Issues with credibility assessments in asylum law: wide margins of subjectivity and irrationality?

Refugee law is a legal discipline within which intense political interest and significant cultural consequences are raised. The assessment of credibility and the burden of proof are core issues in asylum procedures. In asylum law, most cases are arguably decided on the basis of credibility assessment rather than on legal issues. Information extracted (from reports, explanations and interviews) from asylum applicants based on their fear of prosecution, their situation in their homeland in general and their travel to the state where the asylum application is filed.

The first part of this article highlights some general obstacles that exists in assessment of credibility of evidence in asylum cases. The second section examines the ways IND deals with the question of credibility. It further highlights the issues (and substantive problems) on proof and credibility in the Dutch system. The last part discusses the importance of evidence assessment in asylum cases at the European Court’s level.

Complex and challenging aspects of assessment of credibility of evidence in asylum law

There are several problems that makes the assessment of credibility of evidence very problematic in asylum cases:

The national authority (administrative or judicial) who handles the problem of determining who a refugee is, is confronting and controlling an applicant who has left her/his country with very limited resources. Asylum procedures are affected by different issues: The challenging nature is due to the important role of a single means of proof, namely the applicant’s account. Here, more challenges are present: the account of the applicant emerges from a foreign context, is in a foreign language and accompanied by character and other cultural attributes which are not familiar to the adjudicator. In some cases, the effects of trauma, depression or other medical issues need to be added to the list of obstacles. Most applicants have immigrated through a human smuggler, who might have advised them to destroy travel and identity documents, to use forgeries and to give a prefabricated and standardized account of persecution.

Another issue, is the inconsistency in statements: For a statement to be credible, it must first of all not be inconsistent. Applicants may provide conflicting statements about dates, places and persons. Such inconsistency in many cases originate from the fact that asylum applicants may be afraid of officials or simply nervous to provide the officials with accurate information.  Some inconsistencies may also be the result of cross-cultural miscommunication.

The asylum applicants may testify about their situation but for various reasons will rarely be in a position to substantiate their statements with documents or be able to produce other evidence to verify these statements. The growing body of information on countries of origin may also cause complexity to the applicant’s story. Another major problem is the existence of database versus a personal testimony: the authorities of the country of origin cannot be involved, given that they might indeed be persecutors. Moreover, witnesses and case-specific documents are rarely available. Where the applicant indeed introduces documents into the procedure, the assessment of their authenticity and significance might prove more difficult than they would be in the domestic domain or other legal fields.

Expert testimonials in medical or linguistic issues or embassy reports on the existence of specific risks add further elements. Translators, interpreters, medical and other experts acquire critical importance as mediators, while the quality of their work is usually beyond the scope of review mechanisms. As a rule, access to the territory of putative asylum countries is unavailable by legal means.

The 1951 Refugee Convention requires the existence of a ‘a well-founded fear’. The statement of the applicant and its credibility is therefore related to the psychological and communicative aspects of a lawsuit. An accurate and free statement of the applicant as early as possible is therefore crucial to a correct handling of the application. The statement of the applicant is not only important, but often the only evidence providing the concrete circumstances of the applicant’s country of origin. This focus may explain that an analysis of the statement is an important method to reach a decision in the case. The asylum seeker bears the risk of losing the case if s/he does not provide enough credible statements to cover the facts in issue.

The UNHCR Handbook places the burden of proof on the asylum seeker. The focal point of the asylum investigation is thus an interview with the applicant by an examiner at the first instance. The purpose of the inquiry is to test if the original suspicion that the asylum seeker risks persecution in the country of origin is supported by evidence. It is, therefore of crucial importance that interviews with asylum seekers are conducted objectively and penitently. The officials must also ensure that they understand the statements of the asylum seeker correctly before they put forward any assumptions. This means that asylum determination officials have to ensure that their decisions are based not only on clues provided by the applicant but also on all of the relevant information available relating to the elements of the refugee definition and the non-refoulement rule in view of the individual situation of the applicant. It has also been argued that if there is doubt about the applicability of the non-refoulement rule it should be applied. When in doubt, abstain from removal! This is the proper meaning of the term “benefit of the doubt” in the asylum context. [1]

Dutch system

In the asylum procedure the credibility assessment plays an important role, because the credibility assessment to a large part determines the material facts which are taken into account in the final risk assessment and the analysis whether or not the applicant qualifies for a residence permit asylum on the basis of eligibility for international or subsidiary protection (i.e. the analysis of the well-founded fear of persecution and real risk of serious harm).

The first step is the identification and determination of the material facts of the asylum claim. In the Netherlands, officers of the IND assess the applications. The initial interviews take place upon arrival and concern their identity, nationality and travel route. In the first interviews the emphasis is mostly on dates, times, places, and names. During the first interviews officers are forbidden to probe on situations that may lead to the asylum request (which is mainly the subject of the second interview). Even though the first interviews maybe regarded as formalities, in practice, they play an important role in assessing credibility of evidence.

In the second interview, the IND asks the applicants to explain the problems they may have had and the reasons why they left their country. The applicant’s credibility of statement is mainly examined in two ways:  the first method is to probe and confront the claimant with contradictions and supposed inconsistencies whereas the second method is more focused on detailed information that IND officers verify with country information. Questions may concern anything about geographical aspects, local buildings, local food, and cooking. Children from the age of 15 are interviewed separately from their parents.

The IND in how it assesses an asylum request gives the following explanation: The first questions a decision maker asks himself are: is the asylum seeker’s story credible? Does the asylum seeker tell a coherent story? Did he give correct information? Does the IND believe he has told the truth about his whereabouts and what had happened to him? Did he show documents that are genuine?

The interviews that the IND is having during an asylum procedure are long. The IND sometimes asks questions multiple times, for example to check if the asylum seeker makes the same statements again and again. The IND checks the information given by the asylum seeker as much as possible, for instance by using maps or consulting experts. When the statements of the asylum seeker are not credible, then the request can be denied.

In finding a story credible the IND mainly examines the following:

  • Whether the asylum seeker in his/her own country fear for persecution because of his/her race, religion, nationality, political convictions or because he/she belongs to a certain social group
  • Whether the asylum seeker in his/her own country risks serious damage, for instance: the death penalty, torture and inhumane or humiliating treatments/penalties
  • Whether there is an armed conflict in the asylum seeker’s country where random violence is used; In this respect the asylum seeker must show that he/she is being threatened in person by this violence.
  • Whether the asylum seeker is a first-degree relative of an admitted asylum seeker in the Netherlands

When the answer to one of these four questions is positive, then the asylum seeker will be granted an asylum status. This means that he is allowed to stay in the Netherlands temporarily. There are, however, certain grounds for refusal: For example, if granted asylum the asylum seeker is not allowed to commit crimes or be a threat to public policy or national security. If so, the request can still be denied.

In the Dutch system, it needs to be considered whether one of the circumstances set out in Article 31 (2) (a) to (f) Aliens Act 2000 or stipulated by the Council of State applies. If the applicant falls within Article 31 (2) (f) i.e. “…unable to produce a travel document, identity card or other papers necessary for assessment of his application, unless the alien can make a plausible case that he is not to blame for their absence,” an assessment of accountability, namely whether the applicant has made a plausible case that he or she is not accountable for the absence of documents considered necessary for the examination of the application. This involves an assessment of whether the applicant’s statements are consistent and credible; and consistent with otherwise known information (the situation in the country of origin or place of habitual residence).  If Article 31 (2) (a) to (f) or another circumstance stipulated by the Council of State applies, the credibility of the applicant’s statements may be considered undermined in advance. The applicant therefore has to be more convincing in his or her statements (‘positively persuasive’) than would otherwise be the case and a higher threshold of credibility may apply with regard to the applicant’s statements. If Article 31 (2) (a) to (f) or another circumstance stipulated by the Council of State does not apply, the applicant’s statements must be consistent in outline and fit with what is known about the country of origin or place of habitual residence.

The guidelines stress that information from interviews must originate from ‘free production’ and applicants must be given the opportunity to speak freely about their motives and as much as possible no interrupting questions should be put forward.[2] In practice, however, the main interview in some certain cases may be conducted through a repetition of questions from the first interview and the officer may strictly control the applicant’s narration. Psychological mechanisms in general affect the communication process. A wide-range of factors influence these psychological processes, including age, gender, sexual orientation and/or gender identity, culture, social status, education, state of health, and mind-set at the time of the interaction. Results from Dutch case studies show that in more than half of the interviews communication problems affect the assessment of credibility and fact-findings.[3] Apart from these problems, three major problems are listed below in assessing the evidence in the Dutch system. These problems may occur in an accelerated procedure more often than in a normal procedure.[4]  

  1. The asylum applicant may not be able to fully provide the authorities with information and relevant facts, due to trauma, disorientation or other factors mentioned in the previous section
  2. The asylum applicant does not submit enough documents, because they were either left at home (for example because it was risky to bring them) or were destroyed or handed over to the smuggler.
  3. The administration makes mistakes due to temporal pressure.

In principle, asylum seekers are required to have documents on four points: identity, nationality, travel route and flight motives.[5] The Council of State has ruled that it is up to the Minister to decide which documents should have been submitted in the particular case.[6] It has been argued that in the Dutch asylum system, even when an asylum seeker has submitted documents testifying to her/his identity, the lack of travel documents may be held against her/him and that the lack of documentation has become an independent ground for rejecting asylum applications.[7]

Specific kinds of reasons for persecution or a risk of serious harm, such as gender related violence, sexual orientation or religious conversion can be especially challenging with regard to the credibility assessment. Besides issues of shame or anxiety towards family or other persons, which might cause applicants to be uneasy to fully prove their claim, the assessment of the credibility of statements related to sexual orientation or religious conversion can be problematic, as these issues involve internal processes of feelings and belief which are not susceptible to a one fits all label or approach. Although authorities usually have guidelines, providing guidance in assessing the credibility of statements related to material facts involving LGBTI elements, the credibility assessment in this respect will always be challenging.

In the Netherlands, changes in government policy regarding the credibility assessment (entered into force on January 2015) introduced the ‘integral credibility assessment’, which cancelled the doctrine of ‘positive persuasion’. The ‘integral credibility assessment’ has changed in the sense that facts or circumstances can only influence the credibility of a material fact negatively, when they are linked to that material fact, which depends on the context. In the credibility assessment under the doctrine of ‘positive persuasion’ certain circumstances would automatically negatively influence the credibility of all other material facts. For instance, when the applicant did not have any travel documents, this could affect material facts that had no contextual link with these travel documents. Other material facts in the asylum claim, such as an alleged abuse in the country of origin, could require a bigger burden of proof as a result of not being able to submit travel documents, although a lack of travel documents is not related to the alleged abuse in the country of origin. The ‘integral credibility assessment’ has ended this practice by requiring facts, documents or circumstances, which influence the credibility of a material fact, to have a contextual link with that material fact.

The Dutch government intended to guarantee a ‘full and ex nunc judicial review’ by using the ‘integral credibility assessment’ to enhance the motivation of the decision on the application for a residence permit asylum. Such an improved motivation allegedly enables the court to more comprehensively review the decision on the application for a residence permit asylum, without itself taking a new decision.[8]

Some academic studies have argued that in asylum cases the judicial review of the European Court of Human Rights was more thorough than the judicial review of Dutch district courts and that the Dutch marginal review of the credibility assessment in asylum cases is violating EU and international law. The problem with a marginal judicial review of the credibility assessment can, arguably, be that once a fact or circumstance in an application for international protection has been deemed not credible by the IND, the determination of facts might not be fully reviewed by the judiciary, because the court only examines the lawfulness of this part of the return decision by reviewing it in the light of the grounds of appeal and principles of good administration.[9]

European system

It is evident that the 1951 Refugee Convention does not contain explicit norms governing the status determination procedure and evidentiary assessment. In addition, the Convention contains neither an objective nor a subjective element to describe a “well-founded fear”. Neither the Asylum Procedures Directive nor the Qualification Directive explicitly or comprehensively prescribe how the credibility assessment should be carried out. It remains for the national authorities and, in the last instance, the national courts to decide directly on asylum claims. However, the case-law of the European Court of Human Rights (hereinafter: ECtHR) is also in many cases relevant. The other European court, the European Court of Justice (hereinafter: ECJ), has also developed a significant body of case-law in the field of asylum as part of the creation of an EU area of freedom, security and justice, interpreting instruments such as the EU Qualification Directive. On the basis of article 78 TFEU the EU has developed a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement (Common European Asylum system). The CEAScomprises of the Dublin Regulation, the Qualification Directive, the Asylum Procedure Directive, the Reception Directive and the Temporary Protection Directive. These legal sources of secondary law hold certain binding obligations for the Netherlands in general. National courts in these proceeding must implement in practice the case-law of both European courts.

As the CJEU is dependent on national courts to ask preliminary questions, it has a limited role in providing case law regarding the question how the credibility assessment should be conducted. Consequently, in order to identify standards on the credibility assessment in EU law the following sub-section, firstly, analyses relevant provisions in EU law in the light of relevant legal principles of EU law and, secondly, resorts to analogous reasoning inspired by case law in other areas of EU law. Primary and secondary EU law oblige Member States to individually, objectively and impartially conduct the credibility assessment. Factors which should be taken into account in assessing the credibility of unsubstantiated statements are: the moment that an applicant applied for international protection; the (moment that) documents or statements which have been presented; the general credibility of the applicant; the degree of detail in his statements; the coherency, consistency and plausibility of his statements; and any explanations for any adverse findings.

Applicants for international protection must be afforded the opportunity to contradict and explain any opposing credibility arguments which have led to the return decision. The motivation of the credibility assessment should be given in writing and should explain specifically and concretely why statements are not found credible by including the underlying reasons for negative credibility arguments.

Credibility findings have to be explained and supported by the evidence. Where the determining authority finds a lack of credibility, there must be a basis or foundation in the evidence. This derives from the requirement that the assessment of the application must be individual, impartial, and objective.[10] It finds further support in the case law of the European Court of Human Rights, which suggests that the assessment of credibility should be based on the examination of the statements and the documents submitted in support of the claim. The Court further indicated that the credibility of such statements should be questioned only where inconsistencies affect the core of the applicant’s story.[11]

Below is some of the important decisions of the ECtHR:

With regard to extended reasoning on the precise issue of the assessment of credibility and the burden of proof, the ECtHR has delivered two Grand Chamber judgments in asylum matters. Those cases are F.G. v. Sweden and J.K. and Others v. Sweden. In both cases the Court addressed a number of issues. Concerning more specifically the assessment of credibility and the burden of proof, the following principles were either reiterated or established:

The subsidiary role of the Court: The Court stressed that it was not its task to substitute its own assessment of the facts for that of the national courts. The Court acknowledges that as a general rule, it is for national courts to assess the evidence before them since they are in the best place to do so. However, the Court must be satisfied that the assessment made by the national authorities is adequate and sufficiently supported by domestic materials, as well as by materials originating from other reliable and objective sources.

Risk assessment and burden of proof: in relation to this issue, the Court formulated two general rules: 1. it is, in principle, for the individuals to submit, as soon as possible, their asylum claim together with the reasons and evidence in support of that claim; and 2.“it is the shared duty of an asylum-seeker and the immigration authorities to ascertain and evaluate all relevant facts of the case in the asylum proceedings”.[12]

General and individual risks: Beyond these general rules, the Court made a clear distinction between when an asylum claim was based on a “well-known general risk, when information about such a risk is freely ascertainable from a wide number of sources”, the Article 2 and 3 obligations on the State are such that the authorities are required to carry out an assessment of that general risk of their own motion.

As regards asylum claims based on individual risk, the Court, in spite of recognising that it is important to take into account all of the difficulties which an asylum-seeker may encounter in collecting evidence, reminds that Articles 2 and 3 did not require a State to discover a risk factor to which an asylum-seeker had not even referred. As a general rule, “an asylum-seeker cannot be seen as having discharged the burden of proof until he or she provides a substantiated account of an individual, and thus a real, risk of ill-treatment upon deportation that is capable of distinguishing his or her situation from the general perils in the country of destination”. The Court’s clarification is based on its own case-law, relevant UNHCR materials and the EU Qualification Directive. The Court added, however, that if the State had been “made aware of facts, relating to a specific individual” that could expose him or her to a relevant risk of ill-treatment on expulsion, the authorities were required to carry out an assessment of that risk of their own motion.

Special considerations regarding past ill-treatment: The Court considered that established past ill-treatment contrary to Article 3 would provide a “strong indication” (in French: “un indice solide”) of a future, real risk of ill-treatment, although it made that principle conditional on the applicant’s having made “a generally coherent and credible account of events that is consistent with information from reliable and objective sources about the general situation in the country at issue”. In such circumstances, the burden shifts to the Government “to dispel any doubts about that risk”.

Ex nunc assessment: the relevant point in time for the assessment is that of the Court’s consideration of the case. A full and ex nunc evaluation is required where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken.

Author: Shabnam Tautan

[1] A. Popovic, Evidentiary assessment and non-refoulement: insights from criminal procedure in Proof, evidentiary assessment and credibility in asylum procedures, Martinus Nijhoff Publishers

[2] Aleins Circular C 12/4.2.

[3] Nienke doornbos, On Being Heard In Asylum Cases: Evidentiary Assessment Through Asylum Interviews, p. 121

[4] Thomas spijkerbroek, Gender, sexuality, asylum and European human rights (see more in his article how he argues that the massive use of the accelerated procedure with its strict time limits creates tension with the European Convention on Human Rights.)

[5] Vreemdelingencirculaire 2000, C1/5.8.2.

[6] Afdeling bestuursrechtspraak van de Raad van State 31 October 2002, Jurisprudentie Vreemdelingenrecht 2003/2; Afdeling bestuursrechtspraak van de Raad van State 16 May 2003, Jurisprudentie Vreemdelingenrecht 2003/293.

[7] Thomas spijkerbroek, Stereotyping And Acceleration – Gender, Procedural Acceleration And Marginalised Judicial Review In The Dutch Asylum System

[8] Explanatory memorandum of the amendment to the Aliens Act(memorie van toelichting), Kamerstukken II, 2015, 34088, 3, pp. 21 and 22; Nota naar aanleiding van het verslag, Kamerstukken I, 2015, 34088, E, pp. 6-8; 

[9] D. Baldinger, ‘Grondig Onderzoek Versus Marginale Toetsing : Standaarden voor Rechterlijk Onderzoek in Internationaal en Europees Asielrecht’, Asiel & migrantenrecht (2013) n3, p. 129. 

[10] Article 9 (2) APD: “Member States shall also ensure that, where an application is rejected, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing” (emphasis added).

[11] F.H. v. Sweden, no. 32621/06 (Judgment), European Court of Human Rights (ECtHR), 20 January 2009, para. 95.

[12] J.K. and Others v. Sweden, § 96.

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