A STRUCTURED APPROACH TO THE DECISION-MAKING PROCESS IN
REFUGEE AND OTHER INTERNATIONAL PROTECTION CLAIMS
Copyright 2016 by IARLJ, Haarlem, The Netherlands (www.iarlj.org)

A Flowchart using Established Judicial Criteria and Guidance
OVERVIEW: The core issues are:
What the past and present facts are as found by the judge (i.e. “the accepted facts”)?
Using these facts what is the nature of the predicament for the claimant on return and what is the degree of risk of it?
On the totality of the evidence do you recognise refugee or complementary protection status?

Step 1PRELIMINARYENQUIRIESAt the outset, the Judge may consider if the claim is so manifestly well-founded or manifestly
unfounded (including clearly abusive claims), that a prompt decision can be reached (possiblywithout an interview) by accepting the credibility of the claim as it is presented. If the claim is:a. Unfounded - do the facts establish, that the claimant simply does not meet the legal test andthus cannot be recognised for protection? If so, the appeal may be disposed of at this point.
Examples: On all the facts, is the claimed risk merely remote and speculative? Is the presumptionof state protection clearly not rebutted?
b. Well-founded – do the facts which can be said to be incontrovertible (and so do not need to betested by oral evidence), establish that the person meets the legal test. Example: Noting thehuman rights violations in the claimant’s country of origin, status may be recognised because of aparticular nationality age, race or gender.

STEP 2THE
CREDIBILITY
BOXIssue 1 - Objectively assessed, what parts of the account are accepted as “credible”?
This assessment will require the judge to assess, with sound reasoning, which (material) parts ofthe claim, as presented, are accepted as credible, or rejected as not credible.
Guidance:a. Follow the “International Judicial Guidance of the Assessment of Credibility” (see www.iarlj.org);b. Consider documentary evidence (e.g. medical, psychiatric, travel documents) that either
supports or tends to disprove the claimant’s story;c. Consider COI (noting guidelines on COI use, eg by IARLJ or UNHCR) to test the evidence;d. Consider any expert evidence , including an assessment of the weight to be attached to it;e. If needed apply the “benefit of doubt” principle, by which lingering uncertainty about thecredibility of a claimant’s evidence, or part of it, is resolved; and then, ‘in the round’…

f. Determine & record the material “facts as found” of the claimant’s (and other) evidence.
STEP 3
THE HARM
BOXIssue 2 - On the facts as found, does the claimant face serious harm arising from a sustained orsystemic breach of internationally recognised human rights, demonstrative of a failure of stateprotection?
This requires consideration of the ‘accepted facts/ profile’ of the claimant, the relevant COI andestablished refugee law, in order to decide if the harm is serious and, if so, if it arises from asustained or systemic breach of internationally recognised human rights.
Initially, in this assessment, the nature of available “home” state protection to the claimant can berelevant to the question whether there is serious harm. This recognises the most basic principlethat refugee law is based on signatory countries to the RC and other IP Conventions agreeing toprovide “surrogate protection” to those at risk of serious harm in their own country.
Guidance:a. Consider relevant COI and other accepted evidence such as expert witnesses and relevant caselaw, together with other relevant assistance (like Country Guidance cases from the UK).
b. As to the nature of the harm, does it arise from a breach of an internationally recognised humanright?
c. How serious is the harm, taking into account any accepted characteristics of the claimant?

STEP 4THE RISKBOXIssue 3 – Is the risk of harm on return “well-founded”? Noting the findings made on Issues 1 and 2,
prospectively assessed, what is the degree of risk of persecution/serious harm to the claimant on
return? The international test for this assessment is whether there is a “real risk/chance” (of being
persecuted etc), as against a remote or speculative risk/chance. It is not “on the balance of probabilities”,
and definitely not a criminal standard of proof. This is well-accepted international law, with similarterminology applying the same “real” level of risk. (Thus: “real chance” (Australia and NZ), “reasonablelikelihood” (UK), “reasonable possibility” (USA), “serious possibility” (Canada), “considerable probability”(Germany), and “real risk” (Ireland and widely in Europe and by the ECtHR).
Note: In CAT and other complementary protection assessments this level is, internationally, expressed as“a real risk” or being “in danger of”. There is no practical difference between the levels of risk required
under either status. The “reality of the risk” approach appropriately recognises the unique nature ofRefugee law and all other forms of protection in their humanitarian context.
Guidance:a. Conclusions must be based on the totality of the findings of fact and all the other evidence. The
combination of the “accepted facts” from the claimant’s account, together with all the other evidence
including COI and other witnesses and documentary evidence, constitutes the “facts as found” uponwhich the risk assessment is made.
b. Ensure that expert evidence is assessed for probative weight.
c. Ensure that the COI is weighed in accordance with accepted COI guidelines (eg of IARLJ/UNHCR).
d. The claimant’s subjective fear will almost always be part of their account but the test for the judge is anobjective test only. The claimant’s subjective fear is not determinative, and is only relevant when
consistent with the objective evidence. In this way, the accepted subjective fear can, along with theaccepted objective evidence, become part of the totality of the “facts as found”.

STEP 5
THEREASONS
BOXIssue 4: If the answer to both Issues 2 and 3 are “yes” then decide:
1. Is the risk of being persecuted for reasons of one, or more, of the five Convention grounds? (i.e.
race, religion, nationality, membership of a particular social group or political opinion); or
2. If not, can the claimant still qualify for some other form of complementary protection?
Guidance:
a. Use all relevant international and domestic protection-related legislation, UNHCR and otherinternational guidance that relates to the issues of nexus and Convention reasons;b. Consider relevant case law at the domestic and international level, and relevant academic guidance andcommentary, all duly weighted and assessed.

STEP 6THEDECISIONBOXSTEP 7EXCLUSION
andCESSATIONBOX

The conclusion should record clearly, after sound, fair reasoning, that the claimant falls within or outside
the inclusion provisions of Article 1A(2) of the Refugee Convention or, alternatively, qualifies, or does not
qualify, for some form of complementary protection status.
NB: Note however that the domestic law of some states may allow the judge only to quash an earlier
primary decision and require the claim to be re-assessed, in whole or in part.

Issues 5 & 6: Determine any Exclusion or Cessation issues.
Even if the claimant falls within the Inclusion clause (Art 1A(2)) there may be “serious reasons forconsidering” possible exclusion of the claimant (as in Article 1E or 1F). Exclusion, particularly under Article
1F, is complex and requires reference to international case law, UNHCR’s Handbook and Guidelines, as wellas to IARLJ and academic commentaries.
The judge may also need to determine whether any cessation issues arise (as in Article 1C). This, too, iscomplex and similar resources must be consulted.
Caution must be exercised in applying the exclusion and cessation clauses.

STEP 8WRITINGTHEDECISION

Good, sound decision-writing requires a succinct “issues-based” approach, addressing the core issues, withthe totality of the relevant evidence and jurisprudence being taken into account. It must also recogniseboth that “justice must be seen to be done” and that, often, there will be “precedent” or “guidance” value
within the decision. For this reason, a separate depersonalised (and, if necessary, redacted) version of thejudgment should be made public.
NB. All first-instance decisions should ideally contain a detailed record of the evidence presented andfulsome reasoning should be recorded. First-instance decisions should not be made public.