UK Upper Tribunal (UT) Rules on “The Benefit Of Doubt” During Credibility Assessments of an Asylum Claim

Date: 
Tuesday, January 6, 2015

The Upper Tribunal has given judgment as to whether, in the assessment of credibility, the benefit of the doubt (as detailed in the UNHCR Handbook para 203 and 204) should be a guiding principle in an asylum claim and whether a tribunal judge errs in law if he fails, when assessing the credibility of a minor applying for asylum, to give to that persons evidence a liberal application of the benefit of the doubt.

Notwithstanding that the benefit of the doubt has oft been used in ECtHR jurisprudence (SHH v UK, I v Sweden and R.C. v Sweden) the Tribunal notes that the benefit of the doubt is not a rule of law, but instead a notion, only applying when there is doubt. However, this notion is nonetheless useful as clarification and should apply even at an early stage of the credibility assessmentie concerning where the applicant lives or his/her ethnic origin [71]. Thus, the Tribunal goes onto accept that in respect of every asserted fact when there is doubtthe assertion of the application should not be rejected and should rather continue to be kept in mind as a possibility.”  The UT further refers to Article 4(5) of the Qualification Directive which according to the Tribunal does not reflect or encapsulate a benefit of the doubt rule, but is instead confined to setting out the conditions under which there will be no need for corroboration or “confirmation” of evidence [85].  Thus, Article 4(5) must be applied on its own terms.

With regards to the second issue concerning whether a decision-maker must make a liberal application of the benefit of the doubt notion when it comes to assessing the credibility of a minor the Tribunal submits that this should not lower the standard of proof that the applicant is required to demonstrate, ie well-founded fear, but instead should be used as a “useful reminder…that the applicant is a child and that children in general are vulnerable in a way most adults are not [90].

In this particular case the Upper Tribunal found that the First-Tier Tribunal had erred in law given that some of the reasons advanced by the First-Tier judge for disapplying the liberal notion of the benefit of doubt for a minor were tenuous.  This, however, was not so much related to the benefit of the doubt notion but instead to UK domestic Immigration law which requires that more weight be given when assessing credibility to objective indications of risk than to the childs state of mind and understanding of his situation [106]. The UT therefore set the First-Tier Tribunal decision aside with a request to expedite a re-hearing.


19 December 2014                                      

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.                                                     

 

Keywords: 
Benefit of doubt
Credibility assessment
Tags: 
UK