNHCR's San Remo expert round table in 2001 (referred to by Lord Bingham in Fornah and K and in Ms Brewer's skeleton argument). On the issue of how trafficked victims reacted when they encountered the authorities, he warned that they are highly unlikely to reveal what happened to them and that they often disclose a distrust of the authorities in the host state. We also note that it is unlikely that the appellant would have been in a situation where only female officials would have been present and we find that the presence of male officials would have made it even less likely that she would have felt able to disclose her problems to the authorities. We note that the API gender guidelines advise Home Office caseworkers that such an applicant's failure to disclose information relating to her claim should not automatically count against her as there may be many reasons for this including feelings of guilt and shame. Ms Skrivankova also gave evidence that in her experience it was very uncommon for trafficked women to denounce their abusers to the authorities when first encountered. (para 116)
The Tribunal later expressed its surprise that
...the appellant's failure to disclose her history 'earlier' was held against her, particularly as the respondent's own guidelines advise caseworkers that the failure of a trafficking victim to disclose information should not count against her as it can be explained by many reasons. (para 170)
13.7C In Joined Cases C-148/13 to C-150/13 A, B, C v Staatssecretaris van Veiligheid en Justitie (Directive 2004/83/EC), 2 December 2014, the CJEU considered the correct approach to assessing asylum claims based on sexuality under Article 4 of the EU Qualification Directive. In relation to the significance of late disclosure in the context of such claims it said that:
67 In the fourth place, as regards the option for the competent authorities finding a lack of credibility when, in particular, the applicant did not rely on his declared sexual orientation on the first occasion he was given to set out the grounds for persecution, it must be held as follows.
68 It is clear from Article 4(1) of Directive 2004/83 that Member States may consider it the duty of the applicant to submit 'as soon as possible' all elements needed to substantiate the application for international protection.
69 However, having regard to the sensitive nature of questions relating to a person's personal identity and, in particular, his sexuality, it cannot be concluded that the declared sexuality lacks credibility simply because, due to his reticence in revealing intimate aspects of his life, that person did not declare his homosexuality at the outset.
70 Moreover, it must be observed that the obligation laid down by Article 4(1) of Directive 2004/83 to submit all elements needed to substantiate the application for international protection 'as soon as possible' is tempered by the requirement imposed on the competent authorities, under Article 13(3)(a) of Directive 2005/85 and Article 4(3) of Directive 2004/83 to conduct the interview taking account of the personal or general circumstances surrounding the application, in particular, the vulnerability of the applicant, and to carry out an individual assessment of the application, taking account of the individual position and personal circumstances of each applicant.
71 Thus, to hold that an applicant for asylum is not credible, merely because he did not reveal his sexual orientation on the first occasion that he was given to set out the grounds of persecution, would be to fail to have regard to the requirement referred to in the previous paragraph.
(see the Introduction to this edition for the continuing relevance of CJEU judgments)
13.8 Talk through with your client why she did not raise the matter at the interview. Be careful that she does not feel pressurised into giving a misleading explanation for why she did not disclose the information. For example, a client who did not reveal details of sexual torture because everyone in the room was male might not realise that this is an acceptable explanation, and so may simply say that she was never asked or she was not feeling well.
13.9 It may well be that no appropriate question was asked, and that will often be a perfectly good explanation. It is common, for example, for dates of detentions to be taken but no follow up questions asked about treatment during detention. It is equally common for apparent inconsistencies not to be put to the claimant, even if they are subsequently relied upon in the refusal letter. But you need to give detailed consideration to the interview notes. If your client says that she misunderstood a question, check whether that is borne out by the answer which is recorded. If it does appear that an appropriate question was asked, or the answer suggests that your client understood the point she was being asked to address, you will have to discuss with her whether the explanation can be maintained.
13.10 If your client says that the interviewer's or interpreter's tone was hectoring or inappropriate or the interpreter was difficult to understand, you may be able to find support for this assertion by listening to the audio recording of the interview (if necessary with the assistance of your own interpreter) or, sometimes, there may be support for this in interview notes themselves. The immigration officer sometimes records his own inappropriate questions or comments. Answers may be recorded that are so obviously wrong as to indicate fundamental interpreting problems. The concerns are magnified if there is no evidence that such warning signs were acted upon by the interviewer.
13.11 There may also be a question over the accuracy of the interview notes. These will normally have been written or typed by the interviewing officer during the interview. Your client will not normally have been given a chance to read the notes at the time (and they will not have been read to her by the Home Office). She should, however, have been given an audio recording against which the notes can be checked.
13.12 You should always check the Home Office notes against the notes taken by your client's representative if present. If you did not represent her in her initial application and previous representatives attended the interview, ask for the clerk's notes of the interview if these have not already been provided to you. The Home Office is obliged to record the interview on request if the claimant does not have a representative at the interview (R (Dirshe) v SSHD [2005] EWCA Civ 421), and its practice is now to audio record all interviews.
13.13 Competent representation at interview can be vital to the fairness of the interview: see para 18 of Dirshe [2005] EWCA Civ 421. A representative can pick up misunderstandings by the interviewer that would otherwise distort the assessment of the claim. The HOPO will often rely upon the representative's presence as evidence of the fairness of the interview. However, you will occasionally find that representation at the interview was incompetent. That is worse than useless for the client since the presence of a representative and his interpreter may confer an apparent legitimacy upon the interview whereas in reality, they did nothing to protect the claimant from improprieties. The quality of the clerk's note of the interview may give some guidance as to the quality of the representation. Check what protest was made at the interview about any impropriety and what instructions were taken from the client after the interview, and why no complaint was made after the interview. If the notes do not supply sufficient information, try to obtain the comments of the clerk who attended. If it appears that both clerk and interpreter were competent and they spotted no error, you will have to discuss with your client whether it is credible to maintain her complaint at this stage, at least if there is no recording you can check.
Non-disclosure in previous statement
13.14 You may find that a previous statement is inadequate and/or inaccurate. In those circumstances, you will have to take a full statement for the appeal and explain why the statement previously submitted cannot be relied upon. That may be because:
• the interpreter was incompetent;
• the interpreter altered the client's evidence during translation;
• the client was pressurised to say things which were untrue;
• the client was pressurised to avoid criticising particular organisations;
• the statement was taken by a representative who
• was not properly qualified for the job;
• allowed an inadequate time to take the statement;
• failed to ensure that the interpreter performed his role properly;
• failed to investigate relevant aspects of the case;
• filled in gaps or uncertainties by reference to his own preconceptions;
• Took the first answer he obtained without checking it through further questioning;
• failed to read the statement through with the client before submitting it. (As to the significance of the last step, refer to the Tribunal's guidance in Njehia v SSHD (16523), para 12.66.)
13.15 It is one of the ironies of this jurisdiction that the Home Office never tires of professing its concern about alleged incompetence and lack of scruples on the part of some representatives. Yet the moment the HOPO spots an omission or inconsistency which he thinks he can use to discredit the appellant, the representative who took that statement metamorphoses into a model of competence and commitment, quite incapable of fabrication or pressurising a witness to distort her story. He may no longer even be an over-worked, under-paid, unqualified caseworker whose main aim (along with his similarly inept interpreter) is to get five pages of 'statement' typed out in the shortest time possible. According to the HOPO, it will be beyond doubt that this particular representative is a paragon of propriety and therefore similarly beyond doubt that any defect in the statement he took can only evidence the appellant's dishonesty.
13.16 You should in any event comply with the Tribunal's caselaw to the effect that any allegation of misconduct should be put to the previous representatives and the response if any submitted to the Tribunal (see para 8.52A).You should therefore explain in as much detail as possible why the statement cannot be relied upon. If you simply assert that the previous representatives acted improperly or incompetently without giving any particulars, the judge may accept the HOPO's claim that your allegations are made simply to dispose of an inconvenient statement.
13.17 The new witness statement should clearly set out what went wrong. Name the people involved. That is commensurate with the seriousness of the complaint. Explain in so far as relevant;
• the circumstances in which the statement was taken;
• how long was allowed;
• the behaviour of the interpreter;
• what questions were asked and to what extent she was invited to offer additional information;
• whether the statement was translated back to her before she signed it and whether she had an opportunity to amend it.
13.18 If you have not received any file from the previous solicitors, or the file does not contain entries relevant to the statement, consider requesting these from the previous solicitors. The file is obviously unlikely to contain a confession that a representative or interpreter acted improperly. But the nature or absence of paperwork may indicate that proper procedures were not carried out. If the file lends support to your client's complaints, you may consider doing a witness statement yourself. (Since it is you who reviewed the file, this is preferable to including the information in your client's statement.) If you need to see exactly what has been and has not been submitted to the Home Office, you can make a subject access request: see 9.41A-K.
13.19 You should also consider reporting the previous representatives to the OISC and/or the SRA or Legal Ombudsman. This will not only assist future claimants. It will also emphasise to the Tribunal the gravity of your complaint through focussing upon the real issue of how your client has been endangered by the failings of her representative, rather than the advantage that the Home Office is seeking to extract from these failings.
13.20 If you are disclosing significant information late, especially if it is inconsistent with previous material, you should strive to include as much detail as possible in the witness statement.
13.21 There will be occasions when the new information being given by your client is not central to the case and does not affect the accuracy of the information already disclosed. Late disclosure may then be an unnecessary distraction. To include it may simply waste court time by encouraging prolonged cross-examination by the HOPO seeking to identify 'discrepancies' in peripheral detail. It is perfectly proper to suggest to your client that the information is not material to her case and is best left out of the appeal statement.
13.22 Genuine refugees may also seek to exaggerate their claims. A desperate fear of expulsion is not inconsistent with a willingness to embellish in order to escape refoulement – particularly if the Home Office has refused the claim with what appears to the refugee to be a ridiculous belittling of her fears and experiences. It is also not uncommon for genuine refugees to be advised, unhelpfully, as to what they should say to the Home Office by people they meet in or en route to the UK. If you suspect this may be the case, you can take a dated statement (so that further delay should not be held against your client), but explain to her the allegations that will be made against her and give her time to reconsider before the material is disclosed. If the Home Office has not challenged credibility in the refusal letter, it will be particularly important to avoid giving the Home Office grounds to change its position (see para 30.4).
13.23 Equally however, you should not be overly frightened of unfair allegations of inconsistency from the Home Office. If your client has relevant evidence to give which has not yet been submitted then it will often be wrong to advise that it should not be submitted purely to avoid Home Office allegations of inconsistency. The Tribunal has been critical in cases such as Kasolo v SSHD (13190) of such allegations based purely on an asylum seeker expanding on the reasons for which she seeks asylum. But you must be properly prepared to deal with the allegations which may arise.
Late evidence provisions in the Nationality and Borders Act 2022
13.23 When faced with a client who has made a delayed disclosure, if their asylum application was submitted on or after 28 June 2022, you will need to consider the effect of provisions on late evidence brought into force by the NABA 2022. The NABA amends section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to include late evidence as behaviour to which it applies: see discussion of section 8 at paras 1.44A-H.
13.24 Given the well-established case-law on section 8 of the Asylum and Immigration (Treatment of Claimants etc) (eg SM (Iran) [2005] UKAIT 00116 and JT (Cameroon) [2008] EWCA Civ 878), which requires a holistic assessment of credibility in cases where section 8 is engaged and places the question of weight firmly within the hands of the judge, the underlying or personal factors which may explain late evidence (see paras 13.2-5) will be relevant to the section 8 assessment.
13.24 The NABA 2022 further sets out consequences of providing late evidence in section 26. The reference to 'late' evidence is by reference to a new procedure established by s18 of NABA 2022 whereby the SSHD may serve a person who has made a protection or human rights claim with an 'evidence notice.' This requires a person to provide any evidence in support of the claim before a given date, or if served late, to provide a statement of reasons for the delay. By section 26 of NABA 2022, evidence provided on or after the date in the evidence notice, or after the deadline for response in a Priority Removal Notice, is deemed to be 'late'.
13.24 Section 26(2) states that: 'Unless there are good reasons why the evidence was provided late, the deciding authority must, in considering it, have regard to the principle that minimal weight should be given to the evidence.' A "deciding authority" is defined as an immigration officer, the Home Office, the First-tier Tribunal, the Upper Tribunal in some circumstances and SIAC.
13.25 As the Home Office's caseworker guidance ' Assessing Credibility and Refugee Status recognises, there are often good reasons for delayed disclosure, not least due to trauma (see further paras 13.2-5). Notably, the requirement in section 26 is for decision-makers to 'have regard to' the principle that minimal weight be given to the evidence. This is arguably a weaker requirement than section 8.
13.26 In an appeal where your client makes a delayed disclosure, therefore, you will need to focus on the explanation for this in arguing that there is good reason. In this respect, the NABA 2022 makes little change to the existing position whereby in the absence of good reason for a delayed disclosure, a judge would be entitled - and indeed likely - to treat that evidence with some scepticism. It will be necessary to explain in detail the reasons for the delayed disclosure in your client's statement and, where relevant, to corroborate it with medical evidence.
13.27 Section 26 also applies to Home Office decisions about whether to certify a claim as clearly unfounded under s.94 of the 2002 Act (see chapter 3) and whether to accept or reject further submissions.