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When is a refugee not a refugee?

When is a refugee not a refugee?

You might be forgiven for thinking that when the United Nations High Commissioner for Refugees has already recognised an individual’s status as a refugee, national decision-makers would ordinarily follow suit. After all, UNHCR has unmatched expertise in refugee status determinations, and its determinations are normally made closer in time and place to the events giving rise to the fear of persecution.

However, the Supreme Court in IA v Secretary of State for the Home Department [2014] UKSC 6 decided that there is no presumption that UNHCR’s decision should be followed unless shown to be wrong, that there is no burden of proof on the state authorities to establish that the UNHCR decision is wrong and that UNHCR’s decision is not even a starting point. The Supreme Court dismissed the appeal of IA, an Iranian national, who had twice been recognised by UNHCR as a refugee (first in Iraqi Kurdistan in 1998 and then in Turkey in 2003) against the Secretary of State’s rejection of his asylum claim.

UNHCRBut the judgment is not all bad. The Supreme Court did hold that the national decision-maker is required to pay close attention to the UNHCR decision and to take a “considerable pause” before arriving at a different conclusion, and that substantial countervailing reasons are required to justify a different conclusion.

The Supreme Court also stated that where the possible rejection of an asylum claim rests solely on credibility, if the claimant has UNHCR refugee status, his claim should generally not be rejected unless his credibility is undermined by information from a source other than his own account. In IA’s case, there was information challenging his account that came from “extraneous” sources, including from his own witness at his asylum appeal hearing. The Supreme Court held that once the Immigration Judge had sufficient reasons from external sources to question the reliability of the Appellant’s account, she was entitled, indeed bound, to consider the internal inconsistencies in his own account.

Part of the problem for domestic decision-makers, as well as individuals and their representatives, has been the general failure of UNHCR to release information about how it reached its decisions. While the fact of a UNHCR grant is known, the reasons for the grant are generally not. Fortunately, UNHCR is now reviewing whether to release documentation when requested by individuals. The Supreme Court emphasised that it would particularly assist if the basis for the decision is disclosed, if nothing else.

The facts of IA illustrate why disclosure by UNHCR can be of assistance. The Immigration Judge found against the Appellant, partly because he had failed to mention in his first asylum statement matters that he mentioned in his second statement. Subsequent to her decision, UNHCR disclosed its 2003 record of interview with IA, in which he had mentioned these matters. The Supreme Court held that it was open to the Judge, on the material before her, to reject IA’s claim for asylum, but suggested that he use the disclosed interview record to submit a fresh claim under rule 353 of the Immigration Rules.

The lessons for individuals with UNHCR refugee status and their representatives are two-fold. First, and perhaps slightly counter-intuitively, extra care should be taken before relying on material extraneous to the claimant’s account: if there is no inconsistent extraneous material, the credibility of the claimant’s account cannot generally be challenged. Secondly, a claimant should seek disclosure from UNHCR of the basis of its grant of refugee status. It is hoped that such information will be more forthcoming than in the past. Indeed, individuals still in the UK whose asylum claims have been refused would be advised to seek disclosure from UNHCR and potentially use this information to submit a fresh claim under rule 353.

A curate’s egg of a decision, then.

Richard Reynolds

Richard has a broad public law, human rights and equality law practice. He advises and acts in all aspects of asylum and immigration law, including immigration detention and bail, asylum, deportation, British citizenship and EU law.

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