The new standard of proof in asylum claims: a major step backwards for LGBTQI+ asylum seekers

In this blog I argue that the imminent change to the standard of proof in asylum claims risks imposing unreasonable expectations on LGBTQI+ asylum seekers and will make it more difficult for them to demonstrate their entitlement to refugee status.
 

Shrugging off the House of Lords’ amendments to the Bill, the government successfully pushed through the Nationality and Borders Act 2022.

The Act introduces a host of drastic changes to the asylum system in the UK, and some threaten to disproportionately impact certain groups including LGBTQI+ asylum seekers whose claims are at least partly based on their sexual orientation.

The existing standard of proof: a low threshold and a holistic approach

The present standard of proof in asylum claims – that is, the degree to which an asylum seeker must prove their claim – is low. The very high standard of proof in criminal law is a familiar term – beyond reasonable doubt – which means something close to certainty. Beneath this is the civil standard of the balance of probabilities, which is tantamount to “more likely than not.” The standard in asylum claims is lower still: a reasonable degree of likelihood, or “real risk”. This has been compared by the Court of Appeal to a one in ten chance.

In its existing caseworker guidance on assessing credibility in asylum claims, the Home Office itself recognises that the standard of proof is low “because of what is potentially at stake – the individual’s life or liberty – and because asylum seekers are unlikely to be able to compile and carry dossiers of evidence out of the country of persecution.” This reflects the Supreme Court’s position, which is that the balance of probabilities “is not an appropriate test” where life or liberty may be threatened. 

The standard is applied holistically to the assessment of the entire claim: demonstrating past experiences, the engagement of a Convention reason, and the future risk of persecution. This is in recognition of the difficulties that decision-makers have keeping those aspects separate, since in practice they will almost always overlap to some degree. 

The new standard of proof: a higher threshold and a two-stage assessment

From 28 June 2022, the Act will introduce a new standard of proof. Section 32 creates a two-stage assessment, each with its own threshold.

First, the decision-maker will need to determine on the balance of probabilities whether the asylum seeker has a characteristic which could cause them to fear persecution for a Convention reason (i.e. race, religion, nationality, membership of a particular social group or political opinion), and whether the asylum seeker fears persecution as a result of having that characteristic.

Second, the decision-maker must then determine whether there is a reasonable degree of likelihood that the asylum seeker would be persecuted on return to their country of nationality and would not receive protection from the state. 

The existing problem in sexual orientation claims

At the time of writing, LGBTQI+ asylum seekers whose claims are based on their sexuality must demonstrate that there is a reasonable degree of likelihood that they will face persecution because of their sexuality. As part of this assessment, the decision-maker must be satisfied that there is a reasonable degree of likelihood that they have the sexual orientation they claim to have.

Despite this low threshold, and publishing caseworker guidance on the specific issue of assessing asylum claims involving sexual orientation, in practice it has been commonplace for the Home Office to expect a level of corroborative evidence and a specificity of narrative that indicates the higher civil standard of proof is being applied. This can take the form of, for example, asking unnecessarily intimate questions in asylum interviews, employing reasoning in refusal decisions that displays a rigid understanding of sexual relationships, and unfairly criticising the absence of witness evidence by sexual partners.

In 2018, the Rainbow Project (then UKLGIG) published a commonly-cited report titled ‘Still Falling Short,’ which provided an in-depth review of the Home Office’s approach to claims involving sexual orientation. The report found general improvements at the time, but expressed concern about the Home Office’s practice in credibility assessments in particular, “where expectations of LGBTQI+ claimants seem to require demonstrating a higher standard of proof than reasonable degree of likelihood”, which is “reflected in the search for corroboration as well as in excessive reliance on delay” and “unrealistic expectations in relation to what a credible narrative of an LGBTQI+ asylum seeker should contain.”

How will the changes in the Act impact these claims?

The new standard of proof will require LGBTQI+ asylum seekers to first satisfy the Home Office of their sexual orientation on the balance of probabilities. Leaving aside the involuted task of separating the assessment into two distinct stages, this essentially sanctions what until now has been criticised as a flawed approach to these claims. It will have important consequences both for their conduct and outcomes.

We are likely to see a resurgence of probing and intimate questions during asylum interviews, including more detailed discussion of traumatic experiences, as interviewers will feel there is a heightened need to test narratives. Decision-makers will likely expect to see more sensitive documentary evidence and witness statements disclosing intimate relationships.

It bears mentioning here that section 18 of the Act introduces “evidence notices” - requests for the provision of specified evidence before specified dates. Failure to adhere to these without “good reasons” (the term is not defined in the Act) will lower the weight afforded to any late evidence and will damage overall credibility. With what we know about the evidential and disclosure difficulties in claims by LGBTQI+ people, it is safe to assume that they will be among the groups that are most likely to fall foul of this new system.

Since the enhanced standard of proof has been placed on a statutory footing, immigration judges must also apply it. This shift will be even more conspicuous, since historically the lower standard of proof has been better adhered to in the tribunals. In addition to the higher evidential expectations described above, there will likely be more intrusive cross-examinations and questioning by Home Office Presenting Officers and judges respectively.

These changes represent a major step backwards for LGBTQI+ asylum seekers. They will make the asylum process even more gruelling, and we can expect to see a higher proportion of refusal decisions and appeal dismissals as decision-makers and judges get to grips with applying the new standard. Sadly, it seems inevitable that there will be LGBTQI+ refugees whose claims are unsuccessful under the new standard that would have been successful under the previous one.