When demonstrating that an asylum-seeker faces a real risk of persecution, the distribution of the burden of proof between claimant and Immigration Authorities is theoretically in favour of the claimant. Yet this is not always the case in practice, as the UK Government will often seek to undermine the credibility of asylum claims, and attempt to shift the burden of proof back onto the asylum-seeker. However, the case of J.K. and Others v Sweden (59166/12), which was heard in the Grand Chamber of the European Court of Human Rights (“ECtHR”), has confirmed that the burden of proof indeed favours the asylum-seeker, and that lessening the credibility of the asylum-seeker’s evidence does not render their claim groundless.
Background to J.K. and Others v Sweden
The case of J.K. and Others v Sweden, heard in the Grand Chamber of the ECtHR on 23 August 2016, concerned three Iraqi nationals who had claimed asylum in Sweden in 2012 on the basis that, having faced persecution from al-Qaeda for collaborating with the US during the period 2004 to 2008, their lives would be imperilled should they be returned to Iraq. This application for asylum was refused on the basis of the credibility of their evidence, and that the asylum-seekers had not sufficiently proven the risk to their lives was still extant. The Grand Chamber ECtHR, however, found that such a decision was a violation of the applicant’s rights under Article 3 ECHR – the prohibition of torture and other degrading treatment – and they should not be deported.
Burden of Proof in Asylum Claims
The Grand Chamber’s decision centred around the distribution of the burden of proof necessary for asylum claims, in which it is considered to be the shared duty of the asylum-seeker and Immigration Authorities to ascertain and evaluate all relevant facts of the case. The Grand Chamber accepted that, as a general rule, the asylum-seeker must be able to provide a substantiated account of the risk of ill-treatment that they will face in their country of origin should they be deported. This account must distinguish the asylum-seeker’s situation from the general perils of life in their country of origin, and the asylum-seeker’s burden of proof is therefore that they submit all the evidence possible that relates to their individual circumstances; it does not fall within the asylum-seeker’s burden of proof to demonstrate the general perils of life in their home country, and once they have submitted all their evidence, their burden of proof is considered to be discharged.
It is for the Immigration Authorities, therefore, to establish the general situation in the asylum-seeker’s country of origin, and it is required that they do so at their own initiative. The Grand Chamber held that this should be done using impartial sources, and the Grand Chamber recognised that establishing the general situation of the country of origin is a far larger burden of proof than that carried by the asylum-seeker. The benefit of the doubt, the Grand Chamber held, should be granted “in favour of an individual seeking international protection”.
Credibility in Asylum Claims
The Grand Chamber also considered the credibility of the claim in J.K and Others v Sweden. Some of the documents that were submitted as supporting evidence were deemed to be simple in nature and of little evidentiary value; coupled with the fact that the applicants had not made more detailed submissions regarding abuses in 2008, it was held by the Court that the credibility of their claims had been lessened as a result. The Grand Chamber, however, held that this was not the case, and that any implausibility or inaccuracy in the details submitted by the asylum-seeker does not necessarily detract from the overall general credibility of a claim. Furthermore, it was held that a lack of documentary evidence cannot be decisive when considering an asylum claim, and that any difficulties the asylum-seeker has in gathering evidence should also be taken into account when considering their claim. These steps, the Grand Chamber held, were not taken in the case of J.K and Others v Sweden.
The decision of the ECtHR can be accessed here: JK and Others v Sweden (59166/12) LEXVISA Immigration Solicitors London.
What Does This Case Mean for Asylum Claims in the United Kingdom?
For asylum-seekers seeking protection in United Kingdom, the judgment in the case of J.K. and Others v Sweden provides guidance on how to best present a claim. The rules regarding the burden of proof stipulate that the asylum-seeker must submit evidence that demonstrates their own circumstances, and that the Immigration Authorities must at their own initiative establish the situation in the asylum-seeker’s country of origin. However, it is not always advisable for the asylum-seeker to rely on the Immigration Authorities taking such steps; asylum claims in the United Kingdom are notoriously difficult to succeed in, and whilst the rules regarding the burden of proof are generally followed, the Immigration Authorities in the United Kingdom will seek to undermine the credibility of the claim as well as the severity of the risk the asylum-seeker is facing. The asylum-seeker has an opportunity to demonstrate the veracity of their claim through an interview – for which thorough preparation should be made – but there should also be supporting evidence of the context of the situation in their country of origin. In this way, there is an element of control that the asylum-seeker can exert on the process, and these steps can help to establish the credibility of an asylum claim.
Using Legal Representation to Make Asylum Claims in the United Kingdom
Legal representatives, such as our specialist immigration and visa law firm, are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to make asylum claims in the United Kingdom.
Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.
This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.
Successfully Make Asylum Claims in the United Kingdom
Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.
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Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.
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