The number of decisions overturned on appeal is testament to on-going problems with the asylum decision-making process, Amnesty International and the Still Human Still Here coalition said today as they published a new report.
The report A question of credibility: Why so many initial asylum decisions are overturned on appeal in the UK (PDF) examines why so many initial decisions to refuse asylum are being overturned by Immigration Judges.
Home Office statistics show 25% of initial decisions to refuse asylum are being overturned on appeal.
For this report, researchers examined a sample of 50 randomly selected cases and found that in the vast majority – over 80% – a flawed credibility assessment resulted in the wrong decision being arrived at in the first instance. Researchers analysed refusal letters and appeal determinations in cases concerning asylum applicants from four countries with particularly high appeal overturn rates; Syria, Sri Lanka, Iran and Zimbabwe.
The findings come just weeks after Home Secretary Theresa May announced that the UK Border Agency is to be abolished and asylum decisions brought back within the Home Office.
Jan Shaw, Refugee Affairs Programme Director at Amnesty International UK, said:
“We need an asylum system that gets the decision right first time. Getting the decision wrong in the first instance causes a great deal of anxiety for asylum seekers and prolongs the period in which they are left in limbo. It is also wasting tax-payers’ money by refusing people on patently spurious grounds, leading to costly and unnecessary appeals.
“In disbanding the UK Border Agency, Theresa May has acknowledged defects in the process as it stands, and she must now ensure that this is a watershed moment where a break with flawed practices is made once and for all.”
Citing the letters written to the applicants informing them of the decision in their case, and drawing on comments from the Immigration Judges who overturned the original decisions, the report identifies a number of key factors which contributed towards the consistently poor standard of these first-instance decisions.
In more than 80% of cases examined, a flawed credibility assessment resulted in the dismissal of the application. The approach adopted by some of the case workers was identified as a key factor in the flawed decision, wherein they would typically identify an action that they considered implausible, such as a minor inconsistency or a lack of documentary evidence, and then consider that issue in isolation.
The Immigration Judges who reviewed the initial decisions pointed out the shortcomings in the case workers’ analysis and drew attention to their inflexible approach. In one instance a case worker had refused to believe an asylum seeker from Iran was a journalist, despite being presented with a journalism card as they had not been able to translate the card in the interview to confirm what it said. When it was subsequently translated it was found to be legitimate.
In another instance, the decision maker had not believed it possible that a Syrian would not be able to name all the countries that border Syria, but the Judge found it entirely plausible that an uneducated farmer from a rural area might not have that knowledge.
Amnesty and Still Human are making a number of recommendations as to how the process could be improved, including advising that; more flexibility be built into the asylum process to allow relevant materials to be properly considered; case owners have discretion to delay a decision or an interview in order to obtain relevant evidence; policy alerts on fast changing country situations should be issued to case workers and case owners should defend their own decisions at appeal so they learn from their mistakes. The report also recommends that access to free expert legal advice and representation should be guaranteed to all asylum seekers prior to their initial interview and throughout the asylum process.
Recommendations
While the Home Office has introduced a number of positive initiatives in recent years to improve decision making procedures, more than one in every four initial decisions to refuse asylum continues to be overturned on appeal. Getting the decision wrong in the first instance causes a great deal of anxiety for the asylum seeker concerned and prolongs the period in which they are left in limbo. More accurate initial decisions would speed up the asylum process, resulting in significant savings for the Government through reduced administrative and support costs. In view of the above, we urge the Government to implement the following recommendations:
1. The Home Office must monitor the performance of individual case owners and their managers and address high overturn rates on appeal and consistent failure to properly apply policy guidance through appropriate support and training. If poor quality decisions persist then case owners and/or their managers must be removed from these roles.
2. More flexibility should be built into the asylum process to allow relevant materials (including medical evidence, country information and the translations of documents) to be properly considered both prior to and after the substantive interview, particularly if the applicant is unrepresented. Case owners should have discretion to delay a decision or an interview in order to obtain relevant evidence.
3. Decision makers should be required to give applicants an opportunity to explain apparent contradictions in their statements or inconsistencies with objective country of origin information.
4. The Home Office should encourage greater communication between the case owner, the applicant and their legal representative prior to interview, the initial decision and any appeal to try and resolve matters in dispute or to seek clarification around issues of concern (e.g. perceived inconsistencies or implausible behaviour). This could be facilitated by:
• Ensuring that case owners, applicants and legal representatives have access to full contact details of the other parties, including email addresses and direct phone numbers;
• Case owners contacting legal representatives or the applicants, using the invitation to interview letter, to indicate what information they would like before or at the asylum interview;
• Case owners contacting legal representatives or the applicants after the interview to raise any further issues arising from the interview so that these can be addressed prior to making the initial decision
5. Policy alerts on fast changing country situations should be issued and case owners should always check whether a new Operational Guidance Note (OGN), Country of Origin Information Service report or country guidance case has been issued prior to the appeal.
6. Cases with indefensible reasons for refusal should be withdrawn prior to the appeal.
7. Case owners should defend their own decisions at appeal. If Home Office Presenting Officers rather than case owners continue to represent at appeal, then an efficient feedback loop is needed so that case owners can properly learn from their mistakes.
8. Section 8 should be repealed as it gives inappropriate weight to certain actions as damaging to an applicant’s credibility. In the short term, current guidance should be amended to provide a wide variety of examples which would be regarded as providing a reasonable explanation for a delay in making an asylum application.
9. Joint training programmes, which include UNHCR and other stakeholders, should be established for case owners to address the problems identified in this research and in particular to deliver:
• Improved interviewing technique, including making better use of follow-up questions and how to probe material facts;
• A better understanding of how cultural or personal issues will inhibit or shape an individual’s actions in certain circumstances; why people may delay making an asylum application; and how trauma affects memory and recall, (e.g. through interactive learning and role playing exercises);
• Specialist training for senior case workers, the Quality Audit Team and those providing training so that they are better placed to identify and support staff who are having difficulties with credibility assessments.
10.Access to free expert legal advice and representation should be guaranteed to all asylum seekers prior to their initial interview and throughout the asylum process so that resources are focused on good quality, defensible decisions early in the decision making process.