Falling at each hurdle: assessing the credibility of women’s asylum claims in Europe

Abstract

The key reason why women are refused asylum is because they are not believed. The assessment of credibility plays a central role in the determination of an asylum applicant’s needs for international protection. It involves a determination of whether and which of the applicants’ factual statements and other evidence can be accepted as true, and therefore may be taken into account in the analysis of the well-founded fear of persecution and real risk of serious harm (United Nations High Commissioner for Refugees [UNHCR] 2013, 13). In asylum cases, credibility is an essential issue because corroborative evidence is often unavailable. If an applicant’s material claims are assessed as credible, his or her account of events and evidence will be believed and relied on in the decision-making process. Over the years a range of research into the quality of decision-making in asylum claims in different jurisdictions has concluded that the assessment of credibility formed the core of refusals examined (Kagan 2003; Coffey 2003; Thomas 2006; Millbank 2009). More recent research shows that despite new asylum mechanisms, guidance, training, and quality standards being introduced, this situation has not changed in Europe. In the ‘GENSEN report’, the widest ranging of such research in Europe published by the European Parliament in 2012, the asylum systems in nine countries were surveyed in relation to gender with a total of 132 questionnaires completed on refugee status determination or on reception and detention conditions. In addition, 60 interviews were undertaken with asylum seekers from 27 countries of origin. The key research finding was that the assessment of credibility was often at the core of asylum refusals in women’s cases (Cheikh Ali, Querton, and Soulard 2012). The UNHCR published research in 2013 on credibility assessments in Europe using a mixed method of research including reviewing legislation, case law, and guidance, analysing 120 initial decisions in three countries (Belgium, the Netherlands, and the United Kingdom), observing 29 personal interviews of applicants, interviewing 74 national stakeholders, andobserving training sessions for decision-makers on credibility assessment. The resulting report reflects disciplinary fields relevant to the assessment of credibility in the asylum procedure, including neurobiology, psychology, gender and cultural studies, anthropology, and sociology. The research demonstrated variations apparent in practically all aspects of the credibility assessment, which could be indicative of wider variations across the European Union member states (UNHCR 2013). Amnesty International’s 2013 study reviewed 50 cases in the United Kingdom where an initial decision had been overturned on appeal. In the majority of cases, the immigration judge indicated that the primary reason for an initial decision being overturned was that the United Kingdom Border Agency (UKBA) decision-maker had wrongly made a negative assessment of the applicant’s credibility. The four most common errors when assessing credibility were the use of speculative arguments or unreasonable plausibility findings, not properly considering the available evidence, using a small number of inconsistencies to dismiss the application, and not making proper use of country of origin information (Shaw and Kaye 2013). Asylum Aid published research in 2011 that focused specifically on initial decision-making in women’s asylum claims. Their analysis of 45 women’s cases in three regions of the United Kingdom and nine interviews with women asylum seekers concluded: ‘The assessment of credibility formed the core of the decision to refuse; other aspects of the decision-making process such as identifying the Convention ground and assessing issues of state protection were marginalised’ (Muggeridge and Maman 2011, 51). There was also evidence that women’s cases are more likely to be overturned on appeal than men’s and that this is due to negative credibility assessments at initial decision-making. The Asylum Aid study found: ‘ In all cases allowed at appeal (50 per cent), the credibility of the applicants’ claims was accepted and the negative credibility findings at the initial decision-making were overturned’ (Muggeridge and Maman 2011, 52). Those member states of the European Union that have opted in are required to comply with the Council 2004 Directive on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection (‘Qualification Directive’) and the 2005 Directive on minimum standards on procedures in member states for granting and withdrawing refugee status (‘Asylum Procedures Directive’).1 Neither explicitly detailshow credibility assessments should be carried out. However, they do refer to respecting European Union fundamental rights and principles. The Qualification Directive states that the assessment of an asylum application should be carried out on an individual basis and in cooperation with the applicant, and lists factors to be taken into account. It also states conditions where documentary evidence is not essential, such as where the applicant has made a genuine effort to substantiate her application; all relevant elements at the applicant’s disposal have been submitted, and a satisfactory explanation has been given regarding lack of other relevant elements; the applicant’s statements are found to be coherent and plausible; the applicant has applied for asylum at the earliest possible time or can demonstrate good reason for not having done so; and the general credibility of the applicant has been established (Art. 4(5)). The Asylum Procedures Directive requires that asylum applications are examined and decisions taken individually, objectively, and impartially (Art. 8(2)). Compared to men, women encounter additional hurdles in showing that their asylum claim is credible. Women are more likely than men to have claims based on persecution suffered in the private sphere. Thus, due to the nature of the harm they have suffered, it may be more difficult for women to obtain documentary evidence of the agent of persecution and of their activities and place in society. There are particular difficulties in providing evidence of certain types of harm such as domestic violence or forced marriage. In cases of imputed political opinion, some women may not have the information requested by the decision-maker to evidence their claim. It is also more difficult to access country of origin information on the status and treatment of women (Querton 2012, 37). Women who have been through the asylum system themselves also raise credibility as a key concern. When asked about their priorities, 100 women who had been or were going through the asylum system in the United Kingdom, unanimously agreed on the issue of not being believed and identified credibility in decision-making as a priority (Bradford Refugee Forum). Credibility is an issue for both men and women when they claim asylum. This chapter considers why credibility has a disproportionate impact on women’s claims. To illustrate this it provides an analysis of the most recent research demonstrating how credibility is dealt with when women claim asylum in Europe, with a particular focus on the United Kingdom.