Evidence Assessment in Refugee Law with Stories and Arguments
F.J. Bex1 & V.M. Bex-Reimert2
Department of Information and Computing Sciences, Utrecht University, theNetherlands
2
Department of Constitutional Law, Administrative Law and Public Administration,
University of Groningen, The Netherlands
1

Abstract: In this article, we aim analyse whether a systematic method for reasoning with evidence in legal
cases – the hybrid theory of stories and arguments – can be applied to a novel legal domain, namely
European asylum law. This analysis serves as a case study for testing the applicability of the hybrid theory
outside of the context of criminal law. Furthermore, the analysis will provide insights on how the hybrid
theory can be used to improve the normative framework for evidence assessment in asylum cases.
Keywords: evidence, argumentation, asylum cases

1. Introduction
Argumentation in legal cases is as much concerned with the common sense reasoning
about evidence and facts in a case as it is with legal reasoning about rules and precedents.
One of the aims of the study of so-called rational proof is to provide a rational,
systematic method for reasoning with evidence in a legal context. More specifically, we
are looking for a normative theory that tells us how to rationally reason with evidence
whilst respecting the relevant practical and legal constraints.
In the literature, there are three important approaches to rational proof: arguments,
statistics and narratives. Two of these, arguments and narratives, have been combined in
the hybrid theory (Bex 2011, Bex and Verheij 2012, 2013). According to the hybrid
theory, reasoning with evidence involves constructing narratives, or scenarios, about“what happened” in a case, which is arguably easiest from a cognitive point of view
(Pennington and Hastie 1993, Wagenaar et al. 1993). The hybrid theory further allows forthe critical analysis of scenarios using arguments, and it gives critical questions that point
to common counterarguments (Bex and Verheij 2012). Many of these critical questions
are based on common mistakes people make when reasoning about, for example, humanmemory (Wagenaar et al. 1993). Thus, the hybrid theory takes ideas from psychology on
how people reason with evidence and puts them into a normative framework ofstructured, dialectical argumentation (Anderson et al. 2005; Bex 2011).
Various researchers have investigated the connection between theories of rational
proof and the law, putting legal concepts such as relevance (Anderson et al.; 2005; Bex
and Verheij 2013), burdens and standards of proof (Prakken and Sartor 2011; Bex andWalton 2012) and the presumption of innocence (Godden and Walton 2007) in an
epistemological framework. Most of this existing research on combining evidential
reasoning with legal reasoning focuses on criminal law and its related concepts. An
important question that hence remains is whether and how the hybrid theory can beapplied to other legal domains in which reasoning with evidence plays an important part.
One legal domain in which decision makers have to deal with complex questions
regarding evidence is refugee law. In 2014 more than 600.000 people applied for asylum

in Europe1. In most of these cases, there is very little evidence to corroborate the story ofan asylum seeker and their claims about, for example, their identity and the situation in
their country of origin. Decision makers have access to general information about thesituation in the country of origin, but this is not always complete or trustworthy,
especially for countries with totalitarian regimes or in the midst of a war, which meansthat finding “the truth” is not feasible in many cases. Furthermore, an asylum decision is
ultimately not based on the applicant’s story of past events but on the assessment of
future risk that the applicant would face if returned to the country of origin. All thesefactors lead to an evidence assessment process and evidence assessment criteria which
are quite different from those in criminal law.
With respect to so-called “credibility assessment” in asylum cases – where
credibility stands for both the credibility of the refugee as a person and the credibility of
the facts and other evidence presented – a number of documents have been drafted byorganizations such as the European Asylum Support Office (EASO 2015), the International Association of Refugee Law Judges (IARLJ 2013) and the Dutch Immigration
Office (IND 2014). Some of these have a formal status as soft law (e.g. IND 2014),
meaning that whilst they do not have the binding force of traditional law, they are
accepted as a part of the legal system and decision makers have to abide by them. Others(e.g. EASO 2015, IARLJ 2013) are purely informative, providing guidelines tointerpretation and practical application of the law. All of them, however, provide anormative framework for how decision makers should reason in asylum cases.
The main aim of this paper is to explore the relations between current guidelines for
credibility assessment and the hybrid theory. We will focus on the EASO (2015) guidelines or evidence assessment, and the IARLJ (2013) report containing judicial criteria andstandards for the assessment of credibility. Our main question is then: which concepts
and requirements do these guidelines use, and can they be captured in the hybrid theory?
A secondary question is whether the hybrid theory can be used to clarify or add to theguidelines as presented by EASO and IARLJ.
2. The hybrid theory of stories and arguments
2.1 Arguments
The argumentative approach to evidential reasoning has its roots in Wigmore’s charting
method (Wigmore 1937), a more modernised version of which was presented byAnderson and colleagues (2005), which was in turn captured as logical defeasible
arguments (see e.g. chapter 3 of Bex 2011). Arguments are often based on evidence, suchas witness statements made in court, forensic expert reports handed to the jury and so on.
Given this evidence, we can make consecutive inferences, thus reasoning towards thefactual claims in a case. Figure 1 presents an argument in which evidence, namely claims
by a refugee, Adnan, and Country of Origin Information (COI) is used to infer that Adnan
faced a risk of serious harm had he stayed in Aleppo (Syria).
As in logic, the inferences in arguments are based on (defeasible) inference rules.
Such inference rules represent stereotypical patterns of human reasoning – in essence,
they are based on our knowledge of the world. For example, in general we believe awitness who testifies about something they are in a position to know about. So, for1

http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics

example, we can say that the general rule “If a witness says p then p is true” can be used
to infer conclusions from witness statements, as in Figure 1. In addition to commonsense
reasoning, we can also capture other forms of reasoning using inference rules, such asreasoning with legal rules or reasoning about the legal interpretation or qualification offacts (Bex and Verheij 2013). For example, in the case of Adnan we could say that thefacts allow us to infer that there was a serious threat to Adnan’s life (Figure 1) by using
the rule “If someone lives on the front line of a civil war and their house is hit bygrenades, then this counts as a serious threat to their lives”. Article 15 of the EU
Qualification Directive, which says that “serious harm consists of a serious […] threat toa civilian’s life due to indiscriminate violence in situations of internal armed conflict”,
then allows us to infer the final conclusion about the risks Adnan faced.
Adnan	
  faced	  a	
  real	
  risk	  of	
  serious	
  
harm	
  in	
  SyriaEU	
  Qualification	
  directive	  article	  15

legal	
  conclusions

There	  was	  a	
  serious	
  threat	  to	
  Adnan’s	
  life	  due	  to	
  indiscriminate	
  violence	
  in	
  a	
  situation	
  of	
  internal	
  armed	  conflict
qualification	
  stepfacts

Government	
  and	
  rebel	
  forces	
  fought	
  in	
  Aleppo

Adnan	
  lived	  in	
  Aleppowitness	
  evidence

evidence

Adnan	
  claims	  he	
  lived	  in	
  Aleppo

documentary	  evidence

COI	
  information	
  on	
  Aleppo

Adnan’s	
  house	  was	
  
hit	
  by	
  grenades	
  witness	
  evidence

Adnan	
  claims	
  his	
  house	  was	
  hit	  by	
  grenades

Figure 1: Argument based on evidence

An important feature of argumentation is that it is adversarial: not only arguments infavour of a particular conclusion have to be considered, but also possible counterarguments that attack these arguments. If we consider inferences as stereotypical patternsof reasoning, then we can provide some typical sources of doubt for each type of
inference. For example, a witness argument generalization can be attacked by arguments
questioning the person’s truthfulness, or their observational abilities. If, for example,
Adnan cannot answer basic questions about Aleppo, we can say that Adnan might belying about his hometown and thus counter the witness inference in Figure 1. Here it is
not the premise or conclusion that is denied, but rather the inference from the premise to
the conclusion. Another possible way of attacking an argument is to argue for the
opposite conclusion. For example, an argument for “Adnan did not live in Aleppo”
attacks the conclusion that “Adnan lived in Aleppo” in Figure 1.
It is understood that conclusions that are at one point accepted can be rejected at alater stage. So, even though given the argument in Figure 1 we might say Adnan can begiven a residence permit, if we subsequently find counterevidence (e.g. evidence for thefact that Adnan is not from Syria or for the fact that Adnan is lying), we may reject theconclusion about Adnan’s nationality and hence the final conclusion about the residence
permit. Given a complete set of arguments and their mutual attack relations, it is possibleto determine the conclusions that follow from this set of arguments using any of theformal argumentation semantics that have been proposed by Dung (1995).
2.2 Stories
The story-based or narrative approach to evidential reasoning stems from legal
psychology (Pennington and Hastie, 1993; Wagenaar et al., 1993), and it has only
relatively recently been further specified (Bex, 2011; Bex et al., 2010). This approach
focuses on stories about what happened in a case that explain the evidence. Such a story
is defined as a coherent sequence of events connected by (often implicit) causal relations.
For example, Adnan might tell the following simple story “I lived in Aleppo, Syria, when
government and rebel forces started fighting. My neighbourhood was really on the front
lines, and my house was hit by grenades. I feared for my life so I fled the city”. Causal
relations between the events can be made explicit: for example, we can say that ‘the factthat Adnan’s house was hit by grenades caused Adnan to flee the city’.
In much of the more formal work on stories and scenarios, such explicit causal rules
play a large role: often stories are represented as fully connected causal networks (see e.g.
chapter 3 of Bex 2011). In contrast, a more holistic perspective on story coherence isprovided by story schemes, abstract scenarios that act as a scheme for specific stories(Schank 1986, Bex 2011). Such story schemes consist of generalized events or event
types, abstract renditions of how things generally happen in the world. For example,
Pennington and Hastie’s story scheme for intentional actions gives some initial states ofaffairs, which together with a motive may lead to an action with certain consequences(Pennington and Hastie 1993). A more specific scheme is concerned with, for example,
fleeing from Syria to Europe, viz.
Person p lives in Syria – p fears for his life in the civil war – p flees to Turkey – p takes aboat to Greece – p travels via the Balkans to Austria – p takes a train to the Netherlands
Such story schemes often follow from general knowledge: we know that people usually
have motives for their actions, and in 2015, of the many refugees coming to Europe in2015 tell us that the route via Greece and the Balkans is a standard route.
Like the argumentative approach, the scenario approach has an adversarial element:
different stories should be constructed that fit the evidence and these stories should becompared. For example, a witness might tell the alternative story that Adnan is not reallyfrom Aleppo but that he is in fact a Jihadist who was trained in Syria to commit a terrorist
attack in Europe. Pennington and Hastie (1993) provide several criteria for judging
stories. The most important ones are evidential coverage (how much and which evidence
is explained by a story?), completeness (does a story have all the elements of the story
scheme for intentional actions?) and plausibility (does the story fit with our ideas about
how things happen in the world?). Note that both completeness and plausibility are about
the quality of the story itself, irrespective of the evidence: a story can be very plausible
and complete but not be backed by any evidence (cf. the risk of choosing a “good story”
over a “true story”, Anderson et al., 2005). Novels of fiction, for example, can presentvery plausible stories for which there is no evidence; the same goes for our example, inwhich a quite plausible story about Adnan is presented, but, this being an example case,there is no real evidence for this particular story.

2.3 Connecting arguments and scenarios: a hybrid theory
One perspective on reasoning with evidence is provided by a combination of stories andarguments, and hence Bex and colleagues (Bex et al. 2010; Bex, 2011) propose a hybrid
theory of arguments and stories. In the hybrid theory, stories can be used to provide
natural explanations of “what happened” in a case, and arguments can be used to discuss
whether a story conforms to the evidence and whether a story is plausible. As an
example, consider Figure 2, in which arguments are used to support and attack Adnan’s
story. In this figure, there are three types of arrows. The arrows with a closed head
represent, like in Figure 1, inferences based on evidence. Note how the evidence can
support a single conclusion, but also the story as-a-whole: Adnan’s testimony, forexample, contained his whole story. The arrows with an open head are explicit causal
links, which were mentioned by Adnan in his story. Finally, the arrows with a cross as ahead are attack relations, representing counterarguments to the story.
Adnan’s	
  story

Adnan	
  lived	  in	
  AleppoAdnan	  is	
  from	  Syria

Government	
  and	
  rebel	
  forces	
  fought	
  in	
  Aleppo

causesAdnan’s	
  house	  was	
  
hit	
  by	
  grenades	
  causesAdnan	
  fled	  the	
  cityattacks

Adnan	
  did	  not	
  	
  
live	
  in	
  Aleppo
evidence	
  for	
  evidence	
  for	
  Adnan’s	
  passport

evidence	
  for	  COI	
  documents	
  on	
  Aleppo

evidence	
  for	
  Adnan’s	
  testimony

Witness	  A	
  testimony

Figure 2: Adnan's story, supported and attacked by arguments

Once one or more stories have been constructed, their quality has to be judged. Thus, it
can be assessed whether one story is better than another, or whether a story meets a
certain standard of proof (Bex and Walton 2012). There are a number of criteria that canbe used to judge a story’s quality. Perhaps the most important one is evidential coverage,
the amount of evidence in a case that supports a story. For example, our story in Figure 2
has an evidential coverage of three: Adnan’s story is supported by his testimony, his
passport and the COI (Country of Origin Information) documents. Related to evidential
coverage is evidential contradiction, which is the number of arguments based onevidence that contradict a story. For our example story, this would be one: witness A’stestimony is the basis of an argument that contradicts the story. Note that the two
evidential criteria do not give an absolute measure of how good or strong a scenario is,but rather provide relative measures to compare scenarios and guide the search for further
evidence; if a plausible story has low evidential coverage it might make sense to searchfor evidence that supports the story. Note that only arguments that have not been attacked
themselves count towards the evidential coverage and contradiction. If, for example, wehave an expert testimony that Adnan’s passport is a forgery, we can attack the argumentin Figure 2 from “Adnan’s passport” to “Adnan is from Syria” – in other words, theexistence of this passport is not evidence for the fact that Adnan is from Syria. This
would thus lessen the evidential coverage from three to two.
Another way to compare stories is by looking at their coherence irrespective of theevidence in a case. In other words, is the story coherent given our general knowledge

about the world? With respect to coherence, there are three central concepts:
completeness, plausibility and consistency. Completeness, which was already mentioned
above, is about whether a story has all its parts. Here, story schemes play an importantpart, as we have to look whether a story fits a particular scheme such as, for example, theintentional action scheme. Is there a motive? Does the story mention the relevant
consequences of the central actions and the causal relations between the actions andconsequences? For example, if in Adnan’s story he says that he fled the city but makes nomention of what happened afterwards, that is, the consequences and story of his flight, wemight say the story is incomplete.
The consistency of a story is about whether one part of the story contradicts anotherpart. For example, if Adnan at one point claims he was in Aleppo on the 11th ofDecember and later on in his story says he was in Istanbul on the 11th of December, thestory as a whole is clearly inconsistent. The final criteria for story coherence, plausibility,
concerns the number of arguments that are based on general knowledge that support or
attack a story. The idea behind this is that explicit arguments that demonstrate why wethink something is plausible or implausible, help us to ultimately determine whether astory is plausible. This is similar to Wagenaar and colleagues’ (1993) anchoring process,in which the assumptions in a story are made ever more explicit until the point that one
cannot sensibly deny them. As an example, say that an Abu Dhabi airport stamp is foundin Adnan’s passport, dated somewhere between when Adnan fled Aleppo and when hearrived in Europe. As an explanation of this stamp, Adnan tells the following story:“After I fled Aleppo I went to Istanbul. I wanted to take a plane to Amsterdam, but I
boarded the wrong plane and ended up in Abu Dhabi, where they stamped my passport. I
flew back to Turkey, from where I took a boat to Greece with some other refugees”.
Now, one argument based in general knowledge that could be brought against theplausibility of this story is that “It is implausible that Adnan first tried to take a plane to
Amsterdam and then took a boat to Greece, because it is general knowledge that refugees
usually do not change their route and mode of transport during their journey”, bringing
the plausibility of the story to minus one. However, this argument can be countered bysaying that “it is not general knowledge that refugees do not change their route and modeof transport during their journey – in fact, changing circumstances and available
resources often require refugees to make on-the-fly changes of plan”, bringing theplausibility back to zero. A stronger argument to lower the plausibility of Adnan’s storyis that “It is implausible that Adnan took the wrong plane in Istanbul, as it is generalknowledge that people usually do not take the wrong plane on a big airfield like Istanbul”– this can be based on general knowledge of boarding pass checks at airfields.
2.4 The Hybrid Theory as a Method for Legal Argumentation
The hybrid theory combines different insights from argumentation theory, legal
psychology, legal philosophy, law and artificial intelligence. The theory has a clear
normative aim (cf. Bex 2011, Verheij et al. 2016), in that it tells us how we should reason
with evidence. The hybrid theory provides a by providing a “logic of evidence and proof”
based on stories and arguments. Such a logic can be used to, for example, find out which
scenario is of the best quality, or which arguments are acceptable given the evidence, thus
telling us why a particular story is bad. However, the basic hybrid theory does not tell us
explicitly how we should reason in order to come to a good story. This implicit

procedural character of the hybrid theory was made more clear in Bex and Verheij(2012), in which six critical questions based on the hybrid theory were proposed.
(1) Are the facts of the case made sufficiently explicit in a good story?
(2) Is the story sufficiently supported by evidence?
(3) Is the support that the evidence gives to the story sufficiently relevant and strong?
(4) Has the story itself been sufficiently critically assessed?
(5) Have alternative stories been sufficiently taken into account?
(6) Have all opposing reasons been weighed?
The first question ensures that there is a complete and coherent story. Question 2
concerns the evidential coverage of the story. Question 3 is about the inferences from theevidence to the facts in the story: are they correct? Have they been called into question?
Question 4 concerns the evidential contradiction and the plausibility of the story, that is,whether any counterarguments based on evidence or general knowledge have been
considered. Question 5 is important: it negates the risk of confirmation bias or “tunnel
vision”, where one story is taken as the main hypothesis and possible alternatives are notconsidered or set aside without due consideration. Finally, question 6 concerns theacceptability of the arguments and stories in the case: which choices and decisions do we
make? If, for example, we have two arguments for opposing conclusions, in the end wehave to choose which conclusion we accept given all the information we have. Similarly,
if we have two alternative stories, we have to choose one on which to base our decision.
Apart from the critical questions about the case as a whole, we can also ask criticalquestions for individual arguments. Walton and colleagues (2008) have defined a large
set of argumentation schemes and critical questions, many of which can be associatedwith specific types of evidence. For example, a witness’ truthfulness (“Is there a reason tobelieve the person is lying?”) or observational abilities (“Could the witness have seen theevent from where they were standing?”) can be questioned. Similar questions are possible
for other types of evidence, such as documents (“Is there a reason to believe thedocuments are forged?”) or expert testimonies (“Is the expert really an expert in the field
he is testifying about?”). Another type of critical question, introduced in (Bex and Verheij
2012), concerns critical questions for stories or, more specifically, for story schemes. For
example, given the basic story scheme for intentional actions, we can ask “Is the motive acredible motive for the actions?”.
The idea of critical questions makes sense in a dialectical setting, where there are
multiple parties that engage in a dialogue. Bex and Prakken (2008) have proposed rules
for a dialectical dialogue in the hybrid theory, in which dialogue, participants can each
propose a story and critically assess these stories by proposing pro- and counterarguments
to these stories. Some of the rules in a dialogue concern the burden of proof (Bex andWalton 2012, Prakken and Sartor 2011). One such burden is the burden of persuasion,
which is set for the entire case and determines which party has to prove their story
according to some standard of proof. For example, in a criminal trial the burden of
persuasion lies on the prosecution, as they have to prove the story that shows thedefendant’s guilt beyond a reasonable doubt. The defendant – in theory at least – does
not have to present or prove a story, but only has to cast enough doubt on theprosecution’s story. Related to the burden of persuasion is the tactical burden of proof: if
we would decide in the case now, what would the decision be? In other words, given thestories and arguments we currently have, who would “lose” the case – this party has thetactical burden of proof. The final type of burden is called the burden of production. Thisburden, which may shift during a case, specifies which party has to offer an argument
based on evidence on some specific issue during the trial.
3. Assessing credibility in Refugee and Asylum Law
Refugee law is a relatively young field of law, and legal definitions are often not as
precise and worked-out as in, for example, criminal law. Furthermore, because of theinternational nature of the field, there is no single supervising judicial organ that decides
on matters of interpretation; this is left up to countries’ individual legal systems. These
aspects reflect on credibility assessment in asylum cases, as there is no clear tradition ofevidence theory like in criminal law (cf. Wigmore 1931, Anderson et al. 2005).
Credibility assessment has been discussed, though often quite summarily, by researchers
in the field of refugee and asylum law (e.g. Noll 2005, Staffans 2012, Hathaway andFoster 2014). However, often no explicit reference is made to theories of rational proof.
As Noll (2005, pp. 6) says: “evidentiary theorists have typically drawn on criminal law orother areas within the domestic domain, which begs the question to what extent thesefinding can be transposed to the atypical setting of asylum law”.
Outside of academia reports and guides on the process of credibility assessment havebeen drafted by organizations such as the European Asylum Support Office (EASO 2015)
and the International Association of Refugee Law Judges (IARLJ 2013). Both documents
place great emphasis on a so-called structured approach, reflected in checklists, summary
charts and lists of criteria based on which an asserted fact can be accepted or rejected(EASO guide) or the credibility of a claimant can be determined (IARLJ). However, no
explicit reference is made to theories of rational proof. Furthermore, while the guides use
familiar concepts – for example the IARLJ argues that the refugee’s story should be
coherent and plausible – these concepts are only explained summarily and not put into acomprehensive framework for rational legal proof.
In this section, we want to give an overview of how credibility is assessed in asylum
claims, and how this related to the hybrid theory. In other words, how do decision makers
reason in asylum cases, and can this be captured with the hybrid theory? We do this byfollowing the process of credibility assessment as set out in the EASO guide: (i)determine the material facts (ii) collect evidence (iii) assess credibility (iv) apply the“benefit of the doubt” principle and perform a risk assessment.
3.1. Determining the material facts
The first stage of the assessment process according to the EASO guide is the gathering of
information, which starts with the identification of the material facts, that is, those facts
that can be directly linked to the definition of a refugee or to the definition of a person
eligible for subsidiary protection. (EASO 2015; IARLJ 2013; Hathaway and Foster2014). The 1951 Geneva Convention (Article 1.A.2) states that a refugee is someone who
has a well-founded fear of being persecuted for reasons of race, religion, nationality,
social group or political opinion, and is outside their country of nationality or former
habitual residence and unable or unwilling to avail himself of the protection of thatcountry. In cases where someone does not qualify as a refugee, the European
Qualification Directive (Article 2.f, Article 15) states that they may still be subject tosubsidiary protection when the person would face a real risk of suffering serious harmwhen returned to their country of origin because of, for instance, a civil war.
The question is then how to identify the material facts. In practice, a decision makeris almost always initially faced with the story of the person who applies for asylum: whoare they, where are they from and why do they seek asylum? The EASO guide argues that
only the facts of the story that can be linked to the definition are material facts – exactly
how this “linking” should be done is left implicit. Anderson et al. (2005) treat linking as aquestion of relevance, that is, which facts of the story are directly relevant for ultimately
inferring an element of a legal definition? Take, for example, the argument in Figure 1.
Notice how, at the level of “facts”, we have many elements of Adnan’s story from Figure
2. Thus, we can reason from the refugee’s story to the elements of the legal definition in
the same way that we reason from intermediate, “factual” claims to legal conclusions.
Note that in the argument in Figure 1, a conclusion is drawn about whether Adnan
faced a risk in the past. Any future risk, which is necessary for the correct legal definitionof subsidiary protection, will be assessed in a later step (see section 5.4).
3.2 Collecting evidence and the burden of proof
Once the material facts have been determined, the evidence can be gathered. The burdenof persuasion lies with the applicant, who has to present and prove a story relevant to thematerial facts, that is, how and why they fled their country of origin. The applicant also
has to support their story with sufficient evidence, or at least have made a genuine effort
to provide this evidence. Furthermore, the evidence should be presented as soon as
possible, and explanations should be given in case the applicant is unable to support partsof their story with evidence. In terms of the hybrid theory, this means that the applicant
has the initial burden of production. The decision maker, however, also has a so-called
duty of investigation. This means that they also have a burden of producing the relevant
country of origin information (COI) and evidence that cannot be expected to be given by
the applicant, such as DNA-tests or language reports (Staffans 2012, IARLJ 2013).
Gathering evidence can be challenging in asylum cases. Very often, not much morethan the testimonies from the applicant are available, which are further complicated bymulti-lingual communication involving interpreters. Furthermore, applicants may be
traumatized and in most cases a significant amount of time has elapsed between theevents that caused the applicant to seek refuge and the actual assessment of the case. If
documents are available, their authenticity has to be assessed, but the authorities of thecountry of origin cannot be involved, since they are possible persecutors. The question
here is whether the existing argumentation schemes (Walton et al. 2008) suffice. The
EASO evidence and interview guides (EASO 2014, 2015) provide explicit guidelines forassessing documents, COI and applicant stories, which can be recast as critical questions.
The duty of investigation of the decision maker also entails that the decision makerhas to ask the applicant to address issues that remain unclear due to, for example, lack of
information or inconsistencies in the applicant’s story. This is not directly related to theburden of proof, but concerns the roles of the different participants in the dialogue aboutstories and arguments. While the applicant has a more persuasive role, they have topersuade the decision maker of their central claim, the decision maker has a more
inquisitive role, they are more interested in gaining knowledge about the applicant’s case.
Different types of dialogue goals, such as persuasive and inquisitive, have been proposed

by Walton and Krabbe (1995), but there is not much work on combining different typesof dialogue agents in one dialogue. Bex and Prakken (2008) propose a dialogue which isboth persuasive and inquisitive, but do not assign specific roles to participants.
3.3. Credibility assessment
The next phase in the assessment of an asylum claim is the credibility assessment, inwhich the decision maker needs to decide which facts are established and which facts are
rejected. Credibility is a term that is used extensively in the literature on evidence
assessment in asylum cases (REFs). It can mean the credibility of a story, or a collectionof facts (e.g. “this story about Adnan fleeing from Aleppo because of the civil war iscredible”) as well as the credibility of a person (e.g. “Adnan seems a credible person”).
Both the EASO guide and the IARLJ guide mention a number of criteria to judge theevidence and the applicant’s story, namely consistency, plausibility, sufficiency of detail,specificity and personal involvement.
Consistency is defined by the EASO guide as compromising a lack of discrepancies,
contradictions and variations in the material facts. A difference is made between internaland external consistency (IARLJ 2013), where the internal consistency concerns theevidence and story presented by the claimant itself, and the external consistency concerns
consistencies or discrepancies between the evidence and statements of the applicant andother evidence, such as COI reports. Internal consistency is partly captured by theconsistency criterion in the hybrid theory (section 2.2.). If, for example, if Adnan in thesame story claims they were in Aleppo and Istanbul on the 11th of December, the story
contains two logically inconsistent elements. Consistency, both internal and external, isalso captured by evidential support and contradiction in the hybrid theory. Evidential
contradiction clearly points to inconsistencies: for example, if the applicant first tells astory about being in Istanbul and later simply denies this, his later statement effectively
contradicts an element of his earlier story, Similarly, an external witness claiming that
Adnan was never in Aleppo is inconsistent with Adnan’s earlier story and thus
contradicts this story (see Figure 2). While, logically speaking, evidential support andconsistency need not be the same – a story can be consistent with evidence, but not be
supported by that evidence – the text of the EASO and IARLJ guides does show thatwhen a story is consistent with evidence, it is meant that the story is supported byevidence: under “external credibility”, it is mentioned that the external consistency
should be checked by determining whether there is, for example, other evidence“supportive […] to the applicant’s statements” (EASO 2015, pp. 12).
With respect to consistency, only the credibility of the facts that are directly relevantto the material facts should be checked, and that any credibility findings on statementsthat do not pertain to the material facts should not be taken into consideration. This canbe captured in the hybrid theory by the concept of relevance explained earlier. It is further
stressed that the applicant should be given the chance to explain or clarify any inconsistencies. Like the decision maker’s duty of investigation, this “rule” of the EASO guidecan only be fully captured in a dialogical setting: if one participant in the dialogue (thedecision maker) finds an inconsistency, they should ask the other participant (theapplicant) to resolve this inconsistency.
With respect to the weighing of the different (internal, external) consistent andinconsistent pieces of evidence, the EASO guide clearly states that the credibilityassessment should be positive if there are no inconsistencies, that is, if according to thehybrid theory the evidential contradiction of the applicant’s story is low and the story
itself is consistent. So while supportive or corroborative evidence will help an applicant’scase, the main criterion is that the claim is at least consistent with what we know fromexternal evidence such as COI. However, caution is needed in situations were claimants
tailor their claims to be consistent with COI: too much consistency can also point to thefact that, for example, the applicant has rehearsed a certain story.
Plausibility concerns the stories in a case, and is defined by the EASO guide as
follows: “to be plausible the sequence of events has to have the quality of being likely
and seeming possible to a reasonable person” (EASO 2015, p. 12). This can therefore be
more or less equated with the criterion of plausibility in the hybrid theory: does the story
follow our knowledge about how things typically happen in the world? Or, in more
technical terms, can we find arguments based on general knowledge for the elements ofthe story? These explicit arguments against the plausibility of a story can be found in the
IARLJ guide: if a decision maker decides to reject a claim because it is deemed
implausible, this should be fully reasoned.
Because plausibility is based on the general knowledge of the decision maker, it isalways secondary to findings on consistency. This is similar to the hybrid theory, where it
is argued that evidential support should always take precedence over the plausibility of astory, lest we run the risk of preferring a plausible but false story (i.e. a plausible story
with not much evidential support) over an implausible but true story (i.e. an implausible
story supported by evidence). Furthermore, it is important to note that, contrary to cases
in criminal law, the decision makers are dealing with general knowledge from othercultures and countries. Take, for example the situation were a woman testifies that she
has no idea where here husband was for the last half year. From a Western point of view,
this might seem wholly implausible – however, in some cultures in Africa, for example,
women are not supposed to ask their husband where they are and what they do, and it isnormal for men to be away from home for longer periods.
Sufficiency of detail is about the detail in which the applicant presents about theirsituation in the country of origin and their flight story. This is captured by thecompleteness criterion in the hybrid theory: does a story have all its parts, that is, is therea sufficiently detailed motive for the actions of the applicant, and does the story clearlystate how and why things happened as they did? With respect to detail or completeness,
the EASO interview guide (EASO 2014) mentions the elements of a story that need to be
discussed with the applicant in order to have a complete picture. Interestingly, the guideprovides a number of critical questions that could be used to check the completeness of astory, such as “What happened?” and “Where did it happen?” (EASO 2014, pp. 15-17).
A sufficiently detailed story is not enough, however. The statements of the applicant
should also have a certain level of specificity (EASO 2015) or personal involvement(IARLJ 2013). Some asylum claims tick all the boxes, including sufficiency of detail, butlater on decision makers find out that the applicants rehearsed their story with smugglers.
In those cases, it might be helpful to ask personal questions and not stick too much to thecore elements of the claim (EASO 2015).
3.4 Benefit of the doubt and risk assessment

Because it is often difficult to find reliable external evidence, decision makers can reachthe conclusion that they do not know if a material fact is credible or not. In those cases,
the principle of the “benefit of the doubt” can be applied in order to determine whether amaterial fact (i.e. an element of the applicant’s story) can be accepted or rejected. For the
benefit of the doubt to be applied, five conditions have to met: (i) the applicant has madea genuine effort to substantiate his claim; (ii) a satisfactory explanation has been given
regarding any lack of evidence; (iii) the applicant’s statements are coherent and plausible
and correspond with generally available information; (iv) the applicant has applied for
asylum at the earliest possible time, unless there is a good reason for not having done so;(v) the applicant has been credible on other material facts.
Conditions (i) and (iv) concern reasoning about the behaviour of the applicant during
the asylum claim process, and are thus not captured in the hybrid theory. Condition (ii)concerns the explanations of the applicant on, for example, they were not able to handover their passport. Such explanations can be captured and assessed in the hybrid theory.
Whilst the coherence and credibility in (iii) and (v) can be captured in the hybrid theory,an additional standard defining, for example, how many of the other statements andmaterial facts have to be credible could be incorporated in the hybrid theory.
Once the credibility of the material facts has been established, either in the usual way
or through application of the benefit of the doubt, an assessment of a future risk needs tobe made. Even if we accept the material facts as being credible, this still might only meanthat the applicant in the past had a subjective fear of persecution or that the risk of harm
was subjective. So the fear of persecution or the risk of serious harm has to be supported
by objective evidence. Furthermore, whilst past persecution is a strong indication for
future persecution (EASO 2015), it might be that the situation in the country of origin haschanged after the applicant has fled and no risk of future persecution exists. But it canalso be the other way around, when there is no indication of past persecution but future
persecution is likely, for instance when there is a regime change or war breaks out in the
country of origin while the applicant was not there.
Although the risk assessment might be the hardest part of the assessment of an
asylum claim, not to mention the enormous implications if misjudged, both the EASO
and IARLJ guides pay much more attention to the credibility assessment than to the risk
assessment. This is probably because the risk assessment is based on the material facts
that are established when assessing the credibility, and a mistake in the credibility
assessment hence has direct implications for the risk assessment. While the hybrid theory
could support additional argumentation about the future risk based on findings of pastrisks, this has not yet been explored in depth. The main focus of the hybrid theory lies onproviding evidence for what happened in the past and drawing legal conclusions based on
this. That said, arguing about future risks is, from a logical point of view, perfectly
possible using a combination of stories and arguments (Hovestad and Bex, 2016).
4. Conclusions and discussion
The main aim of this paper has been to explore if the hybrid theory can be applied to theassessment of evidence in asylum cases. We have described the process of evidence andcredibility assessment in asylum cases as laid out in the EASO guide, and looked atwhich elements and criteria used in this process are captured by the hybrid theory aspresented in the literature (Bex et al. 2008, 2011, 2012, 2013). Table 1 presents thecorrespondences between the credibility assessment process and the hybrid theory.
As can be seen in the table, there are a number of areas where the hybrid theory canbe expanded. The first area concerns different types of critical questions, which need to
be formally defined in order to be fully incorporated into the hybrid theory. Some ofthese questions can be adapted from the EASO guides (EASO 2014, 2015), which present
critical questions for different types of evidence as well as for applicant stories.
Table 1: Elements of the credibility assessment process and the corresponding elements of the hybrid
theory. A star * indicates a possible future development of the hybrid theory.

Credibility Assessment in Refugee Law
Determining the material facts

Hybrid Theory
Infer the legal definitions from the facts of
the refugee’s story through (legal) rules
Decision maker’s duty of investigation- Burden of proof (production)- Participant-specific rules for a dialogue
game*
Reasoning about types of evidence (e.g. Argument schemes and critical questions
traumatized witnesses, reliability of COI)
for types of evidence*
Internal consistency of the story
Story consistency
External consistency of the story with other - Evidential contradiction
evidence- Evidential support (to a lesser extent)
Plausibility
Plausibility
Sufficiency of detail- Story completeness- Critical questions for stories aimed at
checking detail*Specificity/personal involvement- Critical questions for stories aimed at
checking personal involvement*
Benefit of the doubt- Rules concerning the (dialogical) movesof the applicant*- Stories explaining (lack of) observations- Standards of proof*
Risk assessment
Argumentation of future risks based on past
events*What is clearly underdeveloped is the dialogical process of reasoning with stories
and arguments. Preliminary ideas have been expressed in (Bex and Prakken 2008), but no
dialogical context for the hybrid theory has been given. The study of the asylum claim
assessment process shows that, for example, different roles and strategies of participants
must be understood and captured. The decision maker’s duty of investigation involves
asking the right questions at the right time, and for the applicant to be granted the benefitof the doubt they must have provided the right information at the right time. The only
way to fully capture this is as a dynamic dialogue which takes place over time.
Another possible addition to the hybrid theory is a standard of proof for refugee law.
Bex and Walton (2012) have provided some interpretations of the various proof standardsof civil and criminal law (balance of probabilities, beyond a reasonable doubt), and astandard of proof for asylum claims could be designed along similar lines. However, aproblem is that in refugee law, the standard of proof is not clearly defined. While it iswidely acknowledged that the standard of proof applied in criminal law (beyond
reasonable doubt) is too high (Staffans 2012, Hathaway and Foster 2014), there is noagreement on what the exact standard should be and how this should be expressed.
Furthermore, the principle of benefit of the doubt also acts as a standard of proof, eventhough it is not expressed as some kind of likelihood.
Recall that this paper also intends to briefly address a second question, namely
whether it makes sense to follow the hybrid theory’s method of story and evidence
assessment in asylum cases. Because there is often no additional evidence, the asylum
process is very much focused on a central story has thus, in contrast to criminal law, led
to a number of clear criteria for story assessment in refugee law. Thus, the criticalassessment of an explicit story (questions 1 and 4 in section 2.4) is central to the claim
process: both the EASO and the IALJ guideline stress that there should be a clear andsufficiently detailed story, which should be assessed on (internal) consistency,
plausibility and personal involvement.
The lack of external evidence also means that in refugee law, most stories are notsufficiently supported by evidence (question 2, section 2.4). The focus in asylum cases ison whether the story is simply consistent with the other evidence, which is a less strict
requirement than requiring the story to be actively supported by evidence. Furthermore,
the benefit of the doubt principle shifts the focus from proving the facts with direct
evidence to showing that the applicant has at least a consistent and plausible story.
While in the hybrid theory alternative explanations for the evidence are very
important (question 5, section 2.4), the EASO and IARLJ guidelines do not mention
alternative stories. The claim process focuses on the claim made by the applicant, which
can either be rewarded or rejected but there is little room for alternative stories. Because
so little additional evidence is available, there is nothing that may point to a possible
alternative story. Furthermore, because the alleged events have taken place outside thecountry where the application is made, there is little room for the serious investigation of
possible alternative accounts of what happened, especially given the amount of applications and the time available for each application. However, a possible interpretation of theneed for alternatives lies in the risk assessment process. When performing the final risk
assessment, decision makers have to not only take into account the (credible) story toldby the applicant, but also possible alternative possibilities of persecution or risk of serious
harm. For example, say that Adnan was persecuted by the government of Syria. Now, if
the central government is no longer in control of Adnan’s home town, one could say that
there is no fear of persecution anymore. However, if Adnan’s hometown is suddenly on
the front lines of a civil war, one could argue that, alternatively, Adnan is eligible forsubsidiary protection because there is a risk of serious harm. Because of the focus on
credibility, the exact process of risk assessment and how to reason in this risk assessment
is not made entirely clear in the EASO and IARLJ guidelines, but in our opinion thecomparison and construction of alternative risk scenarios deserves more attention, both in
the literature on assessing asylum claims and in the hybrid theory.
References
Anderson, T.J., Schum, D. A., and Twining, W. L. (2005) Analysis of Evidence, 2ndedition, Cambridge University Press, Cambridge.

Bex, F.J. (2011). Arguments, Stories and Criminal Evidence: A Formal Hybrid Theory.
Dordrecht: Springer.
Bex, F.J. and Prakken, H. (2008) Investigating Stories in a Formal Dialogue Game.
Proceedings of COMMA 2008 172:73-84. IOS Press, Amsterdam.
Bex, F.J. and Verheij, B. (2012) Solving a Murder Case by Asking Critical Questions: An
Approach to Fact-Finding in Terms of Argumentation and Story Schemes.
Argumentation 26:3, 325-353.
Bex, F.J. and Verheij, B. (2013) Legal Stories and the Process of Proof. Artificial
Intelligence and Law 21(3): 253-278.
Bex, F.J. and Walton, D. (2012) Burdens and Standards of Proof for Inference to the Best
Explanation: Three Case Studies. Law, Probability and Risk 11 (2-3): 113-133.
EASO (2014) EASO Practical Guide: Personal interview. European Union: European
Asylum Support Office.
EASO (2015) EASO Practical Guide: Evidence Assessment. European Union: European
Asylum Support Office.
Godden, D. M., and Walton, D. (2007). A theory of presumption for everyday
argumentation. Pragmatics & Cognition, 15(2), 313-346.
Hathaway, J.C. and Foster, M. (2014) The law of refugee status, Cambridge: Cambridge
University Press.
Hovestad, B.W. and Bex, F.J. (2016) Making sense of risks: A hybrid argumentativenarrative approach to risk assessment. Technical Report, 2016-006. Utrecht
University.
IARLJ (2013) Assessment of Credibility in Refugee and Subsidiary Protection claims
under the EU Qualification Directive - Judicial criteria and standards. International
Association of Refugee Law Judges
IND (2014) Guidelines 2014/10 (Immigratie en Naturalisatie Dienst, werkinstructie
2014/10).
Noll, G. (eds) (2005) Proof, Evidentiary Assessment and Credibility in Asylum
Procedures, Brill: Leiden.
Pennington, N., and Hastie, R. (1993) Reasoning in explanation–based decision making.
Cognition 49:1–2, 123 – 163.
Prakken, H. and Sartor, G (2011) On modelling burdens and standards of proof instructured argumentation. Proceedings of JURIX 2011, 83-92. IOS Press.
Schank, R.C. (1986) Explanations Patterns: Understanding Mechanically andCreatively, Lawrence Erlbaum, Hillsdale (New Jersey).
Verheij, B., Bex, F., Timmer, S., Vlek, C., Meyer, J.J., Renooij, S., & Prakken, H.
(2016). Arguments, Scenarios and Probabilities: Connections Between Three
Normative Frameworks for Evidential Reasoning. Law, Probability & Risk 15, 35-70.
Wagenaar, W.A., Koppen, P.J. van, and Crombag, H.F.M. (1993) Anchored Narratives:
The Psychology of Criminal Evidence, St. Martin's Press, New York (New York).
Walton, D.N., C.A. Reed, and F. Macagno (2008) Argumentation schemes. Cambridge:
Cambridge University Press.
Wigmore, J.H. (1931) The Principles of Judicial Proof or the Process of Proof as Given
by Logic, Psychology, and General Experience, and Illustrated in Judicial Trials (2ndedition). Little, Brown and Company, Boston (MA).