KS (Benefit of the Doubt)
| Jurisdiction | UK Non-devolved |
| Judge | Storey UTJ,Storey,O'Connor,Coker,Coker UTJ,O'Connor UTJ |
| Judgment Date | 10 December 2014 |
| Neutral Citation | [2014] UKUT 552 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 10 December 2014 |
[2014] UKUT 552 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Coker
UPPER TRIBUNAL JUDGE O'Connor
For the Appellant: Mr D Bazini, Counsel instructed by Lawrence & Co Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer
KS (benefit of the doubt)
(1) In assessing the credibility of an asylum claim, the benefit of the doubt (“TBOD”), as discussed in paragraphs 203 and 204 of the 1979 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, is not to be regarded as a rule of law. It is a general guideline, expressed in the Handbook in defeasible and contingent terms.
(2) Although the Handbook confines TBOD to the end point of a credibility assessment (“After the applicant has made a genuine effort to substantiate his story”: paragraph 203), TBOD is not, in fact, so limited. Its potential to be used at earlier stages is not, however, to be understood as requiring TBOD to be given to each and every item of evidence, in isolation. What is involved is simply no more than an acceptance that in respect of every asserted fact when there is doubt, the lower standard entails that it should not be rejected and should rather continue to be kept in mind as a possibility at least until the end when the question of risk is posed in relation to the evidence in the round.
(3) Correctly viewed, therefore, TBOD adds nothing of substance to the lower standard of proof, which as construed by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, affords a “positive role for uncertainty”.
(4) The proposition in paragraph 219 of the Handbook, that when assessing the evidence of minors there may need to be a “liberal application of the benefit of the doubt” is also not to be regarded as a rule of law or, indeed, a statement of universal application. As a reminder about what the examiner should bear in mind at the end point of an assessment of credibility, the proposition adds nothing of substance to the lower standard of proof. If, for example, an applicant possesses the same maturity as an adult, it may not be appropriate to resort to a liberal application of TBOD.
(5) Article 4(5) of the Qualification Directive is confined to setting out the conditions under which there will be no need for corroboration or “confirmation” of evidence. Although (unlike the Handbook) Article 4(5) does set out conditions that are rules of law, properly read, it is not to be compared with the scope of TBOD as described above.
This appeal raises two issues: the general issue of whether in the assessment of credibility the benefit of the doubt (hereafter “TBOD”) should be a guiding principle; and the more specific issue of whether a tribunal judge errs in law if he fails when assessing the credibility of a minor to give to that person's evidence a “liberal application of the benefit of the doubt”.
TBOD is a commonly invoked rule in asylum law. 1 Its locus classicus is to be found in paragraphs 203–204 of the 1979 UNHCR Handbook, wherein it is seen as a rule that it is “frequently necessary” to apply when assessing the credibility of an asylum claim. It is referred to in some of the literature (and was referred to by us in case management
directions) as a “principle” but for reasons which will become apparent we think, on reflection, that to call it a “principle” or even a “rule” risks confusion; we prefer, depending on the context, to refer to it by the more neutral term “notion”. Paragraphs 203–204 provide:“203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196) it is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.”
The notion is also seen by the Handbook as one that needs a “liberal application” when assessing the credibility of asylum claims made by minors. Paragraphs 213–219 state:
“213. There is no special provision in the 1951 Convention relating to the refugee status of persons under age. The same definition of a refugee applies to all individuals, regardless of their age. When it is necessary to determine the refugee status of minor, problems may arise due to the difficulty of applying the criteria of ‘well-founded fear’ in his case. If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor's own refugee status will be determined according to the principle of family unity (paragraphs 181 to 188 above).
214. The question of whether an unaccompanied minor may qualify for refugee status must be determined in the first instance according to the degree of his mental development and maturity. In the case of children, it will generally be necessary to enrol the services of experts conversant with child mentality. A child – and for that matter, an adolescent – not being legally independent should, if appropriate, have a guardian appointed whose task it would be to promote a decision that will be in the minor's best interests. In the absence of parents or of a legally appointed guardian, it is for the authorities to ensure that the interests of an applicant for refugee status who is a minor are fully safeguarded.
215. Where a minor is no longer a child but an adolescent, it will be easier to determine refugee status as in the case of an adult, although this again will depend upon the actual degree of the adolescent's maturity. It can be assumed that – in the absence of indications to the contrary – a person of 16 or over may be regarded as sufficiently mature to have a well-founded fear of persecution. Minors under 16 years of age may normally be assumed not to be sufficiently mature. They may have fear and a will of their own, but these may not have the same significance as in the case of an adult.
216. It should, however, be stressed that these are only general guidelines and that a minor's mental maturity must normally be determined in the light of his personal, family and cultural background.
217. Where the minor has not reached a sufficient degree of maturity to make it possible to establish well-founded fear in the same way as for an adult, it may be necessary to have greater regard to certain objective factors. Thus, if an unaccompanied minor finds himself in the company of a group of refugees, this may – depending on the circumstances, indicate that the minor is also a refugee.
218. The circumstances of the parents and other family members, including their situation in the minor's country of origin, will have to be taken into account. If there is reason to believe that the parents wish their child to be outside the country of origin on grounds of well-founded fear of persecution, the child himself may be presumed to have such fear.
219. If the will of the parents cannot be ascertained or if such will is in doubt or in conflict with the will of the child, then the examiner, in cooperation with the experts assisting him, will have to come to a decision as to the well-foundedness of the minor's fear on the basis of the known circumstances, which may call for a liberal application of the benefit of the doubt.”
What is said about minors in these paragraphs has been supplemented by the UNHCR Refugee Children Guidelines on Protection and Care, 1994 which at page 101 state that:
“(e) The problem of ‘proof’ is great in every refugee status determination. It is compounded in the case of children. For this reason, the decision on a child's refugee status calls for a liberal application of the principle of the benefit of the doubt. This means that should there be some hesitation regarding the credibility of the child's story, the burden is not on the child to provide proof, but the child should be given the benefit of the doubt.”
They have been further supplemented in 2009 by the UNHCR Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1A(2) and 1(F) of the 2951 Convention and/or 1967 Protocol relating to the Status of Refugees, which provide that:
“[65] Due to their young age, dependency and relative immaturity, children should enjoy specific procedural and evidentiary safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims. The general measures outlined below set out minimum standards for the treatment of children during the asylum procedure. They do not preclude the application of the detailed guidance provided, for example, in the Action for the Rights of Children Resources Pack, the Inter-Agency Guiding Principles on Unaccompanied and Separated Children and in national guidelines.
[68] For unaccompanied and separated child applicants, efforts need to be made as soon as possible to initiate tracing and family reunification with parents or other family members. There will be exceptions, however, to these priorities where information becomes available suggesting that tracing or reunification could put the parents or other family members in danger, that the child has been subjected to abuse or neglect, and/or where parents or family members may be implicated or have been involved in...
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