Asylum caselaw - main principles Flashcards
Sivakumaran [1988] 2 WLR 92
Standard of proof – benefit of the doubt (lower standard than civil or criminal proceedings)
Sieving
Ravichandran [1996] Imm AR 97
Well-founded fear of persecution –
“reasonable degree of likelihood” or
“substantial grounds for believing” or
“real risk”
[Ra- reasonable; real risk]
Karanakaran [2000] Imm AR 271
An asylum claim may succeed even if the decision maker doubts part of the account.
[Doubt what Karens say]
After Sivakumaran, two strands of judicial thinking emerged. In one, the whole standard of proof applicable to establishing past facts and future risk was thought to be encapsulated in the various “reasonable degree of likelihood” phrases. In the other, it was thought that this lower standard of proof applied only to the assessment of future risk, and that the normal civil standard of proof applied to establishing past facts.
The Court of Appeal favoured the former view in Karanakaran [2000] EWCA Civ 11. A single, lower test for risk — reasonable degree of likelihood — was preferred, informed by an administrative rather than judicial mode of fact-finding.
As Lord Justice Sedley pointed out:
The civil standard of proof, which treats anything which probably happened as having definitely happened, is part of a pragmatic legal fiction. It has no logical bearing on the assessment of the likelihood of future events or… the quality of past ones.
Adimi [1999] EWHC Admin 765
Prosecution of asylum seekers who transited through the UK with false documents to seek asylum in the USA or Canada. Article 31 defence. No absolute requirement
to apply in first safe country. Protection from prosecution was incorporated into UK law with s.31 of
the Immigration and Asylum Act 1999. Following the end of the Brexit transition practitioners should
expect to see greater use by the Home Office of the first safe country provisions of the Immigration
Rules 345A–D.
Adan [1998] 2 WLR 702
Persons fleeing civil war must show “a differential impact” – individual risk. [for refugee status]
[Dad diffident in Aden.]
Horwath [2000] UKHL 37
State protection in cases of persecution from non-state agents.
“In order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection”
Protection against wrath
HJ Iran [2010] UKSC 31
Discretion
Where a person would in future refrain from behaving in a way that would expose them to danger because of the risk of persecution that behaviour brings, that person is a refugee.
Shah and Islam [1999] UKHL 20
Women in Pakistan as particular social group (PSG). Persecution cannot define membership of a social group. Group must be identifiable independently from
persecution.
[Shah - she - PSG]
Skenderaj [2002] EWCA Civ 567
Blood feud in Albania. A family can be a PSG
Fornah [2005] EWCA Civ 680
Female genital mutilation (FGM) in Sierra Leone. Women who did not have FGM are a PSG.
[F - FGM]
SB Moldova [2008] UKAIT 00002
Former victims of trafficking, women, children or men are capable of being members of a PSG.
[Trafficking in Moldova; SB rhymes with PSG]
AH Sudan [2007] UKHL 49
Internal relocation. Unduly harsh is a stringent test (also on the topic AA Uganda [2008] EWCA Civ 579, where the appeal was allowed).
[Anduly Harsh; S-udan, S-tringent]
JT Cameroon [2008] EWCA Civ 878
Section 8 of the Treatment of Claimants Act 2004. Credibility.
The authorities can consider the applicant’s behaviour in determining credibility (failure to comply, lateness of claim, conceal information, etc.)
[Camer8n; s8; C-ameroon c-redibility]
Razgar [2004] UKHL 27
Assessment of Article 8 in the context of the removal of foreign nationals to their country of origin.
Five steps, Article 8 ECHR
ZH Tanzania [2011] UKSC 4
Best interest of the child is “a primary consideration”.
[Z last letter, primary consideration]
