To believe or not to believe? Harmonising EU practices on credibility assessment in asylum claims

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Date: 
Friday, February 7, 2014

In the framework of the Common European Asylum System, one core guiding principle states that “similar cases should be treated alike and result in the same outcome”[1]. The practice of EU member states still has a considerable distance to travel and the efforts are focusing at the moment on identifying and creating functioning mechanisms to harmonise the practices of 28 asylum systems.

The issues addressed are numerous and the asylum “package” of directives and regulations aims to encompass the standards that Member States should uphold, with the promise that there is a common European system in sight.

Even though Member States adopt the same legal concepts in accordance with the Qualification and Asylum Procedures Directives, results regarding credibility assessment in asylum proceedings vary from state to state. There are also considerable differences between adjudications in similar cases within the same Member State. UNHCR research shows that close to three out of five negative decisions are based on negative credibility findings[2].

This part of the asylum procedure seems to be where efforts should be dedicated, not just to harmonise the practices of Member States, but also to increase quality. Most EU Member States do not have specific guidelines on credibility assessment; in a large number of decisions, negative credibility findings are not transparently explained. The Asylum Procedures and Qualification Directives, in their present form, do not contain high quality indicators that can guide this very crucial process.

Realising the gap, UNHCR is currently considering issuing guidelines on how decision makers should assess credibility in asylum procedures.

Departing from the common philosophy that there is no perfect recipe to conduct the assessment of credibility, no certain ways to conclude weather a person is totally credible or should be constantly disbelieved, the Hungarian Helsinki Committee together with the UNHCR Bureau for Europe, the International Association of Refugee Law Judges (IARLJ) and Asylum Aid focused on the issue in the framework of the CREDO project[3]. In order to identify the shortcomings in practice, research on how credibility is assessed in three Member States was carried out. The purpose was to get an insight into whether credibility indicators are used and, if so, what these indicators are; what is the standard of proof employed and on whom rests the burden of proof in practice. The resulting research[4] is not a complete image of how things function in the three states audited, but a look into the practices employed, the various difficulties that might arise in the process – a situation that might very well be representative for other EU Member States – and also an effort to identify good practices worthy of being exported. Far from providing content for concrete guidelines, the “Beyond Proof” report lead by UNHCR offers conclusions on what are the most sensitive elements of the process and underlines procedural benchmarks which are essential for improving practices.

One natural conclusion that follows from the data on how divergent credibility assessment practices are in the EU is that more training is needed. The actors involved in the asylum process (case officers, judges, attorneys, legal counsellors etc.) receive training through different channels and in different formats. For the most part, training on how to improve credibility assessment practices in asylum procedures comprises several smaller parts of various training initiatives. With this in mind, the CREDO project delivered a training manual[5] freely available to all interested parties that focuses specifically on credibility assessment and the challenges associated with this. The material is based on a multi-disciplinary approach, making use of the latest developments in fields such as law, medicine, psychology and anthropology. There are no magic tricks or universallysuccessful techniques to overcome the difficult challenges of credibility assessment and the training manual does not offer such solutions. Instead, it delivers a framework for developing knowledge, skills and attitudes by bringing in information from several fields of science and applying those in the refugee context. The aim is to help asylum professionals reduce the possibility of errors and reach more objective and fair credibility findings, while applying a structured approach to the entire process. The fact that the manual is available for all parties in the asylum process is an effort to try to have a common understanding of the process, with its challenges, standards and procedural norms.

The CREDO training manual is based on a methodology that has been employed in face-to-face trainings over the last three years. Judges, asylum officers, lawyers and NGO practitioners from several European countries took part in training programmes on enhancing skills used for credibility assessments in asylum claims. As fruitful as the events were, they also showed that training on this topic was absent in many EU Member States. If in some cases it was just one group (asylum officers or judges or attorneys) that benefited from trainings on credibility assessment in the past, in other cases no actor involved in the asylum process was trained on the issue in the last four to five years.

Before aiming to harmonise practices, ways to harmonise access to knowledge in all Member States have to be strengthened.

Following the success and wide adoption of the “COI Checklist”,[6] the IARLJ embarked on developing a similar instrument that would provide judges in Europe with a common list of indicators and guidance to be used when assessing credibility in asylum cases. The drafting of the document involved consultations with more than 40 experienced asylum judges from Europe and beyond.

This soft-law instrument[7] aims to harmonise the practices of judges presiding in asylum cases in the EU by providing a list of appropriate criteria and standards to be used in credibility assessment. Besides guidance and explanation of some key concepts that are used when assessing credibility in asylum cases, the paper also includes leading jurisprudence on the issue from all over the world.

The CREDO initiative will continue with a strong emphasis on training (four training events are already scheduled in the spring of 2014 for judges (in Malta and Bulgaria) as well as asylum officers and NGO practitioners from all Member States) and UNHCR will look into the practices of credibility assessment in child asylum claims. With the cooperation of Member States coordinated by EASO, efforts to improve the practices in this area will be in the spotlight in the coming years.

 

Tudor Rosu

Project coordinator at Hungarian Helsinki Committee

February 2014

(This journal entry is an expression of the author’s own views, and not those of EDAL or the Hungarian Helsinki Committee. If you would like to share any comments, you can contact us here.)


[1] European Council, The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens, OJ C 115/1, 4 May 2010, section 6.2, Asylum: a common area of protection and solidarity.

[2] UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice - Detailed Research on Key Asylum Procedures Directive Provisions, March 2010, available at http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=4c63e52d2

[6] IARLJ, Judicial Criteria for Assessing Country of Origin Information (COI): a Checklist, November 2006, available at: http://www.iarlj.org/general/images/stories/working_parties/guidelines/udicial_Criteria_a_checklist_COI_2006.pdf

[7] IARLJ, Assessment of Credibility in Refugee and Subsidiary Protection claims under the EU Qualification Directive – Judicial Criteria and Standards, 2013, available at: http://www.iarlj.org/general/images/stories/Credo/Credo_Paper_March2013-rev1.pdf

Keywords: 
Benefit of doubt
Burden of proof
Country of origin information
Credibility assessment
Duty of applicant
Relevant Documentation
Relevant Facts
Standard of proof
Effective remedy (right to)
Best interest of the child
Tags: 
CEAS
UNHCR
Hungarian Helsinki Committee