CRITERIA FOR ASSESSING COUNTRY OF ORIGIN …

[Pages:21]JUDICIAL CRITERIA FOR ASSESSING COUNTRY OF ORIGIN INFORMATION (COI): A CHECKLIST

Paper for 7th Biennial IARLJ World Conference, Mexico City, 6-9 November 2006

by members of the COI-CG Working Party

The COI-CG1 Working Party wishes to commend to all members of the Association the following "COI Judicial Checklist": see page 3. Although we hope this checklist and accompanying Explanatory Memorandum (see pp.421) will be of general interest, its primary aim is to furnish a guide to judges2 in cases where they face having to assess Country of Origin Information (COI) in the context of deciding asylum or asylum-related appeals.

The Checklist is the result of 18 months of deliberations involving the efforts of a considerable number of people with knowledge in this area. The following are current members of the COI-CG Working Party: Hugo Storey (Rapporteur, UK), Bostjan Zalar (Deputy Rapporteur, Slovenia), Graham Davies (UK), Bernard Dawson (UK), Nigel Osborne (UK), John Barnes (UK), Dallal Stevens (UK), Anna Bengtsson (Sweden), Patrick Hurley (Ireland), Rory McCabe (Ireland), Vaclac Novotny (Czech Republic), Manoj Kumar Sinha (India), James Simeon (Canada), and Hannah Lily (Assistant to the Rapporteur, UK). The following are those who attended the June 2006 London Roundtable, which was devoted to debate on earlier versions: Mark Ockelton (Senior Immigration Judge and Deputy President, Asylum and Immigration Tribunal, UK (Chair)), Oldrich Andrysek (Department of International Protection, UNHCR), Chris Attwood (Country of Origin Information Service, Home Office, UK), John Barnes (Former Senior Immigration Judge, UK), Chantal Bostock (Legal and Research Unit, Asylum and Immigration Tribunal, UK), John Bouwman (Judge, Holland), Eamonn Cahill (Judge, Refugee Appeals Tribunal, Ireland), Jane Coker (Immigration Judge, UK), Heaven Crawley (Senior Lecturer, Swansea University, UK), Steve Crawshaw (Human Rights Watch, UK), Alice Edwards (Amnesty International), Mark van Elzakker (Immigration Service, Holland), Jonathan Ensor (Immigration Advisory Service, UK), Professor Anthony Good (Edinburgh University), Mark Henderson (Barrister and representative of Immigration Law Practitioners Association, UK), Catriona Jarvis (Senior Immigration Judge, UK), Andrew Jordan (Senior Immigration Judge, UK), Hannah Lily (IARLJ Working Party Assistant and British Refugee Council, UK), Nigel Osborne (Immigration Judge, UK), Ilkka Pere (Justice, Supreme Administrative Court, Finland), Professor Terence Ranger (St Antony's College, Oxford University), John Ryan (Judge, Refugee Appeals Tribunal, Ireland), Hugo Storey (Senior Immigration Judge, UK), Nick Swift (Advisory Panel on Country Information (Secretary), UK), Mark Symes (Barrister, UK), Patrice Wellesley-Cole (Immigration Judge, UK) and Bostjan Zalar (Judge, Slovenia). The Working Party wishes to pay particular thanks to Allan Mackey (immediate Past President of the IARLJ) who co-wrote the original version of the paper and presented it to the

1 The Country of Origin-Country Guidance Working Party. 2 The term "judges" or "refugee law judges" is used here to cover all types and levels of judicial or quasi-judicial decision-makers regardless of whether they deal with asylum or asylum-related cases regularly or only occasionally.

1

November 2005 IARLJ European Chapter Budapest Conference, Alice Edwards of Amnesty International whose paper, "Amnesty International's Comments on Hugo Storey & Allan Mackey, 'In Search of Judicial Criteria for Assessing Country of Origin Information'", was also presented to the same Budapest Conference and Barbara Svec of ACCORD who wrote specific a commentary on a revised draft of the Storey/Mackey paper, "ACCORD Comments on Hugo Storey & Allan Mackey, 'In Search of Judicial Criteria for Assessing Country of Origin Information'", for the June 2006 London Roundtable. A particular debt is also owed to Hannah Lily, Bostjan Zalar, Andrew Grubb and Andrew Jordan for their assistance with the final stages of revision, albeit ultimate responsibility for any shortcomings is mine. Thanks are also due to Geoffrey Care, Bernard Dawson and John Barnes who contributed their ideas at various stages.

Hugo Storey (Rapporteur) on behalf of the COI-CG Working Party October 2006.

*****

2

COI JUDICIAL CHECKLIST

When assessing Country of Origin Information (COI) in the context of deciding asylum or asylum-related cases judges may find the following 9 questions useful:

Relevance and adequacy of the Information i) How relevant is the COI to the case in hand?

ii) Does the COI source adequately cover the relevant issue(s)?

iii) How current or temporally relevant is the COI?

Source of the Information iv) Is the COI material satisfactorily sourced?

v) Is the COI based on publicly available and accessible sources?

vi) Has the COI been prepared on an empirical basis using sound methodology?

Nature / Type of the Information vii)Does the COI exhibit impartiality and independence?

viii) Is the COI balanced and not overly selective?

Prior Judicial Scrutiny ix) Has there been judicial scrutiny by other national courts of the COI in question?

3

COI JUDICIAL CHECKLIST: EXPLANATORY MEMORANDUM

1. In the course of dealing with asylum appeals judges3 will depend to a great extent for their ability to make sound judgments on having before them up-todate and reliable country background information or "Country of Origin Information" (COI)4. The probative value of an asylum seeker's evidence has to be evaluated in the light of what is known about the conditions in the country of origin5. The demands on the judge are huge. Sometimes within a very short period he6 may be called on to decide cases of claimants from several different countries. He may be expected to decide at one moment on whether an asylum seeker is a member of a sub-clan of a minority clan based in Mogadishu, Somalia and also to determine whether that clan is without effective protection. At another moment he may be asked to assess whether a member of the former communist government of Afghanistan would be at risk from the current Northern-Alliance-based regime. He may have to decide whether a Chaldean Christian from Northern Iraq would be at risk from Muslim extremists. In a rapidly changing world he may need to decide whether a Tamil member of the LTTE from Northern Sri Lanka would today face a risk of persecutory harm from the authorities in the light of renewed clashes between government troops and LTTE militias. Faced with diverse cases and shifting political scenarios, judges desperately need accurate and reliable information in order to determine justly who is in need of international protection.

2. COI is evidence the judge should take into account. It is a crucial aid. But it will rarely be determinative. How much it will help the judge determine the individual case will vary depending among other factors on the extent to which the claimant`s case is based on personal characteristics or circumstances which he shares with others similarly situated. COI may not be relevant to the same degree in every case7.

3. For a judge making findings on country conditions is not an end in itself: indeed it is not his function to pass judgment on the human rights performance of other countries8. He is only required to make a finding on a

3 The term "judges" or "refugee law judges" is used here to cover all types and levels of judicial or quasi-judicial decision-makers regardless of whether they deal with asylum or asylum-related cases regularly or only occasionally. 4 COI has been defined as "[a]ny information that should help to answer questions about the situation in the country of nationality or former habitual residence of a person seeking asylum or another form of international protection". See Barbara Svec of the Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Vienna, in presentation to the IARLJ November 2005 Budapest Conference. 5 1979 UNHCR Handbook para 42: "...The applicant`s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation. A knowledge of conditions in the applicant's country of origin - while not a primary objective - is an important element in assessing the applicant's credibility". 6 "He" is used throughout to cover both the masculine and the feminine gender. 7 See paper by Alice Edwards, op.cit.: "AI also reiterates that country of origin information alone cannot foresee the range or types of abuses that a particular individual may suffer in a given context and so cannot be relied upon to the same degree in every case". 8 1979 UNHCR Handbook, para 42.

4

particular case. Nevertheless, within that context sometimes general findings as to country conditions must of necessity be made.

4. Conversely, it is not an end in itself for most bodies who produce COI to assist refugee decision-makers: usually their aim is to provide an analysis for general circulation of a country`s human rights performance or some related aspects. That has perhaps the advantage from the point of view of the judge that it cannot be suggested the COI has been "tailored" for use in supporting asylum appeals.

5. In recent years a number of states who are signatory to the Refugee Convention have written in to their national law specific provisions as to how decision-makers (including judicial decision-makers) are to approach assessment of a person`s asylum claim9. There has also been a major regional initiative within the European Union (EU) designed to harmonise national approaches in this and other respects. From 9 October 2006 all EU Member States except Denmark are bound by the provisions of (and should have transposed into national law) the "Qualifications Directive" i.e. Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. Article 4 of this Directive deals with assessment of facts and circumstances relating to a claim for international protection. Article 4(3) states:

"The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:..."

6. Five matters are then mentioned. The first specifies:

"(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied".

7. This provision highlights the importance of COI to all refugee decisionmakers.

8. Background country materials or COI (Country of Origin Information) will derive from diverse sources, including reference works (maps, encyclopaedia, yearbooks), reports or papers by international bodies (e.g. UNHCR, UN Human Rights Committee), international NGOs (e.g. Amnesty International reports, Human Rights Watch reports, International Crisis Group (ICG) reports), national bodies (e.g. the U S State Department Reports, the Danish Immigration Service reports, the United Kingdom Country of Origin Reports (COIR10), news and media clippings and databases, legal materials (laws,

9 See e.g. s.8 of the Immigration and Asylum Act (Treatment of claimants, etc) Act 2004 (UK). 10 Formerly CIPU (Country Information and Policy Unit) reports. CIPU was formerly part of the Home Office Asylum and Appeals Policy Directorate, but in May 2005 was moved to the government`s Research Development and Statistics (RDS) section. Reports produced by this section are now called Country of Origin Reports (COIR).

5

jurisprudence, etc) and cross-checking of other refugee claims11. Reports can be generic (e.g. US State Department reports), event or group specific (e.g. reports from trials, minority profiles) or claimant specific (e.g. embassy checks). There are a number of databases which are specific to asylum-related work: e.g. UNHCR`s Refworld and ACCORD12.

9. Practices vary as to how COI comes to be placed before judges in asylum and asylum-related cases. Adversarial systems often depend on the parties submitting such materials. Judges in inquisitorial systems may obtain COI by their own initiative, usually with the help of dedicated staff/research units/trained documentalists13. Other systems mix the two approaches and are sometimes able in important cases to hold a preliminary hearing at which the parties are notified of relevant country materials known to the judge(s) and are asked to cover them in their submissions.

10. Another source of COI comes in the form of reports written by country experts who are typically academics, researchers or journalists with considerable experience in the field.

11. Despite the fact that judges are not country experts, they are often faced with having to evaluate country materials in order to make findings, where relevant, on general country conditions, e.g. on whether draft evaders in Eritrea are a risk category or whether ordinary Christian converts are at risk on return to Iran. The judicial focus is always on the individual case, but individual cases can sometimes involve generally occurring facts14. Although he must at all times avoid stereotyping15, the judge may sometimes have to make a finding on what is generally the case in respect of one or more specific "risk categories".

12. The question arises, by reference to what criteria should judges evaluate background country materials?

13. In approaching this question we must seek to build on the very considerable work which has been done, particularly over the past 15 years on developing reliable COI databases. UNHCR together with many other bodies

11 See "Country of Origin Information: Towards Enhanced International Cooperation", UNHCR Feb 2004 (hereafter "2004 UNHCR COI Report"), para 13(iii). 12 Austrian Centre for Country of Origin and Asylum Research and Documentation. For a helpful list, see Elisa Mason, "Guide to Country Research for Refugee Status Determination", Jan 2002, features/rsd2.htm at para 38 gives a useful list of asylum and refugee resources. 13 In Canada the Immigration and Refugee Board (IRB) has a research programme that makes available current, public and reliable information to all parties in the refugee protection determination system. 14 See UK case of Manzeke [1997] Imm AR 524 ( Lord Woolf): "It will be beneficial to the general administration of asylum appeals for Special Adjudicators to have the benefit of the views of a Tribunal in other cases on the general situation in a particular part of the world, as long as that situation has not changed in the meantime. Consistency in the treatment of asylum-seekers is important in so far as objective considerations, not directly affected by the circumstances of the individual asylum-seeker, are involved." See further 2004 UNHCR COI Report para 9: "The information needed to assess a claim for asylum is both general and case-specific". 15 See High Court of Australia case, Applicant NABD of 2002, Case Ref.: [2005] HCA 29 S70/2004.

6

have been in the forefront of efforts to develop proper systems and criteria for COI16. UNHCR sees scope for considerably enhanced international cooperation in the field of COI, particularly at the regional level and is actively co-operating with the European Commission on a number of COI initiatives17. Major country report-writing bodies both at governmental level (e.g. the US State Department reports) and at NGO level (e.g. Amnesty International) have developed their own methodologies for compiling and evaluating COI. But there are particular features of the judicial decision-making role which require us to develop and identify our own criteria. Below we offer a nine-point COI "judicial checklist" which lists in the form of questions, a number of (nonexhaustive), criteria which reflect current best international judicial practice adopted when assessing how much weight can be attached to a particular COI source or reference. There then follows an explanation for each inclusion. It will be obvious that some of these criteria overlap. No single criterion should be treated as decisive. They are grouped under three main sub-headings. Whilst the ordering given is not to be seen as fixed, it is intended to reflect the usual order in which questions relating to the evaluation of COI will normally be raised.

I Relevance and adequacy of the Information

i) How relevant is the COI to the case in hand?

14. Relevancy is an obvious criterion; for the judicial decision maker the primary concern is with information that is legally relevant in the sense of helping to answer case-related questions.

15. Obviously there is little value in background materials that do not bear on the principal country issues that have to be determined. As trite an observation as this may sound, it is remarkable how often judicial decisionmakers find nothing in background country materials directly on the point about country conditions with which they have to grapple. That does not mean that COI found by the judge to be of no or little relevance is not extremely salient in other cases or in other contexts. Relevance of the material is a judgement about the case, rather than the COI.

16. Generally speaking preference will be given to reports whose content relates to asylum-related issues, e.g. which deals with human rights violations and the situation of minorities and displaced persons. The pioneering Evian Report 1990 identified as a key criterion: "Scope ? the main scope of the database would be material describing the human rights situation in countries from where there are refugees coming or likely to come".

ii) Does the COI source adequately cover the relevant issue(s)?

16 See "Country of Origin Information: Towards Enhanced International Cooperation", UNHCR Feb 2004 (hereafter "2004 UNHCR COI Report"). The European Council on Refugees and Exiles (ECRE) in the 4th paper in its Way Forward series entitled "Towards Fair and Efficient Asylum Systems in Europe" suggests as one of the areas of cooperation for EU Member States: sharing of existing country of origin information and coordinated use of joint fact-finding missions. 17 See 2004 UNHCR COI Report, para 7ff.

7

17. One obvious criterion for evaluating the worth of certain types of COI sources is whether or not they give a full or adequate treatment of relevant country conditions/issues. If, for example, there is an issue about the fairness of a country's judicial system, then it is obviously important that the judge should be able to learn from the evidence before him about all relevant factors, relating for example to the national justice system.

18. Given the duty on a judge normally to consider a person's asylum claim in the context of the evidence relating to conditions in the country of origin as a whole, considerable value may be placed on reports that furnish both a detailed overview of conditions in a particular country and particulars about relevant groups and categories (e.g. the position of different ethnic minorities or of vulnerable categories). Thus within the EU judges dealing with cases from Somalia have increasingly begun to have regard to periodic Joint reports drawn up by officials from several EU countries who have conducted a factfinding mission18. The 2004 Joint report contains sections dealing in detail with diverse aspects of Somali affairs: its history, political institutions, legal system, clan structure, the position of vulnerable categories etc.

19. However, the extent to which COI that is both general and particular is required will vary from case to case and over time.

20. Comprehensiveness will obviously not be an appropriate feature to expect of sources that only seek to deal with a specific incident or situation, e.g. a press cutting describing recent arrests of dissidents. But it will be appropriate for reports which purport to give a detailed overview of the general country situation or to deal fully with specific issues. However, just because a report which purports to be comprehensive does not mention a particular event or fact does not necessarily mean it did not happen/is not true.19

iii) How current or temporally relevant is the COI presented?

21. Most national refugee determination systems require (or allow in certain circumstances for) the judicial decision maker to decide the issue of whether someone is a refugee or is at risk of human rights violations if returned according to the up-to-date situation20. What is normally being assessed is

18 For example, the joint British, Danish and Dutch fact-finding Mission (17-24 September 2000);The joint British and Danish fact-finding mission to Nairobi (Kenya) and Baidoa and Belet Wayne, Somalia, "Report on political, security and human rights developments in southern and central Somalia, including South West State of Somalia and Puntland State of Somalia", 20 May to 1 June 2002; the joint Danish, Finnish, Norwegian and British Fact finding mission to Nairobi, Kenya 7-12 January 2004 published 17 March 2004 entitled "Human Rights and Security in Central and Southern Somalia". 19 In this regard it must not be overlooked that bodies involved in the production of COI are often working under pressure and may be under-resourced. 20 In systems which confine assessment to an error of law or judicial review approach, it may be that all that can be examined is whether the evaluation made by the original decision-maker was within the range of reasonable responses, i.e. not perverse or irrational. However, where a material error of law is found, some countries then allow at that stage for the appeal to be considered on its merits, in the light

8

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download