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Briefing: how lawyers can help young people in the asylum system

Briefing: how lawyers can help young people in the asylum system

Claiming asylum can be a traumatic experience. Having to relive the worst events in your life while you undergo a series of interviews and hearings is bad enough. It is even worse when Home Office officials are highly sceptical about a young person’s account, based on a selective or mistaken understanding of country evidence, events, and young people’s cultural and family backgrounds. When the other significant adults in young people’s lives, such as lawyers, social workers and foster carers, are not supportive, it compounds the suffering.

This post focuses on how poorly the asylum system often treats young people — those who are children, and those who arrived as children but are now over 18 — and how the adults in their lives can help to make it better. It covers issues of credibility, important case law on young people seeking asylum and a couple of specific issues affecting children that have come up recently. But it is not legal advice. Anyone who is affected by the legal issues raised in this article is encouraged to get timely legal advice from a solicitor or regulated immigration adviser who specialises in the relevant area of law.

Asylum and “credibility”

The Home Office often relies on “inconsistencies” to discredit a person who is seeking asylum. Most people seeking asylum have to tell their story several times – at their screening interview, at their asylum interview, to their solicitor when preparing a witness statement, and again when they give evidence at their appeal hearing. They may also have to tell their story to other professionals outside the immigration system, such as to social workers in the context of an age assessment. Sometimes the Home Office argues that a person’s account has not been consistent between their screening interview, their asylum interview, their witness statement, and/or their evidence at the hearing. Sometimes they argue that a person’s account is not “plausible” in light of how they would be expected to act in a particular situation. Sometimes they argue that a person’s account is not consistent with “background country evidence” about the country they come from.

These arguments are commonly used by the Home Office. But there are many problems with the arguments. For instance:

Human memory is fickle

Researchers studying human memory have shown that it is very difficult to remember information like what date something happened, how long it took, or what order things happened. The UNHCR says that “psychological research has consistently shown that memories of even the most important, traumatic, or recent life events can be difficult to retrieve and recall with any accuracy. Inconsistency, loss of detail, and gaps in recall are a natural phenomenon of the way a person records, stores, and retrieves memories.” Cameron (2010) summarises a large amount of research on the same issue. (Unfortunately this paper is not available for free but the UNHCR paper already mentioned summarises the main conclusions.)

Trauma profoundly affects memory

The effects of trauma, including post-traumatic stress disorder (PTSD), can affect our ability to remember and describe things. Traumatic memories are different from normal memories. Herlihy and Turner (2013) explain:

When recounting a normal event, we are able voluntarily to retrieve a verbal narrative, with a beginning, middle and end, and a sense of being in the past. This narrative is updateable, as described above, should new information become available. However, traumatic memory has some quite different attributes. This is a sensory ‘snapshot’ of the traumatic moment – perhaps just the sound of screams, the image of a face, or a feeling of pain; it is without narrative structure and, crucially, does not have a sense of being in the past but is ‘re-experienced’, as if it were happening in the present… They are not voluntary, as normal memories, but triggered, by internal or external cues (such as the sight of someone in uniform, a pain, or a feeling of guilt). [Paper available for free via the Centre for the Study of Emotion and Law]

“Overgeneral” memory is also associated with depression and PTSD, which can make it harder to remember specific past events in your life. Other problems associated with depression, like poor sleep, can make it harder to think and concentrate.

Children and adults remember differently…

Children’s memories work differently from adults’ memories. As Given-Wilson et al observe

Younger adolescents typically recount memories with factual content and action statements – the ‘who’ and ‘what’ of a story. However, their memories may have less orientation in time and place, fewer emotions and interpretations or causal accounts (i.e. explanations of someone’s actions) compared to older adolescents… It appears that the ‘when’ and ‘why’ are later developments in autobiographical memory. [Paper available for free via the Centre for the Study of Emotion and Law]

This is, of course, compounded when a person has suffered traumatic experiences during their childhood.

…and think differently

Children often think differently from adults. Given-Wilson et al highlight that

young adolescents think in a concrete way – basing their thoughts on facts, their own experiences and inductive reasoning, and that “explanations of events which appear shallow or implausible to an adult may be a reflection of a concrete and inductive thinking.

They also say that

children adhere to rules and social codes without considering potential consequences. For example, they are more likely to obey an authority figure regardless of the outcome… Adolescents are particularly susceptible to social and emotional influences (i.e. peer influence, risk taking) because they have not mastered emotional regulation or impulse control.

So when the Home Office claims that a young person’s story is not “plausible” because it would have expected the young person to act in a different way in a given situation, it often fails to take into account the different ways that children think and act.

Cultures matter

People also act differently in different cultures. When the Home Office says that a young person’s story is not “plausible”, they are often viewing it through the lens of British culture, without a good understanding of how people behave in the country from which the young person comes. The courts have recognised that judges should be cautious about making findings based on “inherent plausibility” (see HK (Sierra Leone) [2006] EWCA Civ 1037 at [27]-[30]).

Asylum seekers are not used to recounting their story

The narration expected in the asylum process is generally outside the experience of many asylum seekers. Young people with limited education, from close rural, family or ethnic communities are likely to have had limited experience ordering facts about their lives or describing their fears and emotions to strangers. There is limited understanding concerning the skills needed for active, fair participation in the asylum process and little if any consideration/patience/tolerance accorded to those manifestly finding the process very difficult.

People smugglers interfere

Young people can be particularly susceptible to the controls and coaching of immigration agents. Agents can blight a young person’s chances by encouraging them to withhold information, give false identities or accounts or destroy their documents or erase phone messages.

Problems with screening interviews

The screening interview is not normally audio-recorded, so the accuracy of the interpretation cannot be checked later, and it is common for screening interviews to be conducted with a telephone interpreter who may not speak the right dialect. Even good interpreters make mistakes when interpreting quickly. During the screening interview a person is told to “briefly” describe “all” the reasons they are claiming asylum – some people seeking asylum have described being cut off when they started to describe their claim in detail, and yet they are criticised later for not giving enough detail. Some of the problems with the screening interview process were acknowledged by the Court of Appeal in JA (Afghanistan) [2014] EWCA Civ 450.

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In adults’ claims, the screening interview may be conducted on the same day they arrive, when they may be exhausted, frightened and confused and are unlikely to have had any legal advice. For children, the process is supposed to work differently – the correct practice is to conduct only a “welfare interview” with the child at which they are not supposed to be asked questions about the substance of their claim. The screening interview for a child comes later, and the child is supposed to be accompanied by an appropriate adult at the screening interview. The Court of Appeal judgment in AN and FA [2012] EWCA Civ 1636 is important reading for practitioners. See also the Home Office policy on children’s asylum claims: .

However, this does not solve the fundamental problems with the screening process, even when correct practice is followed. Interpreter errors are still likely; children may still be frightened, confused, and/or influenced by traffickers; and an appropriate adult is unlikely to be able to identify when the interpreter is making mistakes. Ultimately, both children and adults are affected by the lack of a reliable record of the screening interview.

Problems at the main interview

Unlike the screening interview, the main asylum interview can be audio-recorded when the person or their solicitor requests it. But not all solicitors are aware that they should make this request, or that they can get an interpreter to listen to the recording and check the interpretation. When this is done, it is often apparent that many of the “inconsistencies” relied on by the Home Office are in fact mistakes by the interpreter. Mistakes by the court interpreter can also happen at the hearing, and it is unusual for the person to have their own interpreter in the court room who can check the accuracy of the court interpreter’s interpreting.

Problems with country evidence

The Home Office often relies on unreliable or out-of-date “country background evidence” which the decision-maker has found on the internet. It is always important for the young person’s lawyer to check all of the claims that the Home Office makes in the refusal letter – often they are inaccurate and can be disproved with a little research.

Officials simply getting it wrong

Sometimes, the Home Office also gets the law wrong. For example, it is common to see refusal letters where the Home Office claims that it does not need to consider the risks that a child would face in their home country as a child, because the child will not actually be returned until they are over 18. This is unlawful – an asylum appeal is supposed to be decided on the basis of what would happen if the child were returned now, not what might happen if they were returned in the future (see Saad, Diriye and Osorio [2001] EWCA Civ 2008 and ST (Child asylum seekers) Sri Lanka [2013] UKUT 292).

Sources of law on the vulnerability of children

It is important that the lawyers working with young people seeking asylum be aware of all the issues described above. In particular, lawyers – and all other professionals working with young people – need to be aware that trauma and emotion can have a major effect on a young person’s ability to cope with the asylum process. It is also important to understand that a person with depression, anxiety and/or PTSD will not always look or sound distressed. In the past judges would sometimes make assumptions about whether someone was telling the truth based on their “demeanour” – how they looked and sounded when giving their evidence – but this practice is unreliable, and judges have been warned against it (see SS (Sri Lanka) [2018] EWCA Civ 1391 and Tilki [2002] UKIAT 06015).

It is always important, where there are signs that a young person has mental health problems (such as PTSD, depression or anxiety) or learning difficulties, for the lawyer to get a detailed report from a psychiatrist or psychologist who is trained in working with young people. This can help the tribunal judge to understand whether the young person is able to give evidence in court at all, and if they are, what steps can be taken to help them to give their evidence (such as avoiding certain topics and/or asking non-leading questions). It can also support the young person’s asylum case in other ways. For instance, the psychiatrist or psychologist may be able to express a view that the young person is suffering from PTSD which is consistent with the traumatic events they have described.

The Home Office will sometimes argue that a person is inventing or exaggerating their mental illness and that the psychiatrist or psychologist has simply accepted what the person has said to them. But this is a misunderstanding of the expert’s role. The Istanbul Protocol – the United Nations standards for documenting torture – says at paragraph 290:

The investigator must always be aware of these possibilities and try to identify potential reasons for exaggeration or fabrication. The clinician should keep in mind, however, that such fabrication requires detailed knowledge about trauma-related symptoms that individuals rarely possess.

The psychiatrist or psychologist should always explain clearly how they have come to their conclusion. They need to show that they have considered the possibility that the person is inventing or exaggerating their mental illness, and explain why they do not think this is likely. See the important guidance from the Upper Tribunal in JL (medical reports-credibility) China [2013] UKUT 145 (IAC) and from the Court of Appeal in SA (Somalia) [2006] EWCA Civ 1302. Unfortunately, the recent Court of Appeal case of KV (Sri Lanka) [2017] EWCA Civ 119 (which is currently being appealed to the Supreme Court) says some less helpful things.

The Court of Appeal has given important guidance on how tribunal judges should deal with vulnerable people seeking asylum. It is important that everyone working in the field should read the case of AM (Afghanistan) [2017] EWCA Civ 1123, as well as the Tribunal’s own Presidential Guidance Note No. 2 of 2010.

Litigation friends

An issue which has come up recently is whether children seeking asylum should have, or be permitted to have, a “litigation friend” in the tribunal. In the civil courts, where a person does not have capacity to make decisions about their case, a “litigation friend” can be appointed who makes the decisions on their behalf. In the civil courts, litigation friends are normally appointed for children, and for some people with serious illnesses or disabilities who are not able to make decisions on their own behalf. Where a person does not have a friend or family member who can fulfil this role, the Official Solicitor can do so.

It used to be that there was no provision for litigation friends in the immigration tribunal at all. However, in 2016 the High Court decided that it was possible to appoint a litigation friend in the immigration tribunal, and litigation friends are now sometimes appointed for people with serious illnesses who do not have capacity. There are some difficulties because there is currently no official guidance from the Tribunal as to who should act as a litigation friend, and the Official Solicitor does not have funding to act in the immigration tribunal. One question that has come up is whether all children who are appealing immigration decisions should now have a litigation friend. This has never been the general practice. The Court of Appeal suggested in AM (Afghanistan) that local authority social workers could make decisions about the appeal on a child’s behalf – but this suggestion cannot be a good one, considering that social services’ interests are sometimes in conflict with those of the child (for example, when there is an age assessment with which the child does not agree).

Verification checks

Another major problem – which particularly affects Albanian and Sri Lankan people seeking asylum – is that the Home Office sometimes gives information about the person to the authorities of their home country in order to carry out “verification checks” into their asylum claim. This practice would seem to be a serious breach of the obligation of confidentiality (under Article 22 of the EU Procedures Directive). The recent Upper Tribunal decision in PA (protection claim: respondent’s enquiries; bias) Bangladesh [2018] UKUT 337 (IAC) allows the Home Office to do this, within certain limits – but it does accept that it is unlawful for the Home Office to make enquiries “in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant’s (or his family’s) physical integrity, liberty or security.”

In my view, “directly informed” should be understood to include situations where the purpose of the enquiry is plainly obvious to the authorities in the country of origin, such that those authorities have obviously become aware that an asylum claim has been made. For obvious reasons, it is very hard for a person to tell their story to the Home Office when they cannot be sure that the fact that they have claimed asylum will be kept confidential from their own country’s authorities. This is equally true where the claim is based on fear of “non-state actors” rather than the authorities. Where children are at risk from their families or communities and cannot succeed in their claims unless they also show that the government is unable or unwilling to provide effective protection for them against the feared persecution, it is clear that governments are always an agent in the feared persecution  and have an interest and incentive to downplay risk and embellish their protection arrangements.

Conclusion

Young people seeking asylum alone are vulnerable in multiple ways. Many have already suffered severe trauma in their home countries and/or on their journeys, coupled with the stress of separation from home and family and of being alone in an unfamiliar country. Often, they are left with little support when navigating an immigration system which can be callous and hostile. It is essential that the adults in their lives – solicitors, barristers, social workers, foster carers and others – should understand what they are experiencing, and do everything we can to support them through the asylum process. Everyone who works with young people seeking asylum needs to have a good understanding of the many factors which may inhibit a young person’s ability to tell their story – trauma, depression and anxiety, differences of language and culture, fear and confusion, and the ordinary fallibility of children’s memories, among others. In short, mental health literacy is essential for all those working in this field.

I would like to thank Kathryn Cronin of Garden Court Chambers and Esme Madill of the Shpresa Programme and Islington Law Centre for their assistance with this article. It is an edited version of a longer paper delivered at a recent Garden Court immigration seminar, which can be downloaded here.

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David Neale is a legal researcher at Garden Court Chambers. He was a practising barrister from 2014 to 2018, specialising in immigration and asylum law.

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