United Kingdom – Upper Tribunal delivers decision concerning standard of proof in Article 3 considerations

Monday, October 22, 2018

On 22 October, UK Upper Tribunal (Immigration and Asylum Chamber) ruled on the standard of proof in a case concerning the return of an applicant to Afghanistan.

The applicant is an Afghan national, who claimed asylum in the UK as a minor in 2015. The appellant claimed that his father had been forcibly recruited and killed by the Taliban, who then tried to forcibly also recruit him. The UK immigration authorities refused his application, as they found the claim of forced recruitment to be inconsistent with the background evidence about the activities of the Taliban. They also rejected the claim that the Applicant’s parents were killed by the Taliban due to inconsistencies in his account.

On appeal, the Court first examined the burden of proof in Article 3 cases. The Court begins by stating that according to UK case law, when someone claims their removal from the United Kingdom would violate Article 3 of the ECHR the burden of proof lies with the claimant. In this vein, the standard of proof requires the appellant to show a "reasonable likelihood" or "real risk" of Article 3 harm. However, referring to the UNHCR Note on the Burden and Standard of Proof and the jurisprudence of the ECtHR, the Court went on to examine the possibility that in some cases the burden of proof should shift to the government.

The Court found that the State authorities should dispel any doubts that a person is at real risk of Article 3 harm, if that person adduces evidence capable of proving that there are substantial grounds for believing that expulsion from the state would violate Article 3 of the ECHR. However, this requirement does not mean the burden of dispelling such doubts shifts to the government in every case where such evidence is referred to. This only happens where the claim is so lacking in substance as to be clearly unfounded.

Moreover, according to the Court, Directive 2004/83/EC provides that, where certain specified conditions are met, aspects of the statements of an applicant for international protection that are not supported by documentary or other evidence shall not need confirmation. The effect of this article is that a person who has otherwise put forward a cogent case should not fail, merely because they do not have supporting documentation. Nowhere in the Directive is it said that a person who has documentation which seems to be supportive of the claim, but whose claim is found to be problematic in other respects, has nevertheless made out their case, so that the burden of disproving it shifts to the government.

Finally, the Court states that when national courts and Tribunals are considering cases in which the ECtHR has decided to embark on its own fact-finding exercise, it is important to ensure that the ECtHR's factual conclusions are not treated as general principles of human rights law and practice. The Court dismissed the appeal and upheld the First-Tier Tribunal’s decision.

Many thanks to Becket Bedford, Barrister at No5 Chambers for informing us of this case.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. 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.                                                




Inhuman or degrading treatment or punishment
Standard of proof