UK - Immigration Appeal Tribunal, 10 June 1994, Kaja (Political asylum; standard of proof) (Zaire) [1994] UKIAT 11038

Country of Decision:
Country of Applicant:
Date of Decision:
10-06-1994
Citation:
[1994] UKIAT 11038
Additional Citation:
HX/70673/93, [1995] Imm AR 1
Court Name:
Immigration Appeal Tribunal
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Headnote: 
The Immigration Appeal Tribunal (IAT) addressed the question of whether the assessment of facts and the determination of refugee status involved a two stage process with different standards of proof. The standard of proof for the assessment of status is “reasonable degree of likelihood.”
Facts: 
The applicant, from what was then Zaire (now Democratic Republic of Congo), had his asylum claim refused on applicant and at appeal. The applicant raised three complaints about the decision of an adjudicator (now Immigration Judge) to dismiss his appeal. He had not been found credible.

In relation to the first challenge, the parties to the appeal agreed that the matter required remittal for a hearing de novo or fresh hearing because the adjudicator had not referred to any standard of proof.
 
The standard for assessing whether an applicant qualified for asylum was “ whether there is a reasonable degree of likelihood of persecution if returned” which had been establisehd in UK law in the case of Sivakumuran, R (on the application of) v Secretary of State for the Home Department [1987] UKHL 1.
 
The second error concerned a misdirection on the law relating to the possibility of successfully claiming asylum on the basis of a failed claim. (Senga)
 
The third matter before the IAT was the question of whether the assessment of an asylum claim was a one or two stage process.  One division of the Tribunal had decided in Baig (8497) that it was a one stage process with the standard of proof being ‘reasonable likelihood’. A differently constituted tribunal in Mukendi (10586) held that there was a two stage process, first the historic facts should be established on the balance of probabilities and then the likelihood of future persecution could be assessed using the Sivakumaran standard. 
Decision & Reasoning: 
The IAT split two to one, the majority deciding that there was a single standard of proof and not a two stage process. The majority reviewed the higher UK authorities, none of which was directly relevant to the question raised. The majority held it inconceivable that the House of Lords in Sivakumaran had envisaged a two stage process involving different standards of proof.
 
The majority referred to paragraph 42 of the  UNHCR Handbook on Procedures and Criteria for Determining  Refugee Status and concluded that the adoption of a two stage test would make a ‘serious inroad into the focus on the risk or reasonable degree of likelihood which lies at the heart of Sivakumaran’ and went on to discuss the importance of uncertainty in the process.
 
In particular the majority considered credibility in relation to the problem of a one or two stage process:

"31. It is precisely the same with the ultimate evaluation of a "reasonable degree of likelihood" - that being applied to the assessment of the evidence whatever standards have been applied to assess aspects of it. The standards applied to aspects of the evidence will obviously be made by the decision taker with the ultimate evaluation in mind. It may be that there are parts of the evidence which on any standard are to be believed or not to be believed and some which are more likely than not, and some about which there is a doubt. The need to reach a decision on whether an appellant has made his case to a reasonable degree of likelihood arises (just as "more likely than not") only on the ultimate evaluation of the case. All the evidence and the varying degrees of belief or disbelief are then assessed.’"
 
In a minority determination the third member of the tribunal rejected the reasoning of the majority, issuing no reason but ‘common sense or in law [why] the burden of proof [sic] should be any lower than the normal civil standard of balance of probabilities.’
Outcome: 
As has been indicated the substantive case was remitted for a fresh hearing. 
Observations/Comments: 
The majority position on standard of proof was not challenged and was fully endorsed by the Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11.

Some six years later, further confusion had arisen as to whether Kaja meant that past events were judged by the standard of proof of reasonable degree of likelihood. This was clarified by Brooke LJ where he states:
 
“It is important to understand clearly the true effect of the majority decision in Kaja. They did not decide, as is suggested in one headnote  that:

"... the lower standard of proof set out in Sivakumaran applied both to the assessment of accounts of past events and the likelihood of persecution in the future."
What they decided was that when assessing future risk decision-makers may have to take into account a whole bundle of disparate pieces of evidence:

 
(1) evidence they are certain about;
(2) evidence they think is probably true;
(3) evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true;
(4) evidence to which they are not willing to attach any credence at all.

 
The effect of Kaja is that the decision-maker is not bound to exclude category (3) evidence as he/she would be if deciding issues that arise in civil litigation.
Case Law Cited: 

UK - Fernandez v Government of Singapore [1971] 1 WLR 987

UK - R v Immigration Appeal Tribunal ex parte Aji-barwuah (8 December 1980)

UK - R v Immigration Appeal Tribunal, ex p Jonah [1985] Imm AR 7

UK - R v Secretary of State for the Home Department Ex p Sivakumaran (and conjoined appeals) [1988] AC 958

UK - R v Secretary of State for the Home Department ex parte Halil Direk [1992] Imm AR 330