Blog post by Cameron Roberts, student at NYU and current intern at the University of London Refugee Law Clinic
In 2023, nearly 1/3 of all asylum applicants in the UK received a letter of refusal from the Home Office as their initial decision, but of those that appealed 51% went on to receive a form of protection. While this is a hopeful development, as the rate of successful appeals has increased dramatically from the previous figure of 29% in 2010, there is still a considerable proportion of asylum seekers facing insurmountable obstacles in the appeals process. Often this is a result of the Home Offices’ credibility assessment, which is the determination of whether an asylum seekers account of persecution is true or believable and is often relied on or reinforced by judges in the appeal. Credibility assessments are just one part of the asylum decision making process which is unstructured as there are no official guidelines from the UNHCR on how states should conduct asylum proceedings. This leaves it to states to determine their own methods for offering asylum seekers refugee status. In the United Kingdom, the Home Office’s methods are often a topic of intense scrutiny.
While there is much focus on the impacts of flawed credibility assessments in the initial asylum application process, it is important to also analyze how a negative credibility assessment has ongoing negative implications for an applicant during their attempt at submitting a fresh claim. The fresh claims process, as laid out in paragraph 353 of the UK Immigration Rules, is available to asylum seekers once they have become appeals rights exhausted usually because of repeated negative decisions from the Home Office and Appeals Courts. A fresh claim is considered if an applicant has significantly new material to present as a part of their asylum claim but a negative finding from the first application will follow an asylum seeker through any new application they submit and any subsequent appeals, a requirement of case law. Considering the outsized role credibility findings continue to play in Home Office decision-making processes it is crucial to reveal the issues origins, its impacts on cases undertaken by legal providers such as the Refugee Law Clinic, and its blatant contradiction with official Home Office guidance.
Home Office Guidance
While Home Office decision making may seem flawed, this is not due to a lack of cohesive guidelines for assessing credibility. The Home Office guidance tasks caseworkers, who are responsible for making determinations in asylum proceedings, by taking a structured approach that emphasizes the credibility of the claim itself rather than the assumed credibility of the applicant. Moreover, the guidance identifies a plethora of “underlying factors” that could inhibit an applicant from correctly recalling all details relevant to their claim, such as mental health, level of education, the passage of time, and increasingly commonly, fear of UK officials. Another critical aspect of the guidance is its warnings against “knowledge testing,” a process by which Home Office officials will question an applicant’s knowledge on an issue relevant to their case. This tactic is subversive and has seen caseworkers penalizing applicants for insufficient answers to questions designed to stump them. Home Office guidance also requires caseworkers to apply the benefit of the doubt to “unsubstantiated aspects of an asylum claim…[and] to provide the claimant with an opportunity to explain the reasons for such behavior.”
Moreover, case law in the UK calls for caseworkers to be cognizant of possible cultural biases that could subconsciously influence the credibility assessments they complete. The 2006 decision in HK v Secretary of State for the Home Department EWCA Civ 1037 concluded that even if a case seems inherently improbable, this does not mean it is necessarily untrue. The cultural underpinnings of most Home Office caseworkers differ vastly from that of the asylum seekers they interview. Avoiding underlying scepticism is an increasingly arduous task for caseworkers despite explicit instruction to be aware of the pervasive impact of culture on decision making. The most prominent issue is that the Home Office does not implement this guidance across the board and even minuscule moves away from the exact Home Office decision making process can make a massive impact on a claimant’s credibility assessment. Often for the worse.
Credibility in Case Law
The findings of an initial judgement are unalterable in future applications. The initial judgement of an asylum seeker’s credibility, released by either the Home Office or Immigration Tribunal, follows an applicant through any subsequent applications or appeal processes. When putting forward further submissions to make a fresh claim for refugee protection, even if it is years since the initial judgement of their case, a negative credibility reading will remain relevant. Immigration judges’ affinity for abiding by the initial credibility assessment in fresh claims proceedings is a result of the case law established through Devaseelan. The case, Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702, established that the first Adjudicator’s determination “should always be the starting-point” for the second Adjudicator. While it is “not a legal straitjacket,” the criteria for departing from an earlier decision is strict and limited. Case law established through acknowledges that if an applicant is treated unfairly in their initial Devaseelan principles in their appeal process. This is related to “the principle of administrative law that persons should be treated uniformly”
Regarding credibility findings specifically, Devaseelan has become a crutch for Adjudicators that allows them to take past findings and apply them to separate issues. This was the issue raised in the 2018 case Mr R E v SSHD UKIAT where the Upper Tribunal Judge was tasked with deciding an appeal submitted following a rejection of an applicant’s further submissions. The issue in question related to the application of Devaseelan by the First Tier Tribunal judge which the applicant lauded resulted in a material error in law. In the First Tier Tribunal decision the judge earnestly asked a rhetorical question in his decision that is indicative of one of the most prominent flaws in the UK immigration system: “If the appellant was not credible before why should he be credible now?” But per the Upper Tribunal this logic does not amount to an error, it is an entirely acceptable mindset for a judge to hold.
This case is representative of a widely recognized domino effect in immigration decision making processes across the United Kingdom. A 2013 Amnesty International report chronicled this phenomenon through multiple case studies, revealing that “case owners made flawed credibility assessments based on one aspect of the claim, and then used this to undermine other aspects of the claim.” Case law established through Devaseelan leads immigration judges to err on the side of disbelief, one flaw in an applicant’s credibility often stains all past, present, and future evidence.
The case law is the starting point for any further submissions in the fresh claims appeal process. But errors in initial credibility findings, as evidenced through Mr R E v SSHD can often be the death knell for any hope of the Home Office accepting a fresh claim let alone for any subsequent appeal succeeding.
Credibility in Further Submissions: An RLC Case Study
The University of London Refugee Law Clinic (RLC) is no stranger to cases where credibility is the main factor in initial refusal. But even with the work of volunteers and staff attorneys, sometimes it is impossible to reverse the impact of original negative findings. The fresh claims test enshrined in paragraph 353 of the Immigration Rules sets out that a “decision maker will consider any further submissions…and then determine whether they amount to a fresh claim.” Cases where credibility is severely damaged from the start are often stopped at the further submissions stage and deemed by the Home Office decision makers as having failed to meet the legal test for fresh claim consideration.
In the case of S, a woman who fled her home in Central Africa seeking safety in the UK, she immediately damaged her credibility in the eyes of the home office because of the circumstances of her fleeing. She left her country of origin alone, without her husband and children. Moreover, once in the UK, S maintained in Home Office interviews that she had no contact with her husband or children. This was by far the biggest red flag in the eyes of her Home Office caseworker, but denting the credibility of a woman seeking asylum merely because a caseworker views it as stereotypically uncommon for a wife and mother to leave her life behind is biased decision making. This case is proof of the Home Office failing to follow its own guidelines. S falls within multiple categories of underlying factors, as defined through Home Office guidance, including gender, feelings of shame, and fear of UK officials. Yet all these factors, among others, were ignored by Home Office officials and did not factor into her final credibility assessment. So, when S saw her first claim for asylum refused, she was quick to advance further submissions. Unfortunately, the Home Office determined that her further submissions failed to meet the legal test to qualify for evaluation as a fresh claim. The Home Office cited Devaseelan after which they referenced the Appeal Determination where the First Tier Tribunal judge determined S was not a credible witness. The negative credibility assessment of S’s original asylum application and appeal to the First Tier Tribunal reflected on all subsequent evidence she included in her further submissions, leading the Home Office to conclude she did not meet the test for a fresh claim. S was served an immediate deportation notice and refused any additional rights to seek protection in the UK. As a next step, the RLC is currently seeking to refer her case out for Judicial Review.
Conclusion
Asylum seekers fleeing their homes to seek refuge elsewhere often go through some of the most traumatic experiences many of us could ever imagine. But Home Office caseworks cannot automatically categorize an unbelievable trauma as a lie. The so-called “culture of disbelief” in the UK Home Office plays an increasingly key role in the denial of rights to migrants across the country. It delays decisions and lengthens the process for asylum seekers in desperate need of more permanent assistance mechanisms. Given the disproportionate number of asylum seekers who see their first claim refused and later find success in the appeals process the real credibility crisis lies in the Home Office’s decision-making process. But even if appeals have growing success rates there is still an issue facing applicants whose initial credibility assessment is impossible to recover from. Especially in cases where the credibility assessment is excessively negative, and casts doubt on all other evidence submitted. In this case the caseworkers who consistently discredit applicants due to perceived negative credibility are the ones we should be less willing to trust.
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