Blog post by Maja Grundler, Queen Mary, University of London, and forms part of a series of blog posts responding to the UK Home Office’s New Plan for Immigration.
The UK government’s “New Plan for Immigration” foresees establishing a ‘more rigorous standard’ for determining whether an individual applicant is at risk of being persecuted if returned to her country of origin. In a number of short paragraphs in chapter four, the policy proposes sweeping changes to substantive refugee law, importing issues into the persecution enquiry that are not relevant to the analysis, while seeking to narrow the concept of persecution and thereby the refugee definition. In full, the relevant part of the New Plan reads as follows:
We want to ensure victims of persecution are properly protected while at the same time making it harder for unmeritorious claims to succeed.
We will therefore consult on a clear test against which any asylum claim can be assessed, putting in place a more rigorous standard for testing the “well-founded fear of persecution” a person must meet.
This test will have two elements. The first element is that the person is who they say they are and that they are experiencing genuine fear of persecution. This will have to be proven to the standard of “balance of probabilities” and will include a credibility assessment, considering all the relevant evidence. This includes consideration of opportunities the person had to claim asylum in other countries. If previous opportunities to make a claim have not been taken, or if a claim is contradictory, that could impact on the credibility of a person’s testimony.
The second element will consider whether the claimant is likely to face persecution if they return to their country of origin. This will need to be proven to the standard of “reasonable likelihood”. If a person claims a persecution risk as a result of being part of a group, they will have to establish that the group is suffering from systematic and widespread persecution. Alternatively, the person who claimed will have to establish a risk that is personal and individual to them.
We will also clarify in statute the definition of “persecution” to make clear the requirements for qualifying for protection, in line with the Refugee Convention.
Thus, the proposed changes entail not only a definition of the concept of persecution, but also a two-stage persecution test, with two different standards of proof, which requires an applicant’s future fear, identity, credibility and hypothetical opportunities to seek protection elsewhere to be examined on the balance of probabilities, before reasonable likelihood of risk of being persecuted is assessed. Regarding risk of persecution, the policy introduces a distinction between group-based and individual persecution, importing issues relevant to the nexus enquiry into the risk analysis, as well as – oddly – a phrase taken from international criminal law.
In this blog post, I will look at each of these elements in turn, drawing on both international refugee law, and on UK domestic refugee law jurisprudence, in order to point out the flaws and dangers inherent in this part of the New Plan.
The Two Different Standards of Proof
The proposed introduction of a two-tier test for persecution is not a new idea, but was, in fact, already considered – and rejected – by UK courts from the 1990s onwards (see Kaja v Secretary of State for the Home Department ; Karanakaran v Secretary of State for the Home Department ). The civil law standard of “balance of probabilities” is not appropriate for assessing future risk of persecution, instead, the lower standard of “reasonable likelihood” applies (R v Secretary of State for the Home Department, ex parte Sivakumaran ).
Although, the New Plan does not refer to any sources of law on which the proposal to introduce two different standards of proof is based, it is possible that the proposal draws on the judgement in Horvath v Secretary of State for the Home Department . In Horvath, Ward LJ suggested that instances of past persecution may be proved on the balance of probabilities. However, he went on to emphasise that matters concerning future risk must be assessed on the lower standard of reasonable likelihood. Seeing as past persecution informs the existence of future risk, this part of the judgement in Horvath is contradictory and indeed, this approach was subsequently rejected as impracticable by the Court of Appeal in Karanakaran, with Brooke LJ stating that the relevant part of Horvath (which was orbiter dictum) should not be followed.
Since the issues foreseen in the New Plan to be considered on the balance of probabilities, i.e. the applicant’s future fear, identity, and credibility, are all matters clearly relevant to establishing future risk, they must be considered on the lower standard of proof. In this context it is worth noting that demanding that a refugee prove her identity on the balance of probabilities is likely to be incompatible with the 1951 Convention relating to the Status of Refugees (Refugee Convention), since Article 27 of the Convention recognises that refugees may not be in possession of identity documents. The same is reflected in Article 31(1), which exempts refugees from penalisation for entering irregularly (i.e. without the necessary documents).
With regard to the proposal that an applicant’s hypothetical opportunities to seek protection elsewhere should inform her credibility assessment, it must be kept in mind that nothing in the Refugee Convention obliges a refugee to seek protection in the first country she enters. In addition, just as the existence of an internal protection alternative in the country of origin does not negate the original fear of being persecuted, a finding that – hypothetically – the applicant could have claimed asylum in another country does not invalidate the fact that she will be at risk of persecution in her country of origin.
The Concept of Persecution
The remainder of the relevant section of the New Plan deals with proposals on defining the concept of persecution and introducing criteria on how to assess risk. Since the concept of persecution is not defined in the Refugee Convention, introducing a statutory definition risks unduly narrowing the concept and thereby the Convention’s refugee definition. Any such definition must be open-ended in order for new and emerging forms of persecution to be considered, and must acknowledge that persecution can be an accumulation of different measures.
The New Plan also seeks to draw a distinction between “personal and individual risk” and group-based persecution. This distinction is nonsensical as each asylum claim must be assessed individually, thus examining the “personal risk” to the applicant, while the nexus clause of the Refugee Convention also requires that the applicant’s fear of being persecuted is connected to her race, religion, nationality, political opinion, or membership of a particular social group. Thus, all refugees face an individual risk of being persecuted, yet this must be connected to the applicant’s characteristics or beliefs, which (normally) make her part of a group.
Another puzzling change to refugee law proposed in the New Plan concerns the requirement that those at risk of persecution as a result of being part of a group (i.e. virtually all refugees), ‘will have to establish that the group is suffering from systematic and widespread persecution.’ The phrase “systematic and widespread persecution” is not taken from the Refugee Convention. Instead, it is reminiscent of the phrase “widespread or systematic attack”, which stems from international criminal law – more specifically the Rome Statute’s Article 7 on crimes against humanity. The Statute lists a number of crimes which amount to crimes against humanity ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ Although the crimes listed are likely to constitute persecution for the purposes of refugee law, there is no basis for importing a criminal law threshold into refugee law. Indeed, in the context of discussing the Convention ground “membership of a particular social group”, the UK House of Lords has clarified that ‘it is not necessary to show that all members of the social group in question are persecuted before one can say that people are persecuted for reasons of their membership of that group’ (K and Fornah v Secretary of State for the Home Department ).
The substantive changes to refugee law proposed in the New Plan are incompatible with both the Refugee Convention and UK domestic refugee law jurisprudence. Rather than clarifying or facilitating the persecution enquiry, these changes would complicate and confuse refugee status determination.
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