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Windrush cases and the standard of proof: moving the goalposts

Windrush cases and the standard of proof: moving the goalposts

What is the standard of proof for immigration applications?

Both lawyers and non-lawyers are entitled to find that question baffling.

Non-lawyers because it’s jargon, but the standard of proof basically means: how sure does the Home Office have to be before it accepts that someone is entitled to a visa, say, or to stay in the UK? In deciding whether somebody is a genuine refugee, for example, the standard of proof is “a reasonable degree of likelihood”. By contrast, juries in a criminal case have to be “sure” before they convict (the more famous phrase “beyond a reasonable doubt” means the same thing).

Immigration lawyers would find the question puzzling for a different reason. The standard of proof in immigration cases is the balance of probabilities, also known as the “civil standard”, which means “more likely than not” or that “there is more evidence in favour of one decision than the other“.

Everyone knows that. All right, there’s no definitive statement of this that applies across the board — which may well be part of the problem here given the slavish adherence of Home Office civil servants to guidance — but balance of probabilities is the standard for immigration decisions of all kinds, from British citizenship to entrepreneur visas to refusal of entry.

Cut to the House of Commons yesterday, where the Home Secretary was addressing the Windrush scandal. Much to the surprise to those of us who thought we had been trying to convince the Home Office on the balance of probabilities for our entire careers, Amber Rudd said this:

My officials are helping those concerned to prove their residence and they are taking a proactive and generous approach so they can easily establish their rights.

We do not need to see definitive documentary proof of date of entry or of continuous residence. This is why the debate about registration slips and landing cards is misleading. Instead the caseworker will make a judgement based on all the circumstances of the case and on the balance of probabilities.

Previously the burden of proof on some of the Windrush generation to evidence their legal rights was too much on the individual. And now we are working with this group in a much more proactive and personable way in order to help them.

To immigration lawyers, this is a bit like FIFA announcing that, as a special favour to the England team at the World Cup, balls kicked into the net will now count as a goal. If caseworkers are only now going to make decisions on the balance of probabilities, what the hell were they doing before?

We’ve asked the Home Office, and were told that it had nothing to add to this genuinely bizarre statement.

Now, this wouldn’t be the first time that caseworkers have been found to apply a standard of proof that is too harsh. The charity Freedom from Torture found in a 2016 report that “100% of cases in the research, on the face of it, involve the asylum caseworker failing to apply the appropriate standard of proof to establish a past history of detention and torture”.

Those interested in the history of these things might want to take a look over this thread:

Nor, upon reflection, would it be altogether shocking if the Home Office setting the bar too high were partway responsible for the fact that half of all appeals against its decisions now succeed in the First-tier Tribunal. In my own cases we often end up winning in the tribunal — which absolutely operates on the balance of probabilities — on evidence that had already been considered but rejected by the Home Office. Applying the wrong standard and failing to apply common sense leads to decisions being overturned on appeal, but at considerable cost to the Home Office, the Ministry of Justice and the individual migrant.

Here’s the rub. If deciding Windrush cases on the balance of probabilities is a concession — if it represents a genuine change of approach — then clearly civil servants are routinely applying the wrong standard of proof in immigration decisions. On the other hand, if they are working off the balance of probabilities, then to say that will be the test in Windrush cases changes nothing.


Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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