INTERNATIONAL ASSOCIATION OF REFUGEE LAW JUDGES

A Structured Approach to the Decision Making Process in Refugee
and other International Protection Claims
Including:- A Flowchart using Established Judicial Criteria andGuidance- The IARLJ International Judicial Guidance for theAssessment of Credibility- The IARLJ Judicial Checklist for COI

Presented at the IARLJ/JRTI/UNHCR conference:“The Role of the Judiciary in Asylum and Other
International Protection Law in Asia”
Seoul, Korea – 10-11 June 2016
Prepared by Allan Mackey, Martin Treadwell, Bridget Dingle and Bruce Burson for theInternational Association of Refugee Law Judges (IARLJ), 2015/16
Copyright 2016 by IARLJ, Haarlem, The Netherlands (www.iarlj.org)

2This paper and sections of it may be distributed and reproduced without formal permission for the
purposes of judicial research and usage, non-commercial research, private study and news reporting
provided that the material is appropriately attributed to the authors and the copyright holder.
The views expressed in this publication are primarily those of the authors. They were prepared after
extensive consultation with the judges and others who participated in the development of this paper. They
are not necessarily the views of the IARLJ or any member.
THE AUTHORS Allan Mackey is Project Director of the IARLJ, a former IARLJ President, Senior Immigration Judge(UK), Chair of the Refugee Status Appeal Authority (NZ) and Deputy Chair, Immigration andProtection Tribunal (NZ).
 Martin Treadwell is the Deputy Chair of the Immigration and Protection Tribunal (NZ), a council
member of the IARLJ and Deputy Chair of the Australasian Chapter of the IARLJ.
 Bridget Dingle is a senior member and manager, humanitarian division of the Immigration andProtection Tribunal (NZ) and Executive Committee member, Australasian Chapter, IARLJ.
 Bruce Burson is a senior member and manager, refugee and protection division of the Immigration
and Protection Tribunal (NZ).
The significant contribution by John Barnes, a retired senior Immigration Judge (UK), who co-authoredmuch of the material used to prepare the European version of this paper, is gratefully acknowledged.

CONTENTSPart I – INTRODUCTION

3Part II - A FLOWCHART USING INTERNATIONAL JUDICIAL CRITERIA AND
GUIDANCE

7Part III - INTERNATIONAL JUDICIAL GUIDANCE FOR THE ASSESSMENT
OF CREDIBILITY

10

 Basic Criteria and Standards of Good Practice10

 Basic criteria applicable for credibility assessment of claimants

12 International Judicial Guidance on Best Practice in Credibility
Assessments

14(A) Treatment of Substantive Evidence

15(B) Procedural Standards

25(C) Treatment of Vulnerable Claimants

27(D) Residual doubts and the “benefit of the doubt” principle

30

Part IV - THE COI JUDICIAL CHECKLIST Explanatory Memorandum

33
34

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A STRUCTURED APPROACH TO THE DECISION-MAKING PROCESS IN
REFUGEE AND OTHER INTERNATIONAL PROTECTION CLAIMS
Noting the “protection obligations” which states have entered into, pursuant to internationallaw, and recognising the gravity of the predicament that may face claimants who are in needof international surrogate protection from serious harm, judges (and other decision makers)
must approach all claims with an outlook that gives claimants full individual personal respect
and recognises the seriousness of the task being undertaken. In the simplest of terms thetask is to make a soundly reasoned, objective assessment of all the material evidence fromwhich, noting the accepted characteristics of the claimant and relevant COI, the question
whether there is a real risk of the claimant being persecuted or suffering other qualifying
serious harm on return must be determined.

Part IINTRODUCTION
1.
This paper, whilst directed to judges considering refugee and other protection cases,
also aims to be instructive and relevant to all decision-makers, counsel and claimants in thisunique field of law.
2.
It provides guidance to judges hearing appeals from first-instance decisions made inclaims for refugee and/or protection status at international law. The guidance is for judges
determining both “full merits reviews", and error of law appeals or judicial review only. The
paper can also provide assistance to government first-instance decision-makers, claimants,
counsel, the UNHCR, academics and NGOs working with refugee/protection claimants.
3.
The need for a structured, or step by step, approach to the decision making process(often referred to as refugee status determination, or ‘RSD’) first arose in the extensive
preparation of the IARLJ’s Credo paper Assessment of Credibility in Refugee and Subsidiary
Protection Claims Under the EU Qualification Directive - Judicial Criteria and Standards(2013) as part of the EU sponsored “Credo Project”. Much useful feedback on the IARLJ
Credo paper has come from IARLJ members, engaged in the many teaching/professional
development projects since undertaken, and from other judges and UNHCR trainers, bothwithin the EU and internationally. In particular, the practical usefulness of the Summary
Chart and explanation, set out in the Credo paper, is noted with high approval. The IARLJ
was thus urged to prepare and publish an updated ’international’ version of the “Structured
Approach Chart” and to make it available through the many professional development
workshops and training programmes which IARLJ members are asked to facilitate.
4.
This paper and chart was thus developed. We are much indebted to the many judges,
UNHCR staff and first-instance decision-makers who have contributed so many helpful
suggestions and improvements.

4

5.
The suggested structure is a guidance tool only, mainly designed for judges andothers who are new to, or infrequently involved in, this unique jurisdiction. Whenapplied together with sound international human rights law, principles and procedures, itwill provide a sound, principled approach to both appeals on “full merits” (ex nunc, de novo)
and error of law only appeals or judicial reviews. It is will be also of considerable assistanceto primary decision makers. Experienced judges and decision makers may of course, on acase by case basis, make valid decisions using other approaches, provided their assessments
are made and reasoned on the totality of the accepted evidence and the application of theessential principles of international refugee and protection law. This important proviso or
warning was eloquently given by Sir Stephen Sedley in Karanakaran v Secretary of State for
the Home Department [2000] (UKCA):“While, for reasons considered earlier, it may well be necessary to approach the Convention
questions themselves in discrete order, how they are approached and evaluated should
henceforward be regarded not as an assault course on which hurdles of varying heights areencountered by the asylum seeker with the decision-maker acting as umpire, nor as a forum
in which the improbable is magically endowed with the status of certainty, but as a unitary
process of evaluation of evidential material of many kinds and qualities against theConvention’s criteria of eligibility for asylum.” 1

6.
The following flow chart sets out all of the steps and issues involved, with brief
explanations of tasks to be completed at each stage. This full assessment should takeplace in the deliberations of the judge to ensure sound outcomes to each appeal. However,this certainly does not mean that every piece of evidence and reasoning and the assessmentof every step in the chart should be recorded in the final written, published judgement.2 As
is well understood by experienced judges, sound, succinct communication by a judge to thevarious audiences involved, of their decisions or judgements should record the core issues
and reasoning on a case specific basis. A good organised judgement will state the issues andthen address them, using the relevant evidence, law and reasoning, to determine theoutcome of each individual appeal. Such judgements in refugee and protection cases, mustof course also show that a full consideration of the totality of the evidence has taken place
and the correct ‘core issues’ have been addressed and determined by the judge.
7.
It is strongly recommended, however, that first instance decision makers, recognising
they are the primary fact finders, follow through every step in the flowchart. They should
ideally then go on to record their reasoning and findings on the material evidence more fully
and transparently than is usually necessary at the appeal stage.
The unique character of decision-making in refugee and other international protection
claims8.
Refugee and complementary protection law is markedly different from almost allother areas of the domestic law so familiar to lawyers and judges in their respective

1

In approaching the analysis in this manner, it remains necessary to bear firmly in mind the eloquent and salient warning of Sedley LJ in
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (UKCA) at 479-480.

2

See for example : The Method: Organising A Judgement In Five Easy Steps at p26 of “ Writing For The Court” James C. Raymond –Carswell (2010)

5

jurisdictions.3 Because so much of this extensive and specialised field of law has only
developed in the last 25 years, many lawyers and judges will have had little or no formal
training in it and thus will understandably seek first to rely on traditional principles ofdomestic administrative law. It is important therefore to set out the differences and explain
the specific character of refugee and protection law. Unless these, and the combined effects
of several of them, are understood the risk of flawed decision-making is highly elevated.
9.

Eleven differential factors:

There are three self-evident factors that apply to all cases and then eight other importantcharacteristics that need explanation:a) One party is a non-national individual claimant while the other is a state;b) The factual substance of every claim will be difficult to check and thus reference
to country information about the country of origin will be needed;c)

The focus of the case is significantly on the future, not the past.

Those needing explanation are:d) The core treaties, such as the Refugee Convention, the ICCPR, and the ICESCR
are living instruments;e) Refugee and protection decision-making is international rights-based, notdomestic privilege (ie, immigration) -based;f)

The surrogate nature of protection obligations arises from international treaty
obligations;g) Refugee and complementary protection status are declaratory, not constitutive;h) Judicial independence and impartiality can be put under pressure from antirefugee/migrant or societal pressures;i)Many claimants will have vulnerabilities inherent in their situation, thus thepsychological and trauma affecting them must be considered;j)Claimants will often have difficulties in presenting corroborative evidence andcareful attention will be needed, both as to the use and abuse of “supporting”
documentation, including web-sourced material; andk) Cross-cultural awareness and challenges and working through interpreters are
the norm.
10.
It is instructive to show how the “structured approach” works in practice, byconsidering as examples two New Zealand cases, noting particularly the helpful headings as
signposts in the decisions (shown in bold below) and noting the paragraphs in the decisions
3

A paper: “Asylum: Can the Judiciary Maintain its Independence?” by Sir Stephen Sedley, Former Lord Justice of Appeal, England andWales; which was delivered at the IARLJ Conference 2002, Wellington, New Zealand (see the IARLJ website) illustrated the differences
well, where he stated: “Yet this is still not the high point of the problem. I have not reached the critical function of first-instance asylum
judges in the majority of the world’s developed jurisdictions: the function of fact-finding.… I have described this function elsewhere as‘not a conventional lawyer’s exercise of applying a legal litmus test to ascertained facts; it is a global appraisal of an individual’s pastand prospective situation in a particular cultural, social, political and legal milieu, judged by a test which, though it has legal andlinguistic limits, has a broad humanitarian purpose’.” The latter part of this quote is from a UK High Court first instance decision of Sir
Stephen that was later approved on appeal in Shah and Islam v Secretary of State for the Home Department [1999] 2 AC 629.

6

bracketed thus [ ] and how these sections of the decision mesh into the various boxes/steps
set out in the Flow Chart above.
First, in a relatively simple case such as:
Refugee Appeal No 76199 (11 November 2008)
Introduction [1]-[2]The Appellant’s case [3]-[21]The Issues [22]-[23]Assessment of the Appellant’s Case
- Credibility assessment [24]-[44] - “the credibility box”
- COI [46]-[58] – “the “harm box”
- Risk assessment- Real chance applied [60]-[71]- “the risk box”
- Convention reason [73]-[74] – “the reasons box”
Conclusion [75]-[76] – “the decision box”
And then, even in a complex precedent/guidance case:DS (Iran) [2016] NZIPT 800788
Index
Introduction and scope [1]-[21]The Appellant’s case [22]-[42] – “the credibility box”
Credibility [43]-[48] – “the credibility box”
Findings of Fact [49]-[105] – “the credibility box”
Legal issues arising
Being Persecuted – “the harm box”
Assessment of Serious harm – “the harm box”
Reformulation of Human Rights approach to being persecuted [203]-[213]– “the harm and risk boxes”
Assessment of Claim [275-329] – “the risk, reasons and decision boxes”
NOTE: Full copies of both of these decisions are available at:https://forms.justice.govt.nz/search/IPT/RefugeeProtection

7Part IIA FLOWCHART USING INTERNATIONAL JUDICIAL CRITERIA AND
GUIDANCE

PROVIDING A STRUCTURED APPROACH TO THE DECISION-MAKING PROCESSIN REFUGEE AND OTHER INTERNATIONAL PROTECTION CLAIMS8A 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 (possibly
without 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 and thus
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 presumption of 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 the humanrights violations in the claimant’s country of origin, status may be recognised because of a particularnationality age, race or gender.

STEP 2THE
CREDIBILITY
BOX

Issue 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 of theclaim, 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
BOX

Issue 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 state
protection?
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?

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STEP 4
THE RISK
BOX

Issue 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 nota criminal standard of proof. This is well-accepted international law, with similar terminology applying thesame “real” level of risk. (Thus: “real chance” (Australia and NZ), “reasonable likelihood” (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 “areal risk” or being “in danger of”. There is no practical difference between the levels of risk required undereither status. The “reality of the risk” approach appropriately recognises the unique nature of Refugee 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 5THE
REASONS
BOX

Issue 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 6
THE
DECISIONBOXSTEP 7EXCLUSION
andCESSATIONBOX

The conclusion should record clearly, after sound, fair reasoning, that the claimant falls within or outside theinclusion 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 primarydecision 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 for considering”
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 well as to IARLJ andacademic 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 8WRITINGTHE
DECISION

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 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.

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PART III
INTERNATIONAL JUDICIAL GUIDANCE FOR THE ASSESSMENT OFCREDIBILITY

Basic Criteria and Standards of Good PracticeIntroduction
This Guidance has been developed by the IARLJ internationally over the period 2013-2016,
following the initial work of the Credo project in Europe in 2011/13. The Guidance consists ofa statement of the basic criteria necessary for a sound credibility assessment of the evidence
from claimants and a set of judicial standards for good practice in such assessment. 4 They
have been agreed, after an extensive consultative process involving experienced IARLJ
members and judges from across almost all states where the IARLJ has members. There has
also been much assistance from many UNHCR representatives, NGOs, academics andexperts in this field.
The aim of the IARLJ, and all others involved in this project, is to promote and attain bestpractice, not only in the core task of assessing credibility, but also in achieving greater overall
international consistency (and thus “burden sharing”), in refugee and protection decision
making. This is consistent with the objectives of the IARLJ, to promote the rule of law inrefugee and protection determination.5 The Guidance and content of this paper may be usedin judicial training projects. Interested judges or courts should contact the IARLJ secretariat(info@iarlj.org) if they wish to arrange a training or professional development workshop on
this significant area of status determination.
The criteria are prepared with the underlying recognition that:a. It is the duty of claimants to present their own claims for recognition of refugee and/or
protection status and each application is to be assessed on an individual basis.
b. The determination of eligibility for protection is an onerous and specialist task.6 Whilethe initial source of judicial reference will be the national law of the receiving State
adopting the Refugee Convention or other protection instruments, it must always beborne in mind that this will be informed by the Refugee Convention and otherinternational human rights conventions, together with judicial interpretation by courts.
4

We have referred in this Guidance to the role and duty of the judge but most of what is contained in this Part is equally applicable todecision-makers at all levels.

5“The International Association of Refugee Law Judges seeks to foster recognition that protection from persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion is an individual right established under internationallaw, and that the determination of refugee status and its cessation should be subject to the rule of law.”6

See Part I.1 above.

11c. Because the issues involved (for both claimants and states) are so serious in nature andinvolve fundamental principles of justice, high standards of fairness are applicable in thedetermination process. This fundamental premise is inherent in the humanitarian natureof international protection and underpins this Guidance.
d. The assessment of the credibility of the claim presented by a claimant is a tool used
to establish the “accepted facts/characteristics”, or a full “profile” of the claimant and,from that, to determine their international protection needs. The accepted facts are avital part of the evidence then used in determining the risk7 of the claimant being
persecuted or suffering serious harm, on return. Thus, as shown in Part II (“The Structured
Approach” flow chart, above), it is necessary to decide Issue 1 (credibility) before moving
on to Issue 2, Issue 3 etc, ( harm and prospective risk etc).
e. This Guidance is based on well-recognised international administrative law norms andprinciples, including the right to a fair hearing, equality of arms (audi alteram partem),legal certainty, and the right to an effective remedy.8
f. The principles contained in this Guidance are derived from international and regional
legislative instruments, the jurisprudence of relevant courts and the experience of thejudges who have participated in this paper and related projects. In addition, we have hadmuch regard to guidance from many UNHCR officials, the Handbook 2011) and
Guidelines and several leading academic publications.
g. In international law terms, there are some widely accepted criteria (as set out below),
applied in all sound judicial reasoning, to evaluate the “lawfulness” of a credibility
assessment. These criteria, and the detailed standards of good practice that expand
on them, have been developed in refugee and protection law and practice over the
past 65 years. The principles reflected in many regional protection instruments are also
drawn largely from accepted international practices. A significant failure to apply thesecriteria and/or meet the standards, should, on appeal or judicial review, lead to a rulingthat an error of law in the decision making has rendered the decision unsustainable.
h. This Guidance is non-exhaustive. It includes, standards of good practice based on
fundamental fairness, including procedural requirements and recognition of thespecialised needs of vulnerable sub-groups of claimants. For ease of use, the standards ofgood practice are grouped into four sections: substantive fundamental fairness issues,
procedural issues, assessing the claims of vulnerable persons with special needs and how
benefit of the doubt issues should be dealt with.

7
8“Well-founded fear” in Article 1A(2) of the Refugee Convention, which, as discussed below, is now firmly established in international
refugee law as equating to a real risk or real chance and other like terms.
For further elaboration, see Parts IV to VI of the EU paper on the IARLJ website.

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Basic criteria applicable for credibility
Assessment of claimants
The decision-maker must undertake an assessment of the credibility of the evidence. This
assessment must be made by the decision-maker impartially and so as to minimise their own
inherent subjectivity as far as possible. To ensure objectivity and concentration on the coreelements in a credibility assessment, the following criteria are best practice. Following theguidance of these criteria will ensure that decision-makers make high quality decisions.
a. Impossibility, or near impossibility: It can be possible to find that, when set against
objective evidence, an aspect of a claim is impossible of belief. For example: relevant
dates, locations, and timings, mathematical, scientific or biological/DNA facts.
b. External consistency: These are findings on inconsistencies or discrepancies between
the statements of the claimant and external objective evidence, including duly weighted
COI and any other relevant evidence.
c.

Internal consistency: These are findings on inconsistencies or discrepancies within thestatements and other evidence presented by the claimant from earlier interviews,
applications, and examination at all stages of the processing of their application/appeal.

d. Plausibility: Findings on the plausibility of claims can include the plausibility of
explanations by the claimant for other credibility concerns, and they can add to or
subtract from acceptance of those facts as being able to be believed. Within thiscriterion several types of concern can arise, such as: a lack of satisfactory or logical detail,an account which flies in the face of common sense and an explanation attempting toaddress another credibility concern which is simply not sensible . Plausibility may, tosome extent, overlap with external consistency findings.9
e.

Sufficiency of detail: With some exceptions in cases of a claimant’s mental or physicalincapacity, culture, 0r educational background, a claim should be substantively
presented and sufficiently detailed, at least in respect of the most material facts of theclaim, to show it is not fabricated. Bearing in mind the limitations on most claimants inaccessing evidence from the home country, this does not mean that claimants must
present extensive documentary evidence if their claim is to be believed. Their written
statements and oral evidence will in most cases be the core of their personal evidence.

f.

“In the round”: Overall credibility conclusions should not be made only on the rejectionof non-material, partially relevant or tangential aspects of the claim only. The
substantive findings in the assessment of credibility should be made “in the round”,
based on the totality of the evidence and taking into account that findings on a, b, and c(above) criteria will logically have more weight than those solely relying on plausibility/implausibility.10

9

See M Kagan, "Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determinations" (2003) 17(3)Georgetown Immigration Law Journal 367-415, especially the section on plausibility at pp390-391 where he argues that plausibility “addsvery little” to external consistency.

10 See, for example, Cruz Varas & ors v Sweden [1991] 14 EHRR 1; Vilvarajah v UK [1991] 14 EHRR 248; A v SSHD [2006]
EWCA Civ 973; Article 80 Polish Code of Administrative Procedure (CAP); Sections 108(1) and (2) German Code of
Administrative Court Procedure.

13

g. Timeliness of the claim: Undue delay or the late making of a claim for recognition, andlate presentation of evidence may negatively affect general credibility, unlessreasonable explanations are provided.11 While some jurisdictions require that delay inmaking a claim be taken into account, it is important to have regard to human natureand the inevitability that people with genuine fears can put off the difficult task ofmaking a claim for a wide range of reasons, none of which go to credibility.
h. Personal involvement: It is important for judges to ensure that the claimant has been
personally involved in the “story” and has not merely adopted the story of another(successful) claimant.

International Judicial Guidance on Best Practicein Credibility Assessments
Many of the following standards of best practice are to be found in the Codes of
Administrative Procedure and the jurisprudence of many States. This paper attempts tobring, as far as possible, such standards together in one document as a useful reference point
11 26 See ECtHR in B v Sweden (28 October 2004) European Court of Human Rights Appl No 16578/03; Khan v Canada (15October 1994) Convention Against Torture Committee CATC No 015/1994; Kaoki v Sweden (8 May 1996) No 041/1996.

14

and training tool. These standards have been developed by judges internationally, on a wide
range of issues that arise in credibility assessments. The list that follows is not exhaustive andat times may appear overlapping, and experienced judges may indeed consider many ofthem to be obvious. However the list aims to be as extensive as possible, especially to assist
and guide judges and decision-makers unfamiliar with this area of law, to carry out thechallenging task of credibility assessment.
In refugee and protection claims, in contrast to civil inter partes litigation, there will only
rarely be external evidence directly corroborating the claim, except possibly by reference to
COI evidence. Such evidence in a civil inter partes may either support or undermine theclaimant’s account of personal experiences. However, the judge in a refugee and protection
case does not have the opportunity to assess and contrast the accounts and evidence of
opposing parties as to past events, which is often determinative of the credibility assessmentin the more familiar pattern of civil litigation.
Further, while appropriate deference will normally be accorded to the skill and experience offirst instance decision-makers, or full merits reviewers, a material failure to adhere to one ormore of these standards can lead to an error of law conclusion on judicial review.
The best practice criteria arise in four distinct categories:a) Treatment of Substantive Evidenceb) Procedural Standardsc) Treatment of Vulnerable Claimantsd) Residual doubts and the “benefit of the doubt” principle
Detailed consideration of each of these categories follows.

(A) TREATMENT OF SUBSTANTIVE EVIDENCE

A.1: Consistency
Claims should be presented by claimants in an internally and externally consistentmanner.

15

Explanation: The effect on credibility of a material inconsistency or discrepancy in theevidence, must be clearly explained to them and they must be given the chance to respond.
The response and explanation given by a claimant must be taken into account. Realconsideration must be given to whether the explanation does, in fact, resolve the concern.
Decision-makers must discipline themselves not to take a position about a seeminginconsistency or discrepancy until the explanation has been genuinely considered, and must
be prepared to abandon a preliminary view about it, without prejudice to the claimant.
Examples: Claimant A states he was a long-term member of the ABC political party on arrival
but, in later statements, claims to have been a member of the opposition DEF party. Whenchallenged, the explanation is that he forgot the name of the party. A decision-maker would
be entitled to find that the inconsistency remained a matter of concern because theexplanation was implausible.

A.2: Audi Alteram Partem or Equality of Arms
The “other side” must be heard. Potentially negative material evidence must be put tothe claimant for comment. If not, it should not be taken into account in assessment ofcredibility.
Explanation: All claimants must be provided a reasonable opportunity to refute, explain orprovide mitigating circumstances in respect of negative or adverse evidence that is materialand could potentially undermine their claim.
Example: Following the interview but before the final decision, COI is received which raises
issues as to the credibility of the claimant. The proper course is to provide that COI to theclaimant and to invite comment (including, if necessary, resuming the interview or hearing).

A.3: Coherence
Coherently presented evidence by claimants is prima facie more likely to be accepted as
credible.
Explanation: Subject to the personal circumstances and background of the claimant (which
could include suffering trauma from past mistreatment), their evidence of what has
happened to them in the past, and what they expect in the future, should be expected to becoherently presented. An incoherent story may reflect a lack of credibility or a poorly“learned” account. Similarly, as with plausibility, coherence of evidence must be assessedagainst the background of the claimant in national, ethnic and personal terms and claimants
must be given the opportunity to explain apparent incoherence in their evidence.
Authorities: Article 4(5)c EUQD and also see “Plausibility” above as these two standards areoften considered together.

16

A.4: Plausibility
The plausibility of the claim will be reflected in the assessment of credibility of theclaimant’s history.
Explanation: Plausibility may potentially reflect the subjective view of the judge abouthuman behaviour or perceptions about the country of origin, which is very often a place heor she has never lived in or experienced in any manner beyond the superficial. Awareness of
the risk of importing the judge’s own personal views of “truth” and “likelihood” will help toensure objectivity is maximised. The rejection of evidence for implausibility must be fully
reasoned, including the addressing of any explanation provided by the claimant. Decisions
based solely on implausibility are likely to be less persuasive than those based on a wider
range of basic criteria.
Example: The claimant says that her father will kill her because, although he knows that she
did not, the neighbours have accused her of talking to a boy. The decision-maker considers
that no-one would harm their child for such a trivial reason and it therefore seems
implausible. However, the decision-maker is aware of the need to avoid assumptions basedon personal experience and consults country information which confirms that some sectorsof Islamic society in that country can expect a father to kill his own daughter, whether she isactually guilty or not, in order to restore the family’s ‘honour’ in the community. What
seemed implausible has become very plausible.

A.5: Reasons
Judges must provide substantive, objective and logical reasons, founded on theevidence, for rejecting an aspect of an account presented by a claimant.
Examples: It is self-evident that a decision that fails to record the reasons for rejecting, or
accepting a claimant’s evidence will be potentially flawed.

A.6: Materiality
Judges must reach credibility conclusions on facts material to the claimant’s case that go
to the core of the fundamental issues.
Explanation: This relates to core evidence that the claimant presents as the basis of theirwell-founded fear of being persecuted (i.e. the findings on Issues 1, 2 and 3 of the Chart,
above). While it may appear self–evident, in order to reach conclusions on core facts(particularly in inquisitorial hearings), judges should focus on the material facts of the claim.
Some core issues, like those of identity and nationality, will be essential in every case.
Credibility concerns about peripheral or minor issues only should not be a substantive basis
for the rejection of a claim, no matter how well-reasoned.

17

A.7: Speculation
Judges must not engage in subjective speculation in their reasons for rejecting thecredibility of claimants’ evidence as to do so would be to rely on unfounded assumptions.
Explanation: Decision-makers must rely on objective evidence in rejecting credibility. It is
not sufficient to rely on subjective beliefs or speculation.
Examples: Without obtaining detailed COI, the judge finds that a claim of past domestic
violence is not credible on the basis of personal views about the effectiveness of state
protection for women in that country.

A.8: Objective approach
All credibility assessments in refugee and protection claims must be undertaken with abalanced and objective approach.
Explanation: This goes to the issue of mind-set or outlook of the judge. Decisions andreasoning should not reflect a culture of either disbelief or of naïve acceptance. Simplistic
rejection, ill-considered and also naïve acceptance of evidence by judges or decision-makers,
without appropriate questioning and reference to objective evidence and COI, will lead to aflawed assessment of credibility. A balanced approach will also include taking into accountthe accepted background of the claimant, such as his/her education, social, gender, age andmedical status.
Example: A culture of disbelief may include widespread cynicism about the presence of‘economic migrants’ in the decision-maker’s country, while the reality is that at least someof the migrants will be in genuine need of protection (even in addition to having economic
motives). Naïve acceptance, on the other hand, might include weak findings of credibility
because the person sounded genuine, or presented well, or cried in the interview.

A.9: Excessive or unreasonable concentration on details
Excessive or unreasonable concentration on details may lead to flawed findings of fact
on material issues. Claimants cannot always be expected to have detailed knowledge,
to recall exact dates, events, names, officers or organisations in their evidence.
Explanation: While in most situations claimants should be able to provide coherent detailsof their background, especially those events that are material to their claim, there aresituations where this may not be the case.
Examples: People not expecting to have to remember detail later may well not be able toconvey more than a broad impression of what occurred, with little specific detail. Further,people being interrogated may have been in a state of fear that precluded observation of

18

detail. On other occasions, age, infirmity, stress or confusion may make the recall of detaildifficult.

A.10: Relevant corroborative documentation (hard copy or web-sourced)
The credibility of documents (not including COI, discussed below at A.14) should be
accepted or rejected on the same basis as oral or written evidence from the claimant.
Explanation: The decision-maker must consider whether a document is one upon which
reliance should be properly placed only after considering the totality of the evidence. No
document should be considered in isolation from the credibility of the rest of the claim. It isnot, however, appropriate or sustainable for a decision-maker to attach no weight to arelevant document presented in support of a claim, without giving clear reasons for such afinding. Supporting documents should not be dismissed merely because such documents
may be easy to falsify, or that the originals could not be provided by the claimant.

A.11: Delayed claims
A delay in the presentation of a claim should not be treated as a presumption that theclaim lacks credibility.
Explanation: Claimants should be expected to give good reasons for delay and failure to do
this may contribute to a lack of credibility. However, there should be recognition thatavoidance of disclosure may have arisen through shame, possibly associated with sexual
violence, cultural/wider family and indirect personal “costs” of disclosure. Further, a person
holding a visa or even just living illegally in the country of refuge, may have wanted to put off
the difficult and stressful process of seeking protection.
Examples: A woman can be ashamed or embarrassed to discuss being raped and may delay
providing such evidence until being utterly assured of confidentiality. Even claimants wholack such trauma in their past can simply be afraid of applying in case the claim fails and they
are returned to a country where they will be harmed. Countries known to have very low rates
of successful claims should be cautious before finding that delay in making a claim impacts
on its credibility.

A.12: Past persecution
Because of the potential relevance to the future risk of harm, decision-makers must
make specific findings on evidence of past persecution or serious maltreatment.
Explanation: It is important to make such findings (see Step 2 of the Chart above). If
accepted, past mistreatment is highly relevant to a claimant’s acceptedcharacteristics/profile and to the assessment of the risk of being persecuted or suffering
serious harm on return. But see A13 below on absence of past persecution.

19

Example: Unless there has been a clear and demonstrable improvement in human rights inthe person’s country (say, as a result of regime change), a person seriously mistreated when
detained by the police in the past, may well face a real risk of further mistreatment in the
future, if he/she falls into their hands again.

A.13: Absence of past persecution
Judges should not reject the credibility of the claim to be at risk in the future, simply
because the person was not harmed in the past. Also of course in sur place claims thismay, logically not be available or relevant.
Explanation: As under A.12 above.
Examples: The very reason the person is able to make a claim may be because they wereable to avoid harm by leaving the country. Further, some claimants may have avoided
serious harm in the past by modifying their behaviour.

A.14: Use of COI
Judges must refer to reliable COI as a vital part of testing the internal and externalconsistency of a claim (indeed judges should see the obtaining and use of COI as part of
the “shared burden” approach to credibility assessment).
Explanation: Reference to COI guidelines, such as those prepared by the UNHCR and the
IARLJ (see the IARLJ website for guidance on COI) will assist correct use. The absence of COI
to support a material fact does not necessarily mean an incident did not occur, or a factcannot be accepted. This is particularly so with cases involving children, gender and LGBTI
claims. Extra vigilance in the assessment of these cases is needed by judges (see further
guidance under C.1 Vulnerable claimants below). However, judges should also be alert tosituations where a less than honest claimant may tailor the claim to be consistent with
relevant COI. It should also be noted that EASO has now commenced issuing COI preparedin accordance with a model methodology to which reference may also be usefully made.12
There are some States in which decision-makers are obliged to make sure that they use thenewest available country report of their countries’ “Foreign Office”. If they do not, it isregarded as a procedural flaw which normally leads to a reversal of the decision. Suchmaterial should be weighted and balanced (using guidance as noted above) in the same way
as all other COI. It should not be determinative of the claim.

A.15: Expert evidence

31

For example, COI prepared in respect of Afghanistan, July 2012.

20

Decision-makers must take note of “expert” evidence and attach appropriate andbalanced weight to such evidence.
Explanation: The term “expert” encompasses a wide range of persons with specificknowledge. Sometimes there may be an issue as to whether a person is in fact “expert” inthe legally accepted sense of the word. Where, however, expertise is accepted, the witness
is entitled to give “opinion evidence”.
“Expert evidence” would include that based on medical, psychiatric and psychologicalqualifications, as well as COI. All such evidence can be relevant to credibility. Like any otheradverse evidence, expert evidence which negatively impacts on the claimant’s case must
always be put to him/her for comment and/or rebuttal. Where appropriate, judges should
recognise that they are not themselves experts (medical or psychiatric, for example) andshould ensure that appropriate deference is given to that expertise. Assistance in the use ofexpert evidence can usefully be obtained from the IARLJ Publications relating to COI andExpert Medical Evidence.
Judges and decision-makers have to come to credibility conclusions by themselves after
considering such expert evidence. This will not mean they are obligated to accept all expert
evidence going to credibility, but reasons should always be given for not taking such
evidence weight. As a rule, it is not an error of law if the court comes to the conclusion thatan expert’s evidence is not needed to assess the credibility of the claim.
See for further comment: “Adjudicating Refugee and Asylum Status: The Role of Witness,
Expertise, and Testimony” International Journal of Refugee Law (2016) 28 (1): 163-166

A.16: Findings made in previous claims
When judges are determining second or subsequent claims from the same claimant,
findings from the earlier claim, whether of positive or negative credibility, can be taken
into account.
Examples: In the EU, the EUQD and EUAPD (and domestic regulations in many EU states)
provide that negative credibility findings from earlier claims can be adopted by a decisionmaker or indeed, that the decision-maker is bound by earlier findings. The provisions ofArticle 5 of the EUQD (5(3) particularly) should be noted in regard to sur place claims andpotential “bad faith” claims where a claimant cynically creates the circumstances
underpinning the claim since leaving his country of origin.

A.17: Corroboration
Because of the particular nature of refugee and protection assessment, there is no
specific requirement for corroboration of the claimant’s account.

21

Explanation: In circumstances where there is no reason to doubt the claimant’s evidence,an uncorroborated account can be accepted without further support. Judges and decisionmakers may, however, consider that some facts can be accepted and others require someform of corroboration (where there do not appear to be any particular difficulties for theclaimant in producing relevant documents or other corroborative evidence). It must also be
noted here that the instant availability of web-based COI can, at times, provide corroboration
readily, or otherwise, right up to the time of the final determination. Again, caution must be
exercised to ensure fairness and “equality of arms” in the use of such material.

A.18: Partly credible claimants
Rejection of some evidence, material or peripheral, relating to past or present facts will
not necessarily lead to a rejection of all of the claimant’s evidence.
Explanation: The accepted profile of a claimant, used in “risk” and “well-founded fear”
assessments must take into account the accepted past and present facts presented by theclaimant. It is important in decision-making that the rejection of some aspects of credibility
does not warrant rejection of the account as a whole 9and vice versa, of course). In particular,
the more peripheral the facts that are not accepted are, the more difficult it will be to justify
wholesale rejection of the claimant’s entire evidence.
Example: It may be rejected that a gay man was detained and beaten. However, the fact ofthe man’s sexuality must be assessed against the totality of the evidence, including COI
which may establish that gays can only avoid serious harm in the country in question by theimpermissible concealment of the manifestation of their sexuality.

A.19: Treatment of similar claims
A finding of credibility, or incredibility, in similar claims, from claimants of the samenationality, does not imply that this claimant’s evidence is also credible or incredible.
Individual assessment is required.
A.20: Treatment of substantially different claims
Evidence from a claimant that is substantially different from that presented in otherclaims by persons of that nationality does not imply that this claimant’s assertions are
incredible.

A.21: Group-based persecution
Appeals coming before judges will, in virtually all cases, need individual assessment.
Decisions should not be made merely by virtue of a credibility assessment that either
accepts or rejects claims based solely on having “common characteristics shared by othermembers of a group”. However, in mass arrival situations, UNHCR or first-instance makers
may sometimes, of necessity, make such assessments by virtue of the claimants’ nationality,22

sex, age, ethnic or religious identity, or any combination of these, based of valid COI. Thus
whole groups of people may be recognised as refugees without particular claims needing to
be assessed further. No wholesale rejection of claims should occur, however.

A.22: Treatment of admission of earlier lies, contradictions or inconsistencies
Earlier lies or inconsistencies, openly admitted and explained, must be explored very
carefully as to their impact on credibility.
Explanation: Such evidence may assist positive or negative credibility assessment,
particularly taking into account the nature of refugee and complementary protection
assessment and relevant medical/psychiatric evidence where applicable.

A.23: “May have happened”
It is an error of law to make a finding that a fact, or facts, asserted by the claimant “mayhave happened”.
Explanation: Merely to say that certain events “may have happened”, lacks sufficient clarity.
Clear findings are required and such a conclusion by a decision-maker is too vague. The taskof the decision-maker is to identify the facts from the claimant’s evidence that are accepted
and those that are not accepted. The accepted facts (the facts as found) make up the profileof the claimant that is then used as part of the risk and harm assessments that follow. Thus,
vague conclusions of what “may have happened”, without either accepting or rejecting theclaim made, must be treated as errors of law in the decision-making process.

A24: Demeanour
Extreme caution must always be exercised in using aspects of the claimant’s demeanour,and the manner in which a claimant presents his or her evidence, as a basis for not
accepting credibility.
Explanation: The basic principle is that using demeanour as a basis for credibility
assessment should be avoided in virtually all situations. If demeanour is used as a negative
factor the judge must give sustainable reasons as to why and how the demeanour andpresentation of the claimant contributed to the credibility assessment, taking into accountrelevant capacity, ethnicity, gender and age factors. Additionally, it should only be used in
the context of a thorough understanding of the relevant culture, and in acknowledgment of
culture as a repertoire of possible behaviours which may or may not be manifested by anindividual. However, it must be recognised that, in reality, demeanour can have some impact
in an oral hearing. A major reason for having an oral hearing (as happens in mostjurisdictions) is so that the decision-maker can see and hear the claimant.

23

Example: In many cultures, it is a sign of respect not to make eye contact. In Westernculture, however, avoiding eye contact can appear evasive or dismissive. A Westerndecision-maker who does not understand the culture he/she is dealing with would make aserious error by relying on demeanour which was not properly understood. Similarly, posttraumatic stress disorder can make the sufferer’s presentation flat, or distracted, or stilted.
Clearly, such odd behaviour is explicable and, in fact, would be likely to support the claim, notundermine it.

A.25: Credibility findings on past behaviour modification to avoid risk
It is sometimes necessary for decision-makers to assess whether a person will modify
their behaviour in the future, in order to avoid serious harm.
Explanation: Such assessments will require consideration of the credibility of any claim thatthe claimant modified his/her behaviour in the past in order to avoid the harm. The decisionmaker will need to explore closely the reasons for past behaviour and whether or not it wasdone to avoid serious harm.
In some instances, the depth of their current beliefs or convictions may also be important toassess, particularly where the country information establishes that only that certain types ofconduct (eg, proselytising) attracts serious harm. Past and present behaviour linked tobeliefs genuinely held, or other characteristics protected by international human rights law,
are often the best indicators of future forms of behaviour (fundamental to the exercise of
these human rights).
Credibility findings on the claims of past behaviour are thus required as they then become
part of the accepted characteristics/profile of the claimant, used by the judge, step-by-stepas necessary, in the conclusions to be reached in the Harm, Risk and Reasons boxes that thenfollow.
Further guidance: Following a workshop in Berlin in June 2015 an Opinion / article on thisissue was prepared by a group of experienced IARLJ members, in which they consideredcredibility assessment in such cases, particularly in the European context. Parts 3 and 4 ofthis Opinion will be of assistance to judges dealing with this vexed issue. The article is“Credibility Assessment in Claims based on Persecution for Reasons of Religious Conversion andHomosexuality: A Practitioners Approach” by Berlit, Doerig and Storey, IJRL 2015 (4December 2015). It is available for subscribers at http://ijrl.oxfordjournals.org.
(Note: Findings on behaviour modification are clearly not just part of credibility
assessments and impact upon all the steps that follow. It is fair to say it is currently one of
the most vexed areas of refugee and protection assessment. The issue is often referred to as'the requirement to be discreet' or ‘concealment’ and most developed countries havegrappled with it in different ways. Put simply, should a person be expected to modify their
behaviour, to avoid exercising an internationally recognised human right in order to avoid
serious harm, where to do so would give rise to a real chance of persecution/serious harm? If
so, in what circumstances?

24

Recent jurisprudence in many countries is now addressing this issue closely. While different
arguments have been put forward as to why expecting someone to avoid harm by foregoinga human right is impermissible, international refugee law has now accepted that it isimpermissible for a decision-maker to decline a claim that is accepted as credible and giving
rise to a well-founded fear of being persecuted because the decision-maker thinks it ispossible for the claimant to modify behaviour arising from the exercise of their human rights,
or conceal a characteristic protected by the Convention.
One issue which has arisen is whether, where the very act of concealment itself involves theclaimant abandoning the exercise of a human right, persecution is thereby established? Thisline of argument does not address the concomitant requirement that the breach of the rightmust also occasion serious or severe harm. If the act of concealment (even if it causes a
breach of a right) does not cause serious harm, it is certainly arguable that it is notpersecutory.)
Authorities: DS (Iran) [2016] NZIPT 800788; Appellant S395/2002 v Minister for Immigrationand Multicultural Affairs (9 Dec 2003) [2003] HCA 71; HJ (Iran) and HT (Cameroon) v Secretaryof State for the Home Department [2010] UKSC 31.
Reading:
1. Berlit, Doerig and Storey “Credibility Assessment in Claims based on Persecution for
Reasons of Religious Conversion and Homosexuality: A Practitioners Approach” IJRL 2015
(4 December 2015)(B) PROCEDURAL STANDARDSGeneral guidance on procedure
Credibility assessments may be fundamentally flawed where, through faulty or
inappropriate procedures, claimants do not have the opportunity to present their claims
and supporting evidence fairly and reasonably.
Example: In Europe, at the first-instance stage, the EUAPD contains extensive provisions
designed to ensure procedural fairness. At the appeal or review stage, the requirements aregoverned by Article 39 EUAPD but note the requirement for granting an ‘effective remedy’also requires observance of a number of related concepts for a fair disposal.
Failure to observe procedural fairness requirements, which can lead to errors of law incredibility assessment, also includes failures to observe the following standards.

25

B.1: Interpreters
So far as is reasonably possible, claimants must have access to competent and unbiased
interpreters. There must be an ability to communicate effectively.
Decision-makers should ensure, so far as is reasonably possible, that claimants have accessto competent and unbiased interpreters. Further, there may be claimants who speak rare
languages or dialects, and able interpreters are simply not available. In such cases fair andpragmatic approaches should be adopted, recognising the constraints. In extreme
circumstances, double translation or telephone procedures may be required. There must,however, be a sufficient ability for meaningful communication. In most situations, areviewable error of law will be only be established where incompetence or bias is established.
At the commencement of any hearing, the role of the interpreter should be explained,
including the interpreter’s awareness that the hearing is confidential and the ability of theclaimant to understand the interpreter should be tested.
There is a need for particularly skilled interpreters in claims involving gender, religious
conversion and domestic violence cases, where terminology may be specialist and where
sensitivity to trauma is required.

B.2: Legal representation
Recognising that legal aid/representation is not available in some countries and/or at alllevels of status determination or judicial review, decision-makers should ensure thatclaimants have access to competent legal or other suitable representation, with orwithout legal aid.
Explanation: Unrepresented appellants must be accorded the highest standards of fairness,
recognising that whilst the burden to present their case is on the claimant, there is also ashared burden with the decision-maker. This is particularly important for claimants who fallwithin the vulnerable groups referred to below.

B.3: Effect of time limits
Unreasonable time limits upon claimants to respond to prejudicial information or toprovide further evidence of changed circumstances or COI, can breach basic fairness
principles which can render a whole determination/assessment unsustainable.

B.4: Interview facilities

26

A failure to provide a reasonable interview environment can, in some circumstances,
breach basic fairness and confidentiality principles amounting to an error of law.
However, situations may arise where, even in very poor facilities or surroundings, a fairhearing has still taken place (eg, such as within a prison).
Examples: Where a government, tribunal, judge or decision-maker fails to provide, where
reasonably possible, a conducive physical environment and/or facilities wherein interviews
and/or appeal hearings can be conducted with claimants (including the provision of specialist
facilities for children, vulnerable claimants and, where available, the requested gender ofjudge and/or interpreter).

B.5: Bias, incompetence and conflict of interest
Like substantive issues, procedural issues also involve the application of the maxim that“justice must be seen to be done” and, where a breach of any of these issues arises, any
findings on credibility, and indeed all other issues, may be wrong in law.
Explanation: Such issues should not arise in a well-administered system as they will breachprinciples set out in Administrative law codes and/or binding jurisprudence in States. Evensound credibility findings risk being set aside on review if the judge cannot be satisfied as totheir reliability because of the existence of procedural errors. Systems which fail to treat
claimants in procedurally fair ways are likely to face high levels of successful reviews.

(C) TREATMENT OF VULNERABLE CLAIMANTS
General guidance on vulnerable claimants
Overview
Only one general standard of good judicial practice is provided here, rather than setting a listof separate standards for every known type of vulnerability or sensitivity. This is done
because, not only would it be impossible for such a list to be exhaustive, it is frequently thecase that the vulnerability of individual claimants has a number of overlapping causes. It is
the totality of the claimants’ physical and psychological predicament that must be taken into
account in the assessment of their evidence.
In adversarial jurisdictions, because of the need to recognise vulnerabilities and their impact
on the giving of evidence, its nature and coherence, as well as in the credibility assessment,a more "interventionist" (or shared burden) approach by the judge is often allowed or even

27

encouraged by the highest courts. If it is used, however, it must be used carefully, with theknowledge and co-operation of counsel and/or the claimant.
Vulnerable or sensitive individuals may be more easily influenced by the way information andchoices are presented, leading to a tendency to guess an answer rather than say “I don’tknow”. Apparently contradictory answers may indicate a lack of understanding of a question
or a wish to provide answers when in fact the memory of the event is impaired, whether due
to psychological difficulties or normal memory decay.
Gaps in knowledge may not of themselves undermine credibility as in many cultures detailed
political, religious, military or social matters may not be disclosed by men to women,children, or other vulnerable individuals.
Vulnerable and sensitive witnesses may not be forthcoming with information if appropriate
interviewing and questioning techniques are not utilised.
COI may not be readily available to support claims from vulnerable and other minority
groups. Their experiences of political or other activity may not be direct and thus not readily
corroborated through documentation.
Background reports frequently lack sufficiently detailed reportage and analysis of theposition and status of women, children and other vulnerable individuals other than in generalsocietal form. Thus, in such circumstances, decision-makers will need to ensure, if possible,that more detailed information is obtained from the claimant and other sources of direct
testimony during the hearing.
C.1: Vulnerable claimants
In assessing the credibility of the evidence of a vulnerable or sensitive claimant, a failure
to take into account appropriately their specific vulnerabilities can lead to an error of law.
Explanation: The need to protect vulnerable people is at the heart of the humanitarian
nature of international protection determination. The predicament of particularly vulnerable
or sensitive claimants requires careful understanding and reflection in the credibility
assessment (see, for example, Article 13.3 EUAPD).
Some individuals are, by definition, vulnerable or sensitive. (For example: children, some
women, other individuals who suffer from mental illnesses, have been victims of trafficking
or who have sustained serious harm, torture, sexual and gender based violence.) However
others are less easily identified. For example, persons who have suffered long-term
discrimination may be suffering mental health effects which are not immediately apparent.
Factors to be taken into account in assessing the level of vulnerability and the impact on
assessment of credibility include:

Mental health problemsSocial or learning difficulties

28



Sexual orientation

Ethnic, social and cultural background

Domestic, education and employment circumstances

Physical impairment or disability

Examples: The experiences of women (and other vulnerable and sensitive individuals) often
differ significantly from those of the generality of male claimants because for instance,
political protest, activism and resistance may be manifested in different ways. The secondclass status of women in some countries must be understood, including their ability to givecertain evidence in the presence of their husbands (or other men).
Awareness of the marginalisation of women and other vulnerable and sensitive claimants
must be taken into account in the assessment of credibility. For example, expression ofpolitical opinion may not be manifested through conventional means, such as involvementin political parties, but may take less conventional forms of expression such as refusal toabide by discriminatory laws or to follow prescribed codes of conduct. Unless it isappreciated that such conduct may either be a manifestation of political opinion or beperceived as such, it may be incorrectly categorised as personal and private conduct. The
decision-maker should bear in mind in assessing such claims that acts suppressing vulnerable
claimants in their country of origin may be based on political opinion in its widest sense, andthis may be relevant when later assessing whether there is a nexus to a Convention reason.
Consideration may sometimes need to be given to holding the hearing in private to avoid
overt or covert intimidation. “In private” may even mean in the absence of all other persons,or all males, or all members of the claimant’s family. The extent will depend on thecircumstances.
Improper or aggressive cross-examination should be curtailed to avoid harassment,
intimidation or humiliation. Questions should be open and appropriate to the age, maturity,
gender, level of understanding, personal circumstances and attributes of the witness.
Children often do not provide as much detail as adults in recalling experiences and may
manifest their fears differently from adults. The special needs of unaccompanied minors
must be particularly taken into account and it is important that they have appropriate adultrepresentation to assist in giving their evidence (see, for example, Article 17 of the EUAPD).
A modified, less restrictive approach should be adopted in assessing the credibility ofchildren; particularly younger ones (see the UNHCR Handbook (2011) at [217]).
In addition, some forms of disability and/or trauma may cause or result in impaired memory,and the manner in which evidence is given may be affected by mental, psychological oremotional trauma or disability. Torture and other persecutory treatment can produce
profound shame and this may be a significant obstacle to disclosure.
With family dependants of a claimant, it is important not to assume that they have only
derivative claims. Indeed, such claimants may have substantially different, and evenstronger, claims. For example, a wife whose husband lodges a politically based claim may
have a separate claim based on domestic violence, family honour or serious harm based on
local customs, religion or norms.

29

Where a first claim was initially made as a dependant (or the person was treated as adependant), a subsequent later claim may emerge because the person never received
adequate legal advice and, in such cases, an adverse inference may not be appropriate.
The presence of family members in any interview or hearing may be a help, but it cansometimes be an obstacle to the disclosure of information. Enquiries as to whether family
members should attend the interview or not will often be a judgement call based on thenature of the claim, an understanding of the culture involved and the best interests of theclaimant.

(D) RESIDUAL DOUBTS AND THE “BENEFIT OF THE DOUBT” PRINCIPLE
D.1 Where a decision-maker is left with residual uncertainty or there are remaining
doubts about some parts of the claim, perhaps due to unsupported evidence, if all otherevidence is accepted as credible, the benefit of the doubt should be applied.
It is internationally accepted good practice for judges to apply the “benefit of the doubt”
principle where there is residual doubt held in the acceptance of material facts in theclaimant’s evidence.
Explanation: The principle of the benefit of the doubt reflects recognition of theconsiderable difficulties claimants face in obtaining evidence to support their claim as wellas the potentially grave consequences of a wrongful denial of protection. The application of
the benefit of the doubt allows the decision maker to reach a clear conclusion to accept amaterial fact as credible where an element of doubt remains.
Expectations as to a claimant’s ability to substantiate his or her application; the indicators
used to assess the credibility of the claimant’s statements; and the criteria applied indetermining whether to afford the claimant the benefit of the doubt are all based onassumptions about human memory, behaviour, values, attitudes, perceptions of and30

responses to risk, and about how a genuine account is presented. However, scientificresearch has shown that many of these assumptions may not be in accordance with what is
now known about human behaviour, memory and perceptions. Where a decision-maker has
a basic underlying assumption there is a norm of behaviour or response, he/she may(wrongly) conclude that deviations from this norm may be indicative of a lack of credibility.
In fact, research indicates that there is no such norm, and that human memory, behaviour
and perceptions of risk vary widely and unpredictably because they are affected by a wide
range of factors and circumstances.
For this reason, the credibility assessment must be conducted taking into account fully theindividual and contextual circumstances of the claimant. This requires the decision-makerto cross geographical, cultural, socio-economic, gender, educational and religious barriers
and to take into account different individual experiences, temperaments and attitudes.
Indeed, such an approach is the internationally accepted legal requirement. Decisionmakers need to strive to be aware of the factors that may influence their own approaches tocredibility.
The claimant’s individual and contextual circumstances should be taken into accountroutinely and in an integrated manner in all aspects of the credibility assessment. This
includes, for instance, in determining whether the claimant has made a genuine effort tosubstantiate the application; whether the decision-maker has discharged his or her duty tocooperate in this process; whether specific factors are reliable indicators of credibility;
whether explanations given by the claimant for credibility concerns are reasonable; whether
reasons provided by the claimant for a lack of supporting evidence are satisfactory; andwhether the principle of the doubt should be applied. As such, it is crucial that the decisionmaker seeks to identify and understand, at the earliest possible opportunity, all individualand contextual circumstances which may affect the credibility assessment. 13
The recommended UNHCR approach to the benefit of the doubt emanates from thedevelopment of international refugee law and practice that goes some years back to theprovisions of the UNHCR Handbook (1979), at [195]-[205]. The Handbook states that, while
the duty rests with the claimant to establish their case, there is a shared duty between theclaimant and the decision-maker to identify supporting corroborative evidence and it is thenthe responsibility of the decision-maker to evaluate all the relevant facts. Paragraphs [195][197] of the Handbook state:“195.
The relevant facts of the individual case will have to be furnished in the first place by
the applicant himself. It will then be up to the person charged with determining his status (theexaminer) to assess the validity of any evidence and the credibility of the applicant's
statements.
196.
It is a general legal principle that the burden of proof lies on the person submitting aclaim. Often, however, an applicant may not be able to support his statements by
documentary or other proof, and cases in which an applicant can provide evidence of all his
statements will be the exception rather than the rule. In most cases a person fleeing frompersecution will have arrived with the barest necessities and very frequently even without
personal documents. Thus, while the burden of proof in principle rests on the applicant, the13This useful quote is taken from a paper produced by the UNHCR: “Beyond proof-credibility assessment in EU asylum systems –Summary”, May 2013.

31

duty to ascertain and evaluate all the relevant facts is shared between the applicant and theexaminer. Indeed, in some cases, it may be for the examiner to use all the means at his disposal
to produce the necessary evidence in support of the application. Even such independent
research may not, however, always be successful and there may also be statements that are
not susceptible of proof. In such cases, if the applicant's account appears credible, he should,
unless there are good reasons to the contrary, be given the benefit of the doubt.
197.
The requirement of evidence should thus not be too strictly applied in view of the
difficulty of proof inherent in the special situation in which an applicant for refugee status finds
himself. Allowance for such possible lack of evidence does not, however, mean that
unsupported statements must necessarily be accepted as true if they are inconsistent with thegeneral account put forward by the applicant.”

As noted by UNHCR, even shared research may not always be successful at finding
corroborative evidence and, ultimately, the claimant’s statements may not all be capable ofproof. In such cases, the claimant should be given the benefit of the doubt provided that theaccount is otherwise credible. The UNHCR Handbook confirms, at [203]-[204], that thebenefit of the doubt should be given, while also explaining that it does not mean that there
must be unqualified acceptance of uncorroborated claims. Paragraph [204] states:“The benefit of the doubt should, however, only be given when all available evidence has beenobtained and checked and when the examiner is satisfied as to the applicant’s generalcredibility. The applicant’s statements must be coherent and plausible, and must not run
counter to generally known facts.”

At the international court level, the ECtHR has reconfirmed the application of the benefit ofthe doubt principle in JH v UK Application (20 March 2012) Appl no 48839/09, stating:“52.
The assessment of the existence of a real risk must necessarily be a rigorous one(see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96;
and Saadi v. Italy, cited above, § 128). It is in principle for the applicant to adduce evidence
capable of proving that there are substantial grounds for believing that, if the measurecomplained of were to be implemented, he would be exposed to a real risk of being subjected
to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). The
Court acknowledges that, owing to the special situation in which asylum seekers often findthemselves, it is frequently necessary to give them the benefit of the doubt when it comes toassessing the credibility of their statements and the documents submitted in support thereof.
However, when information is presented which gives strong reasons to question the veracityof an asylum seeker’s submissions, the individual must provide a satisfactory explanation for
the alleged discrepancies (see, also other decisions from ECtHR , such as N. v. Sweden, no.
23505/09, § 53, 20 July 2010 and Collins and Akasiebie v. Sweden (dec.), no. 23944/05,
8 March 2007).”

The term “benefit of the doubt” in different legal contexts
It must be observed also that the phrase “the benefit of the doubt” is used, in the asylum
context, in a different sense from its more familiar application in criminal proceedings.
In the criminal context it is a reflection of the fact that the burden is on the prosecution (state)
to demonstrate that, on the totality of the evidence, there is no residual doubt which a
reasonable person might have as to the guilt of the accused. Where such a doubt exists it
must be resolved in favour of the accused and the charge be dismissed. It reflects the factthat the duty on the prosecution is to prove guilt “beyond a reasonable doubt”.

32

In refugee and protection claims the term’s application, as we have noted, is wholly different
in nature. First, the primary burden of proof rests on the claimant who is asserting the ‘facts’
on which he or she relies to support his/her claim. Secondly, it is in the nature of refugeeclaims, for the reasons which have been explained above, that a claimant may not be able to‘prove’ his or her claims by reference to corroborative evidence, because of thecircumstances of his/her departure, the need to maintain the confidentiality of his/her claim,
or because of other factors which impair the claimant’s ability to give evidence.
(NOTE: In the EU context, when judges make assessments for recognition under the EUQD,
it will be an error of law not to adopt, at least, the minimum provisions of Article 4 of the
EUQD. In Member States which consider that it is the duty of the claimants to submit allelements needed to substantiate their applications (as expressed in Article 4.1 (first
sentence), and 4.5 of the EUQD), judges who have residual doubts as to credibility (arisingwhere claimant’s statements are not supported by documentary or other evidence), must
resolve such doubt by applying, at a minimum, Article 4.1 ( second sentence), the provisionsof Article 4.2 –4.4, and in particular 4.5 (a)-(e). The differences and possible compatibilities
which appear to now be adopted between the EUQD approach and the more established,“benefit of the doubt” approach in international refugee law, as suggested by the UNHCR,
clearly need considerable study. 14)

PART IV: THE COI JUDICIAL CHECKLISTJUDICIAL CRITERIA FOR ASSESSING COUNTRY OF ORIGIN INFORMATION (COI): A
CHECKLIST AND EXPLANATION
Presented by Allan Mackey and Martin Treadwell
Adapted from Papers presented at the 7th Biennial IARLJ World Conference, Mexico
City, 6-9 November 2006 and at IARLJ, UNHCR, ACCORD - COI conference in
Budapest, 2005
For use at the IARLJ / Korean Judicial Research and Training Institute (JRTI)First conference for Asian Judges in Seoul, 10-11 June 2016

When assessing Country of Origin Information (COI) in the context of refugee and protection
cases, judges may find the following nine questions useful:
Relevance and adequacy of the informationi)

How relevant is the COI to the case in hand?

14 The IARLJ judges and others who participated in the Madrid workshop (September 2012), on this paper, debated the dilemma of the two

optional approaches and resolved that this issue was one that needed much more consideration and research by the IARLJ (Europe)
Working party, which will continue work on Credibility assessment issues. However it may be of some reassurance to note that, from theiranecdotal views and wide experience, the general consensus was that, in practice, if all the other criteria and standards set out in the paper
are applied, similar outcomes resulted from the application of either option.

33

ii)

Does the COI source adequately cover the relevant issue(s)?

iii)

How current or temporally relevant is the COI?

Source of the informationiv)

Is the COI material satisfactorily sourced?

v)

Is the COI based on publicly available and accessible sources?

vi)

Has the COI been prepared on an empirical basis using sound methodology?

Nature / type of the informationvii)

Does the COI exhibit impartiality and independence?

viii) Is the COI balanced and not overly selective?
Prior judicial scrutinyix) Has there been judicial scrutiny of the COI by other national courts of the COI in question?

34

COI JUDICIAL CHECKLIST:
EXPLANATORY MEMORANDUM
1.
In the course of dealing with refugee and protection appeals, decision-makers and15
judges will depend to a great extent for their ability to make sound judgments on
having before them up-to-date and reliable country background information or “Countryof Origin Information” (COI). 16 The probative value of an asylum seeker’s evidence has
to be evaluated in the light of what is known about the conditions in the country oforigin. 17
The demands on decision-makers and judges are huge. Sometimes, within a very shortperiod, he/she may be called on to decide cases of claimants from several different countries.
He/she may be expected to decide at one moment on whether an asylum seeker is a memberof a sub-clan of a minority clan based in Somalia and also to determine whether that amember of that clan is at risk and without effective state protection. At the next moment
he/she may be asked to assess whether a member of a Syrian “rebel group” is at risk from
ISIS, the Assad regime or generalised violence. In a rapidly changing world he/she may needto decide whether a former Tamil member of the LTTE from Northern Sri Lanka would today
face a real risk of serious harm, or only a remote risk in the light of changed circumstances
there. Faced with such diverse cases and shifting political scenarios, judges desperately needaccurate and reliable information in order to determine justly who is in need of international
protection.
2.
COI is evidence the decision-maker should take into account. It is a crucial aid.
But it will rarely be determinative by itself. How much it will help to determine theindividual case will vary depending on, among other factors, the extent to which theclaimant`s case is based on personal characteristics or circumstances which he shareswith others similarly situated. COI may not be relevant to the same degree in every case.
18

3.
For a decision-maker, making findings on country conditions is not an end in
itself: indeed it is not his/her function to pass judgment on the human rights performanceof other countries.19 He is only required to make a finding on the need for protection ina particular case. Nevertheless, within that context, general findings as to country
conditions must sometimes, of necessity, be made.
15 The term “judges” or “refugee law judges” is used here to cover all types and levels of judicial or quasi-judicial decisionmakers regardless of whether they deal with asylum or asylum-related cases regularly or only occasionally.
16 COI has been defined as “[a]ny information that should help to answer questions about the situation in the country ofnationality or former habitual residence of a person seeking asylum or another form of international protection”. See B
Svec of the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), in apresentation to the IARLJ November 2005 Budapest Conference.
17 1979 UNHCR Handbook para 42: “[T]he applicant`s statements cannot, however, be considered in the abstract, andmust be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant’s
country of origin - while not a primary objective - is an important element in assessing the applicant’s credibility”.
18 See the paper by Alice Edwards, op cit: "AI also reiterates that country of origin information alone cannot foresee therange or types of abuses that a particular individual may suffer in a given context and so cannot be relied upon to thesame degree in every case”.
19 1979 UNHCR Handbook, para 42.

35

4.
Conversely, assisting refugee decision-makers is not an end in itself for mostbodies who produce COI. Usually, their aim is to provide an analysis (for generalcirculation) of a country`s human rights performance or of some related aspects. That
has perhaps the advantage, from the point of view of the decision-maker, that it cannot
be suggested the COI has been “tailored” for use in supporting refugee claims.
5.
In recent years a number of states who are signatory to the Refugee Convention
have written into their national law specific provisions as to how decision-makers(including judicial decision-makers) are to approach the assessment of a person`srefugee or protection claim.20 There has also been a major regional initiative within theEuropean Union to harmonise national approaches in this and other respects. Article 4 of the
EUQD deals with the assessment of facts and circumstances relating to a claim forinternational protection. Article 4(3) states:“The assessment of an application for international protection is to be carried out on an
individual basis and includes taking into account:…”

6.

Five matters are then mentioned. The first specifies:“(a) all relevant facts as they relate to the country of origin at the time of taking a decision on
the application; including laws and regulations of the country of origin and the manner inwhich they are applied.”

This provision highlights the importance of COI to all refugee decision-makers.
7.
Background COI will derive from diverse sources, including reference works (forexample, maps, encyclopaedias and yearbooks), reports or papers by international
bodies (eg, UNHCR, UN Human Rights Committee), international NGOs (eg, Amnesty
International reports, Human Rights Watch reports, International Crisis Group reports),
national bodies (eg, the US State Department Reports, the Danish Immigration Service
reports, the United Kingdom Country of Origin Reports (COIR21), news and media
clippings and databases, legal materials (laws, jurisprudence, etc) and cross-checking ofother refugee claims. 22 Reports can be generic (eg, US State Department reports and
EASO reports ), event or group specific (e.g. reports from trials, minority profiles) or
claimant specific (eg, embassy checks). There are a number of databases which are

20 See e.g. s.8 of the Immigration and Asylum Act (Treatment of claimants, etc) Act 2004 (UK).
21 Formerly CIPU (Country Information and Policy Unit) reports. CIPU was formerly part of the Home Office

Asylum and Appeals Policy Directorate, but in May 2005 was moved to the government`s Research
Development and Statistics (RDS) section. Reports produced by this section are now called Country of Origin
Reports (COIR).
22 See “Country of Origin Information: Towards Enhanced International Cooperation”, UNHCR Feb 2004

(hereafter “2004 UNHCR COI Report”), para 13(iii).

36

specific to protection-related work: eg, UNHCR’s Refworld and ACCORD’s online COI
database, ECOI. 23
8.
Practices vary as to how COI comes to be placed before judges in refugee andprotection cases. Adversarial systems often depend on the parties submitting suchmaterials. Judges in inquisitorial systems, however, may obtain COI by their own
initiative, usually with the help of dedicated staff/research units/trained specialists.24
Other systems mix the two approaches and are sometimes able, in important cases, to holda preliminary hearing at which the parties are notified of relevant country materials and areasked to cover them in their submissions.
9.
Another source of COI comes in the form of reports written by country experts
who are typically academics, researchers or journalists with considerable experience inthe field.
10.
Despite the fact that judges are not country experts, they are often faced withhaving to evaluate country materials in order to make findings, where relevant, on
general country conditions, eg, on whether draft evaders in Eritrea are at risk or whether
ordinary Christian converts are at risk on return to Iran. The judicial focus is always on theindividual case, but individual cases often involve generally occurring facts. 25
11.
The question arises – by reference to what criteria should judges evaluate
background country materials? In approaching this question, regard must be had to theconsiderable work over the past 25 years on developing reliable COI databases. UNHCR,
together with many other bodies, has been at the forefront of efforts to develop proper
systems and criteria for COI. 26 UNHCR sees scope for considerably enhanced international
cooperation in the field of COI, particularly at the regional level and is actively co-operatingwith the European Commission on a number of COI initiatives.27 Major country reportwriting bodies both at governmental level (eg, the US State Department reports) and at NGO
23 Austrian Centre for Country of Origin and Asylum Research and Documentation. For a helpful list, see Elisa Mason,“Guide to Country Research for Refugee Status Determination”, Jan 2002, LLRX.com/features/rsd2.htm at para 38 gives
a useful list of asylum and refugee resources.
24 In Canada the Immigration and Refugee Board (IRB) has a research programme that makes available

current, public and reliable information to all parties in the refugee protection determination system.
25 See UK case of Manzeke [1997] Imm AR 524 (Lord Woolf): "It will be beneficial to the general administrationof asylum appeals for Special Adjudicators to have the benefit of the views of a Tribunal in other cases on
the general situation in a particular part of the world, as long as that situation has not changed in themeantime. Consistency in the treatment of asylum-seekers is important in so far as objective
considerations, not directly affected by the circumstances of the individual asylum-seeker, are involved".
See further 2004 UNHCR COI Report para 9: “The information needed to assess a claim for asylum is bothgeneral and case-specific”.
26 See “Country of Origin Information: Towards Enhanced International Cooperation”, UNHCR Feb 2004
(hereafter “2004 UNHCR COI Report”). The European Council on Refugees and Exiles (ECRE) in the 4th
paper in its Way Forward series entitled “Towards Fair and Efficient Asylum Systems in Europe” suggests as
one of the areas of cooperation for EU Member States: sharing of existing country of origin information andcoordinated use of joint fact-finding missions.
27 See 2004 UNHCR COI Report, para 7ff.

37level (eg, Amnesty International) have developed their own methodologies for compiling andevaluating COI. But there are particular features of the judicial decision-making role which
require us to develop and identify our own criteria. Below, we offer a nine-point COI“judicial checklist” which lists in the form of questions, a number of (non-exhaustive)
criteria which reflect current best international judicial practice adopted when assessing
how much weight can be attached to a particular COI source or reference. There thenfollows an explanation for each inclusion. It will be obvious that some of these criteria
overlap. No single criterion should be treated as decisive. They are grouped under threemain sub-headings. Whilst the ordering given is not to be seen as fixed, it is intended toreflect the usual order in which questions relating to the evaluation of COI will normally beraised.

1.

Relevance and adequacy of the Information

1.1

How relevant is the COI to the case in hand?

1.1.1 Relevance is an obvious criterion; for the judicial decision-maker, the primary concern
is with information that is legally relevant in the sense of helping to answer case-related
questions.
1.1.2 Obviously, there is little value in background materials that do not bear on theprincipal country issues that have to be determined. As trite an observation as this may
sound, it is remarkable how often decision-makers find nothing in country materials directlyon the point with which they have to grapple. That does not mean that COI found to be ofno or little relevance is not extremely salient in other cases or in other contexts. Relevanceof the material is a judgement about the particular case, rather than the COI.
1.1.3 Generally speaking, preference will be given to reports whose content relates toprotection-related issues, eg, which deals with human rights violations and the situation ofminorities and displaced persons. The pioneering Evian Report (1990) identified as a key
criterion that “the main scope of the database would be material describing the human rights
situation in countries from where there are refugees coming or likely to come.”
1.2

Does the COI source adequately cover the relevant issue(s)?

1.2.1 One obvious criterion for evaluating the worth of certain types of COI sources iswhether or not they give full or adequate treatment of the relevant country
conditions/issues. If, for example, there is an issue about the fairness of a country’s judicial
system, then it is obviously important that the decision-maker should be able to learn about
all relevant factors relating to the national justice system.
1.2.2 Given that the duty on a decision-maker is normally to consider a person’s claim in
the context of the evidence relating to conditions in the country of origin as a whole,considerable value may be placed on reports which furnish both a detailed overview ofconditions there and also particulars about relevant groups and categories (eg, the positionof different ethnic minorities or of vulnerable categories). Thus, within the EU, judges

38

dealing with cases from Somalia have increasingly begun to have regard to periodic Joint
reports drawn up by officials from several EU countries who have conducted a fact-finding
mission.28 The 2004 Joint report contains sections dealing in detail with diverse aspects ofSomali affairs: its history, political institutions, legal system, clan structure, the position ofvulnerable categories etc.
1.2.3 However, the extent to which COI that is both general and particular is required willvary from case to case and over time.
1.2.4 Comprehensiveness will obviously not be an appropriate feature to expect of sourcesthat seek to deal only with a specific incident or situation, eg, a press cutting describing
recent arrests of dissidents. But it will be appropriate for reports which purport to give a
detailed overview of the general country situation to deal fully with specific issues. However,just because a report which purports to be comprehensive does not mention a particular
event or fact does not necessarily mean it did not happen/is not true. 29
1.3

How current or temporally relevant is the COI presented?

1.3.1 Most national refugee determination systems require the decision maker to decide
the issue of whether someone is a refugee or in need of protection on the basis of thesituation at that time.30 What is normally being assessed is “future risk” by reference to theprevailing circumstances as at the date of hearing. This requirement is not an easy one forjudges to apply, since the reports placed before them will by definition be dealing with events
that, by then, are past. But in order to maintain the integrity of the decision-making process
it is vital, when national legislation requires decision-makers to assess current risk,31 that they
make assessments in the light of the latest evidence and avoid reliance on obsolete or outof-date COI. That can be a challenge in some cases, since even very well-established country
reports can rely on sources that are no longer recent. The 2004 UNHCR COI Report highlights
problems of this type. 32
28 For example, the joint British, Danish and Dutch fact-finding Mission (17-24 September 2000);The joint
British and Danish fact-finding mission to Nairobi (Kenya) and Baidoa and Belet Wayne, Somalia, "Reporton political, security and human rights developments in southern and central Somalia, including South West
State of Somalia and Puntland State of Somalia", 20 May to 1 June 2002; the joint Danish, Finnish, Norwegianand British Fact finding mission to Nairobi, Kenya 7-12 January 2004 published 17 March 2004 entitled"Human Rights and Security in Central and Southern Somalia".
29 In this regard it must not be overlooked that bodies involved in the production of COI are often working
under pressure and may be under-resourced.
30 In systems which confine assessment to an error of law or judicial review approach, it may be that all thatcan be examined is whether the evaluation made by the original decision-maker was within the range ofreasonable responses, i.e. not perverse or irrational. However, where a material error of law is found, somecountries then allow at that stage for the appeal to be considered on its merits, in the light of the latest
country information: see e.g. the position in the UK of the Asylum and Immigration Tribunal as analysed by
the Court of Appeal in R (Iran) [2005] EWCA Civ 982.
31 In the US it is apparently risk at the date of the application.
32 Para 19: “One general problem is that certain types of information age quickly and lose relevance whencountry situations can change rapidly. Collections, unless regularly up-dated, become retrospective rather
than forward-looking. Another widely recognised problem is “round-tripping” when secondary sources begin
to cite each other”.

39

1.3.2 It is largely because of the importance of basing decision on current information thatparticular value is often attached to reports which are produced on a regular or periodic basis.
UNHCR Position Papers, the US State Department reports, Amnesty International reports
and Human Rights Watch reports are produced annually, the latter two bodies sometimes
producing additional interim or periodic reports. In the UK, the Home Office Country of
Origin Services Reports (COIR) (formerly the CIPU reports) provide information on a numberof countries (currently 20) and are produced bi-annually, in April and October. Sometimes,
it may even be important to know about events only a day or two old (eg, if there has justbeen a coup).
1.3.3 Of course, COI can also be vitally relevant in testing or establishing matters relating
to historical aspects of the appellant’s experiences. As Alice Edwards put it in her paper to
the November 2005 IARLJ Budapest Conference:
While `future risk` of persecution is a key question in any asylum determination, it is almost
always necessary to review the individual’s past experience and past practices in order todetermine the likelihood of harm in the future. An individual who fled in 2000 due to serious
abuses at the hands of government officials arising out of their political activities should havethis information taken into account. It would produce a distorted picture of his or her claim if
a decision-maker only considered the practices of the government in 2005. Historical evidence
and patterns of behaviour and practices are important indicators of potential future risks.

1.3.4 Having to decide questions about current risk categories by reference to COI which is
not up-to-date may not be an easy situation for judicial decision-makers in some countries,
since their legal system can still require an answer on the basis of whatever evidence that is
before the judge. However, as a general rule judicial decision-makers will try in such cases toavoid anything which could be taken as country guidance for other cases.
2.

Sources of the Information

2.1

Is the COI material satisfactorily sourced?

2.1.1 Depending on the context, sourcing may be about accurate referencing (eg,footnoting) or about recording corroborating statements or reports.
2.1.2 Attribution, where possible, increases judicial confidence in a report. A report whichsimply sets out its account and conclusions without making clear from where, or from whom,
it has obtained the information can rarely be given credence. Judges may well regard suchreports as being of uncertain or unknown provenance. On the other hand, judges have to beaware that sometimes sources are anxious not to be identified.
2.1.3 In a world in which there are often vested interests in how a country’s human rights
performance is presented, decision-makers may be wary of COI or reports which depend
wholly or mainly on just one or two sources. For this reason, they tend to place more relianceon reports which are multi-sourced and demonstrate cross-referencing or corroboration for40what they describe.33 Where there is more than one source for any particular observation
contained in a country report the judge may be able to consider that that observation has
been corroborated. Sometimes a decision-maker may be able to seek corroboration in thefact that there is more than one report confirming the same point.
2.1.4 The independent research unit within the Immigration and Refugee Board of Canada(IRB) employs what it refers to as the “Triple ‘C’ Methodology” – compare, contrast andcorroborate.34 This captures very well the need for COI from which one can see that its
contents are the result of cross-checking.
2.1.5 In certain cases, such as reports which purport to be definitive on a particular issue, it
may be appropriate to expect them to annex all the background materials on which they
have relied, so that readers know precisely the data on which the principal conclusions werebased. 35
2.1.6 Much will depend on the quality of the sources cited. Decision-makers will be waryof too- ready acceptance of accounts based on obscure, unrepresentative or inaccessible
sources. In Ireland, it is seen as a helpful rule of thumb for judicial decision makers tocorroborate information by taking examples from at least three strata in a “hierarchy”
starting with (1) intergovernmental sources, then governmental sources and internationalNGOs, (2) then international news reports, national NGOs, national news, then local
governmental sources, local news, then (3) ordinary witnesses. Whether or not one agrees
with the notion of a hierarchy – perhaps better would be the notion of perspectives fromdifferent vantage-points – recourse to different types of sources as indicated would appear
to be useful.
2.1.7 What the decision-maker needs to be assured of is whether the COI is accurate, but
he/she can only do that by reference to multi-sourced information.36 Otherwise, there is noproper basis of comparison for deciding whether information given is accurate. At the sametime, it may be important on occasion to make allowances for the fact that the source has
tried to give vital information quickly, without being able to be certain of the full story, sothat the outside world will begin to take an interest, or because the information is needed toforce an international response (Rwanda in 1994 is a case in point). Sometimes, having one
source will be better than none.

33 To similar effect the 2004 UNHCR COI Report states at para 24: “Experience shows that a coherent body of
information requires multiple sources and that no particular source can generally be ruled out.”
34 We are grateful to the IRB for its presentation to the IARLJ November 2005 Budapest Conference in which
this point, among others, was explained.
35 In the UK it is now routine that decisions by the Upper Tier Tribunal (Asylum and Immigration Chamber)(UKUT) which are designated as “country guidance” (CG) cases, contain an appendix listing all the sources
considered: see UKUT website under “Country Guidance”, and further guidance at 4.1.5 below.
36 Care must always be taken to ascertain whether sources are genuinely different and are not in fact basedon the same primary source: this is the well-known problem of information “round-tripping”.

41

2.1.8 It may be that, on occasion, information will emerge that is not, or cannot easily be,corroborated yet which may be said to be highly indicative of the real situation.37 Clearly,
decision-makers must be astute to the possible value of all kinds of sources, but it remains areality that they are obliged to decide cases in accordance with the evidence, not hunches orinspired guesses.
2.1.9 Decision-makers also need to assess accuracy within the context of the facts of theindividual appeal. When considering accuracy, it will always be important to keep a sense of
proportion. A source may be found to contain several errors but not necessarily ones which
undermine the reliability of the rest of the report. In this regard, it may be necessary toconsider how well-established the source is and whether, over time, it seeks to correct andremedy inaccuracies in later reports. 38
2.1.10 Because we do not live in an ideal world where all COI meets rigorous standards, it isinevitable that, to some degree, decision-makers will tend to attach weight to materials thathave achieved an international reputation and are frequently used: eg, reports of the UN
Human Rights Committee, UNHCR Position Papers, US State Department reports, Human
Rights Watch reports and Amnesty International reports.39 They will do so in part becauseof their need for digested information: even in inquisitorial systems, judges do not have thetime to go hunting for uncollated/unassimilated country information or to conduct their own
statistical analyses. The rationale for considering reputation is that such sources have earned
respect from many quarters for having been shown to provide a relatively reliable picture ofcountry conditions over a significant period of time.40 The reputation may attach to theorganisation or body producing the report and/or to the report itself. 41
2.1.11 Judges are aware, however, that even reputable sources are criticised from time totime and that it may be necessary on occasions to examine whether such criticisms are valid
in relation to a particular issue and/or whether those writing the reports have acted to
improve the standards of their reports42. We have also to be aware of new bodies in the field
37 Alice Edwards, op cit, p 5.
38 Alice Edwards, op cit, stated: “For AI, accuracy means that researchers always seek to verify or corroborate
information; that information is gathered from different sources, wherever possible; all sides of the story are
to be pursued; testimonies are to be collected from different witnesses; and the information must be
carefully distinguished (e.g. rumours versus allegations versus confirmed reports). AI analyses theinformation, identifies patterns, and chooses its language carefully, to avoid misleading or inaccurate
reports.”
39 In a UK Court of Appeal case, R v Special Adjudicator, ex p K (FC3 1999/5888/4, 4 August 1999, Amnesty
International was recognised as “a responsible, important and well-informed body” and judges wereexhorted to “always give consideration to their reports”.
40 This is similar to UNHCR criteria: see 2004 UNHCR COI Report para 19: “Given finite resources and the needto enhance productivity, preference is naturally given to information and/or assessments already “digested”(evaluated from a reputable source (another government, an intergovernmental agency, or an NGO).”
41 See Alice Edwards, op cit, p.3.
42 See eg, the critique of US State Department reports by Lawyers Committee for Human Rights, 30 April 2003,“A Review of the State Department Country Reports on Human Rights Practices`, before the Committee on
International Relations, Subcommittee on International Terrorism, Non-Proliferation and Human Rights; the“Critique of State Department’s Human Rights reports”, by Human Rights Watch (4 April 2003); Gramatikov

42with emerging reputations as providing reliable country data, not necessarily known to the
judicial decision-maker. 43
2.1.12 Furthermore, reliance on a source because it has an established reputation may notalways assist, eg, when two well-established sources adopt opposite or conflicting views or
where an eminent expert disputes for cogent reasons what is said in an established source.
2.1.13 For these reasons, although considering the reputation of a source may be justified
on pragmatic grounds, it is not itself a criterion going to the merits of the COI directly.
2.2

Is the COI based on publicly available and accessible sources?

2.2.1

The pioneering 1990 Evian Report identified as a basic criterion:“Public Material – the database would contain only public material, including nonconventional and unpublished material provided it is from a named and traceable source”.

2.2.2 This criterion remains of enduring importance.44 The Report closely related it to therequirement of access to databases containing only public material. Part of the thinking
behind the requirement that material be public is that it should be clear to the asylum-seeker
what evidence is available and where it can be found and that he should be able to make useof it in support of his asylum claim and/or appeal. This helps achieve an “equality of arms”
between the decision-maker and the claimant. A further factor here is user-friendliness:qualities such as appropriate formatting, divisions into appropriate headings and clear tablesof contents will assist here.
2.2.3 Obviously, there will from time to time be a need to consider confidential data, eg,
testimonies of human rights researchers in a country of origin who cannot disclose theirv INS, 128 F.3d 620 (7th Cir.1997).; Kasvari v INS, 400 F 2d 675, 677 n.1 (9th Cir 1968). In Gramatikov it was
said: “[T]here is perennial concern that the State Department softpedals human rights violations by countries
that the United States wants to have good relations with”. In a recent judgement of the ECtHR in Said v The
Netherlands (Application no. 2345/02) 5 July 2005, Judge Loucaides in a Separate Opinion disagreed with theopinion of the majority who had viewed the US State Department report as a reliable source of informationon the human rights situation in Eritrea: “They are not prepared by an independent and impartial institution
but by a purely political government agency, which promotes and expresses the foreign policy of the UnitedStates. Therefore, they cannot by definition be relied on as a neutral and impartial exposition of the facts
mentioned therein. There is always an element of suspicion that such Reports are influenced by political
expediency based on US foreign policy with reference to the situation in the country concerned and that they
serve a political agenda. …Therefore I do not see how any judgment of the European Court of Human Rights
can rely in any way or to any extent on any US Department of State Country Reports on Human Rights
Practices in respect of any country”. We are indebted for some of these references to the IAS publication,
Country guideline cases: benign and practical? Ed Colin Yeo, January 2005, Immigration Advisory Service(IAS) London.
43 Alice Edwards, op.cit: “It is also important to be aware of a judge`s or a jurisdiction`s own limitations in
knowing `the field` or knowing what organisations exist and the types of work they are doing. Sometimes
smaller or national organisations may not be known to the judge or decision-maker, but may be well-known
outside of judicial circles as having a very solid reputation”.
44 See the 2004 UNHCR COI Report and Elisa Mason, “Guide to Country Research for Refugee Status
Determination”, Jan 2002 LLRX.com/features/rsd2.htm.

43

identities directly without placing themselves at risk,45 reports whose authors are bound byprofessional ethics not to disclose the identity of a particular source. Whilst this may raisedifficulties about the accuracy of the informant’s material, the weight to be attached to theinformation may be greater if the reason for anonymity is explained or if it possible to assume
that the publisher of the report is an organisation of sufficient probity to ensure the source
will have been checked insofar as it is possible to do so. But, subject to exceptions of thiskind, COI may only be viewed as generally reliable if it is in the public domain and transparent
as to its authorship.
2.3

Has the COI been prepared on an empirical basis using sound methodology?

2.3.1 Just as judges are not country experts, neither are they social scientists.
Nevertheless, they will naturally attach more weight to sources that demonstrate intransparent fashion a sound empirical basis for their principal findings. There is a premiumon objectively verifiable facts. Sometimes even methods of obtaining statistical information
will need to be scrutinised. It will ordinarily be apt to ask of a document, two particularquestions, “How does the source know what it says it knows?” and “To what extent is it basedon opinion and to what extent is it based on observable or established facts”?
2.3.2 One aspect here is to what extent a source is based on reports from persons “on the
ground” in a particular country. One of the reasons why UNHCR Position Papers are often
accorded considerable weight is because it is known that in relation to many countries
UNHCR relies for its evaluation, not only on background sources, but also on reports fromUNHCR staff that are posted in the particular country concerned. 46
2.3.3 Credit is also seen to accrue to reports identifying in explicit fashion what their own
data-gathering methods and processes are. For example, the Preface to the US State
Department reports for 200447 stated that:48

45 Alice Edwards, op.cit: “…for security reasons and personal safety reasons of both the source and the [Amnesty
International] staff member, the sources relied upon in the report may not be named. AI is an organisation
dedicated to researching human rights violations, commonly involving governments that do not live up to
their international obligations. AI has a responsibility to its sources not to disclose their names whereappropriate, but this does not and should not detract from the truth or accuracy of the information containedin a given report”.
46 See 2004 UNHCR COI Report Annex 1: “Information systems within UNHCR para 4: UNHCR papers are a resultof a collaborative effort between the Regional Bureaux concerned and the Department of International
Protection (DIP). This means that as a rule information is not only corroborated but also incorporates
comments from experienced staff and up-to-date assessment directly from the field”. However, courts andtribunals have not always found it possible to accept the evaluation of risk categories contained in UNHCR
Position Papers: see below n.
47 These reports are prepared pursuant to ss.116 (d) and 502(b) of the Foreign Assistance Act of 1961 (FAA) as
amended and Section 504 of the Trade Act of 1974 as amended. This legislation requires the Secretary ofState to report to the Speaker of the House of Representatives and the Committee on Foreign Affairs of the
Senate.
48 Country Reports on Human Rights Practices 2003, US Department of State (25 February 2004) Preface. We
have taken this quotation from the IAS publication Country Guideline cases: benign and practical? Ed C Yeo,
January 2005, London.

44“Throughout the year, our embassies collect the data contained in it through their contacts
with human rights organisations, public advocates for victims, and others fighting for human
freedom in every country and every region in the world. Investigating and verifying theinformation requires additional contacts, particularly with governmental authorities. Suchinquiries reinforce the high priority we place on raising the profile of human rights in ourbilateral relationships and putting governments on notice that we take such matters seriously.
Compiling the data into a single, unified document allows us to gauge the progress that isbeing made. The public release of the Country Reports sharpens our ability to publicise
violations and advocate on behalf of victims. And submission of the reports to the Congress
caps our year-round sharing of information and collaboration on strategies and programs
remedy human rights abuses – and put us on the path to future progress.”

2.3.4 The wording of this Preface has been criticised for disclosing a US foreign policy bias49
and one can certainly see that it does contain several value-judgments. Equally, it does thisin a way which lays bare the principal focus of its concerns and it is arguable that transparent
statements of this kind permit the reader to take account of any bias that results. But itshould not be ruled out that in particular instances, despite reports being transparent in thisway, their stated agenda or value judgments may get in the way of objectivity, eg, by being
too heavily influenced by that country`s foreign policy concerns. In relation to US State
Department reports, for example, it could possibly be argued, especially in relation tocountries in which the US is presently involved in the internal affairs of a country (eg,Afghanistan, Iraq) that its reports lacked independence. Having said that, the clear primacythat the US State Department reports place on the monitoring and gauging of the humanrights performance of particular countries (by reference to international human rights
norms) may be thought to render such reports of particular assistance to judges. That is
because, by and large, judges determining whether a state of affairs is persecutory under the
Refugee Convention or contrary to international human rights guarantees, likewise seek tobase their decisions on internationally accepted standards as enshrined in public
international law. Much the same can be said of reports by international NGOs such as
Amnesty International which clearly pursue a number of political goals (eg, trying to shiftworld opinion against capital punishment) but which try, as far as possible, to assess country
conditions by reference to methods of analysis and evaluations based on international
human rights norms. 50
2.3.5 Another aspect has to do with methodology. It may not be easy to place great
reliance on a source which states, without giving any relevant background facts and figures,that there are “reports” or “incidents” or “cases” of detainees being tortured in custody.
49 See above, n.32.
50 Alice Edwards, op cit, stated that: “AI carries out on-site or field missions to many parts of the world, so themajority of the reports include first-hand knowledge and experience. AI spends considerable efforts inbuilding networks with regional, national, local and community organisations, professional bodies,
associations such as trade unions, academics, and individuals. Prime responsibility for global monitoring of
the human rights situation rests with the International Secretariat with offices in 10 countries (London, New
York, Geneva, Hong Kong, Kampala, Senegal, Moscow, Costa Rica, Beirut and Paris). AI also has national
representation through Amnesty International Sections/.structures in 75 countries... research reports areprepared according to internal research policy that endorses four main principles, namely: accuracy,
impartiality, respect for confidentiality and collaborative approaches”. Her report highlights, however, thatin certain instances the methodology used varies with the type of report and so the reader must check what
is said about methodology in the report in question: see p7.

45Obvious questions arise in respect of such statements. How many cases? In which prisons(all or just some)? Involving what type of prisoners (political/ordinary)? If a report gives
specific figures of persons reported to have suffered human rights abuses in detention, they
will generally carry more weight if they include relevant comparators: eg, what is the prison
population in the relevant country? If a report refers to certain human rights abuses being
widespread or routine or frequent, but elsewhere indicates small numbers of persons areaffected, that will tend to detract from the weight such evidence may be given. Questionsof scale and frequency can be vital in assessing risk. In the UK, for example, in Harari [2003]
EWCA Civ 807, the Court of Appeal held that, for prison conditions in general in a particularcountry to be considered as giving rise to a “real risk” of persecution or treatment contrary
to Art 3 of the ECHR, there has to be “a consistent pattern of gross, frequent or massviolations of fundamental human rights”.51 On the other hand, decision-makers must be
astute to real constraints that may affect data-gathering in certain countries, eg, theauthorities might deliberately prevent journalists or others from learning anything aboutcertain detention centres, or official statements may significantly downplay the real
numbers of detainees involved, etc.
2.3.6 The excellent reputation of particular sources (whether governmental, eg, the US
State Department Reports, or non-governmental, eg, Amnesty International and Human
Rights Watch) should not deter the decision-maker from scrutinising their methodology anddata-gathering research methods as much as that of any other source. Nor can it beautomatically assumed that because past reports from a particular body have normally beenof a high standard that the specific report before the judge measures up to the norm.
3.

Nature/Type of the Information

3.1

Does the COI exhibit impartiality and independence?

3.1.1 For credence to be placed on COI it is essential for the judicial decision-maker to besatisfied that it is not partisan or affected by bias. Although this is an elusive criterion to statewith any precision, it is clearly a very important one. It is elusive because of the recognition
that there is no such thing as “value-free” assessment of country conditions. Arguably every
report adopts a particular vantage point. As can be seen from their Preface, US State
Department reports are an example. However, it remains that perceptible bias orpartisanship or having an “axe to grind” may be seen as reducing the value of a particular
report.
3.1.2 To this end, judges need always to pose a number of critical questions of any source
so as to evaluate its purpose, scope and authority.52 It may add value to a report that it is
51 See further Batayav [2003] EWCA Civ 1489. The “consistent pattern…” terminology is borrowed from Article
3 of the 1983 UN Convention Against Torture.
52 These are similar to those used by bona fide researchers: see Eliza Mason, “Guide to Country Research for
Refugee Status Determination” op.cit. who at D suggests the following questions: “Who has produced theinformation and why? Answer this question by asking additional questions: “If it is an NGO, what is its
philosophy? If an international organisation, what is its mandate? If a newspaper, what are its politics? If a
government, what is its record in the area of human rights and the rule of law? If a report by a UN Rapporteur,
who wrote it and under what restrictions? How independent or impartial is the producer? Essentially46

known to emanate from an independent source, eg, a report prepared by a reputable
research body dedicated to compiling reliable data for use by international agencies.
3.1.3 Nevertheless judges should be cautious of being too judgmental about such matters.
For example, it may be that the only recognised country expert on a particular country is anémigré who has aligned himself (or herself) to a particular political group in exile. One of thereasons why he may have come to be regarded as an expert is that he has “frontline”, on–
the-ground knowledge of recent events. If a report from such a person nevertheless
exemplifies an objective and balanced treatment of relevant issues, it may be given as much
(if not sometimes more) weight as if it came from an academic body or source with noapparent political colouring.
3.1.4 In respect of reports from governmental agencies, or from joint government factfinding missions, it may be necessary to consider whether there is any governmental bias.
Factors of some importance are the extent to which the agency or agencies in question canbe said to be shielded from political pressures by having a separate budget coupled withadministrative independence from the decision-making authority53. A further safeguard may
be an independent monitoring body able to check on the quality and accuracy of ongoing
reports54.
3.1.5 The language and tone in which COI reports are written is also of some importance.
Reports which frequently resort to hyperbole or employ emotive terminology or whichcontain rhetorical and prejudicial phrases, risk not being taken seriously. 55
3.1.6 In respect of country experts it is important to establish what material has been
provided to that expert (other than that relating to the claimant’s individual history). Has
he/she referred to the most recent COI? If he/she takes a different view as to risk than thattaken by established sources such as UNHCR, what are the reasons for doing so? Has he/shetaken an empirical approach to the evidence? Do the facts he/she identifies logically support
the inferences he draws from them? Does he/she provide sources for his various statements?
“objectivity” can be established by learning something about the organisation itself, i.e. where its fundingcomes from, who makes the management decisions and does she have anything to gain or lose by theoutcome of a case etc?…”
53 See 2004 UNHCR COI Report para 49. The 1990 Evian report identified as a key criterion: “Control body –control over the content of the database should be left in the hands of a relatively independent centre witha professional information staff, responsive to the needs of the users”. In the UK the Advisory Panel on
Country Information (APCI) is an independent body established under the Nationality, Asylum andImmigration Act 2002, “to consider and make recommendations to the Secretary of State about the content
of country information”. For further background, see Andrew Jordan, paper for November 2005 IARLJ
Budapest Conference, “Country Information: The United Kingdom and the Search for Objectivity”.
54 On the UK experience, see paper for IARLJ November 2005 Budapest conference by Andrew Jordan, copy on
IARLJ website.
55 See Elisa Mason, “Guide to Country Research for Refugee Status Determination”, op cit para 41: “What is thetone of the report? What kind of language and definitions does it employ? Given the nature of the subjectmatter of many human rights reports, it is understandable that a bitter tone might resonate throughout the
text. However, reputable human rights organisations are normally careful about overstating a case, and willattempt to characterize abuses according to defined categories without resorting to superlatives and angry
verbiage”.

47

Is he/she bringing direct knowledge of relevant political events or political actors to bear or
simply relying on (and making inferences from) very much the same body of evidence which
is before the judicial decision maker? Has he/she noted evidence or opinions which arecontrary to his/hers? What are his/her credentials?
3.1.7 Judicial experience of country expert reports may count for a lot here. For example if
judicial decision-makers see over time that a particular expert constantly seeks to paint aworse (sometimes rosier) picture than do other recognised sources, this may lead to aconclusion that the expert has lost the right to be considered impartial and has become an
advocate. As was said by Collins J in the UK Tribunal case of Slimani:56“In all cases, we have to distil the facts from the various reports and documents. Bodies
responsible for producing reports may have their own agenda and sources are not always
reliable. People will sometimes believe what they want to believe and, aware of that, thosewith axes to grind may feed willing recipients. Many reports do their best to be objective.
Often and inevitably they will recount what is said to have happened to individuals. They will
select the incidents they wish to highlight. Such incidents may be wholly accurately reported,
but not always. This means that there will almost always be differences of emphasis in various
reports and sometimes contradictions. It is always helpful to know what sources have been
used, but that may be impossible since, for obvious reasons, sources are frequently anxious
not to be identified. We are well aware of criticisms that can be and have been levelled at some
reports and are able to evaluate all the material which is put before us in this way”.

3.1.8 It is particularly important to assess the impartiality of so called “expert witnesses”.
If their evidence is sound academically, demonstrably objective and the expert is not acting
as an advocate for the applicant’s case, strong weight can, and should rightly, often be given
to such reports. 57
3.1.9 Such country experts are not usually legally trained. Nor can they be expected to havea firm understanding of the skills or concepts judicial decision-makers have to deploy when
making a credibility assessment. They may not even know that their reports will end up
being used in a judicial process. Matters relating to standards and burdens of proof must be
matters for the judge. Consequently what country experts describe as a serious risk or
danger cannot be taken as determinative of that question. This does not mean their reports
are to be given no weight, or to be treated as devalued or irrelevant simply because they areunaware of the precise legal criteria.
3.1.10 Even when country expert reports fail to exhibit all the characteristics of a goodreport, and so only limited weight can be attached to them, that does not necessarily mean
they are to be entirely discarded. Such “expert” reports are still part of the totality of theapplicant’s case which the judge has to evaluate and then apply the correct legal principles
to before reaching his own conclusions.

56 SSHD v S (01/TH/00632) 1 May 2001, para 19.
57 See Report from Expert Evidence Working Party, paper by John Barnes, in The Asylum Process and the Ruleof Law, IARLJ Netherlands, 2006 (Manak Publications) pp263-293.

48

3.1.11 The independence of experts must also be considered. It may be relevant in certain
cases, for example, to consider whether an expert who derives a significant level of income
from preparing country reports for claimants can be regarded as independent.
3.2
Is the COI balanced and not overly selective?
3.2.1 Closely allied to the impartiality and independence criteria is that of non-selectivity.58
The judicial decision-maker expects a report to present a balanced account noting items ofevidence that go one way and the other.59 COI which was found for example to ignore
consistently or overlook reports of acts of impunity by police and security forces would be
deeply suspect. Conversely, a report which highlighted human rights abuses exclusively,
without noting evident and significant improvements in a government’s human rights
record, would be received with scepticism. What judges want to learn is the real picture.
However, a report is not necessarily lacking in balance simply because it comes down on one
side of the argument about conditions in a particular country: the balancing required here is
only to take account of all relevant considerations for and against.
4.

Prior Judicial Scrutiny

4.1

Has there been judicial scrutiny by other national courts of the COI in question?

4.1.1 It is widely recognised by those involved in data-gathering that sources should covercase law emanating from different courts and tribunals.60 That is a valid requirement for atleast two reasons. A judge`s decision on a case may sometimes necessitate a forensic
analysis of, and conclusions about, conflicting sources of evidence. Such analyses andconclusions may be of value to all. Second, much of the skill of judicial decision-makers indealing with COI consists in correlating what it says about risk and dangers for particular
categories with the legal concepts arising in the Refugee Convention and human rights
treaties. For example, a country report or expert may state that the risk for a particular
category is “serious” or “real”. But whether such assertions are accepted as demonstratinga “well-founded fear of being persecuted” under Art 1A(2) of the Refugee Convention is amatter for judges to decide in particular cases. Thus the decision-maker may have before
him/her a UNHCR Position Paper which frames its evaluation of risk categories more broadly
than is justified under the terms of the Refugee Convention (or even under international
human rights law). It may for example base itself on a concept of international protection

58 Meaning here failure to mention all relevant facts.
59 See 2004 UNHCR Report on COI para 5: “By comparing and contrasting information from a variety of different
sources, decision-makers are assisted in forming an unbiased picture of prevailing conditions in countries ofconcern”.
60 Elisa Mason, “Guide to Country Research for Refugee Status Determination” op cit p2: “Typical categories ofsources include international instruments… national legislation in the country of origin… case law (decisions
from administrative and judicial bodies which granted asylum or other forms of protection to an individualwith a claim similar to the one you are researching)… guidelines… etc issued by UNHCR and otherinternational bodies as well as governmental agencies…human rights reports… news reports and newswire
services…background materials… experts”.

49

which embraces, for example, humanitarian categories such as persons fleeing from theordinary incidents of civil war or famine. 61
4.1.2 For this reason judicial decision-makers benefit from sight of decisions reached indifferent countries. They should thus be aware that just as refugee law judges pursue a single
universal or autonomous meaning of key concepts under the Refugee Convention, so theyshould strive to reach common views on the same or broadly similar country data.
4.1.3 We would accept, however, that reliance should only be placed on decisions fromjudges in other countries in limited circumstances and subject to careful review. There anumber of reasons for this. Country conditions are mutable and in any event the primary61

See the UK case of NM (Lone women-Ashraf) CG Somalia [2005] UKIAT 00076 and its comment as follows:“This is illustrated by UNHCR position papers, such as the January 2004 one dealing with
Somalia. In Somalia UNHCR has responsibility for voluntary repatriation programmes, currently
confined to northern Somalia, and has evident consequential concerns referred to in paragraph
3 of this report about "over-stretched absorption capacity" even in the relatively stable northernpart of Somalia. Reasons of this kind lead UNHCR to discourage signatory states from goingahead with enforced returns of rejected asylum seekers. However, the only issue arising on
statutory appeals on asylum or asylum-related grounds before Adjudicators and the Tribunal iswhether the claimant is a refugee and if so, whether to return a person to Somalia would breachthe Geneva Convention or constitute treatment contrary to Article 3 ECHR or any other Article,
where engaged. The question of absorption problems that might flow from any United
Kingdom government decision to enforce returns in numbers is not of itself the basis for showingthat return would breach either Convention”.
The Tribunal went on to say:“111.

The UNHCR, in such circumstances and they arise very frequently, is pursuing what it sees as its
wider remit in respect of humanitarian and related practical considerations for the return of people,
particularly on a large scale. This is a common problem where the country of refuge borders the countryof past persecution or strife. What it has to say about the practical problems on the ground will be
important where it has staff on the ground or familiar with the conditions which a returnee would face.
112.
But the assessment of whether someone can be returned in those circumstances is one which
has to be treated with real care, if it is sought to apply it to non-Refugee Convention international
obligations, especially ECHR. The measure which the UNHCR uses is unclear; indeed, realistically, it may
be using no particular measure. Instead, it is using its own language to convey its own sense of the severityof the problem, the degree of risk faced and the quality of the evidence which it has to underpin its
assessment. It is often guarded and cautious rather than assertive because of the frailties of its knowledge
and the variability of the circumstances.
113.
This is not to advocate an unduly nuanced reading of its material, let alone an unduly legalistic
reading. It is to require that the material be read for what it actually conveys about the level of risk, of what
treatment and of what severity and with what certainty as to the available evidence. But there may betimes when a lack of information or evidence permits or requires inferences to be drawn as to its
significance, which is for the decision-maker to draw. There is often other relevant material as well.
114.
UNHCR’s language is not framed by reference to the ECHR and to the high threshold of Article 3
as elaborated in the jurisprudence of the Strasbourg Court and of the United Kingdom. That is not a
criticism – it is not an expert legal adviser to the United Kingdom courts and couches its papers in its own
language. So its more general humanitarian assessments of international protection needs should to beread with care, so as to avoid giving them an authority in relation to the United Kingdom's obligations
under the ECHR which they do not claim. They may give part of the picture, but the language and thresholdof their assessments show that the UNHCR quite often adopts a standard which is not that of the United
Kingdom's ECHR obligations.”

50

focus must always be on the individual claimant’s particular circumstances. It will sometimes
be difficult to know the status of a decision from another jurisdiction (whether, for example,
there has been a further appeal reversing the case). It may be unclear whether the court oftribunal in question has employed different standards of proof or different legal principles.
However, at least within the EU, this difficulty will greatly reduce as a result of the partial
harmonisation of standards brought into effect by the Refugee Qualification Directive as
from 9 October 2006.
4.1.4 A further difficulty is that, as the theme of our paper highlights, we are a long way
away from a stage where we can be confident that judges always have available to them, at
the time of decision making, COI meeting all of the standards we have identified.
4.1.5 Country Guidance (CG) cases: Perhaps one of the most interesting and usefuldevelopments over the past 10 years, since the substance of this paper was initially prepared,
has been the now very extensive set of CG decisions prepared by the UK Upper Tribunal(Immigration and Asylum Chamber) - UKIAC. The unique need for these non-binding, but
strongly persuasive, decisions arose through the sheer volume of cases before the UK
Asylum and Immigration tribunals and the first instance UK Border Agency and the need todevelop consistency and efficiency in the processing of the tens of thousands of cases. These
CG cases are usually extensive and thorough investigations on a very wide range of relevant
and often reoccurring country specific issues. The approach taken by the UKIAC in the CG
system has been recognised and approved, particularly its usefulness and non-binding
guidance in high volume jurisdictions, by not only the highest courts in UK but also by theEuropean Court of Human Rights (Strasbourg).62 Whilst the CG system was designed for UK
use of course, these cases are now a rich source of relevant, detailed, well analysed, nonbinding COI and are available to judges and decision makers all around the world.63
5.

Conclusion

5.1
The above Checklist is product of considerable discussion and exchange, involving
judges as well as those active in the refugee law and policy field. Whilst it seeks to reflect theviews of judges generally – ie, to furnish a specifically judicial perspective – it must not bethought that it necessarily achieves that; it is only a work in progress. The COI-CG Working
Party of the IARLJ will endeavour to keep them under review and post revised versions on
the IARLJ website, taking into account the latest developments.
Further reading:

62
63



LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 and TK(Tamils - LP Updated) Sri Lanka CG [2009] UKAIT 00049.

NA v UK, Application No. 25904/07 (6 August 2008)



CG decisions of the UK Upper Tribunal, at http://www.bailii.org/uk/cases/UKUT/IAC/

See ECHR decision in NA v UK Application No. 25904/07 (6 August 2008).
See “Further reading “suggestions.

51



Decisions of the New Zealand Immigration and Protection Tribunal, in a searchable
database at www.justice.govt.nz, with cases having high levels of COI noted.