UK - Supreme Court, I.A v The Secretary of State for the Home Department, 2014 UKSC 6

Facts:

The Appellant applied for asylum at the UNHCR in Kurdistan in 1998 and was recognised as a refugee. The Appellant was subsequently recognised as a refugee when he presented himself to the UNHCR in Turkey in 2003. He arrived in the UK in 2007 and applied for asylum.  His application was refused because omissions in his original evidence, and conflicting evidence from other sources, were considered to severely damage his credibility - the Appellant appealed this decision, which was heard by the Asylum and Immigration Tribunal. His appeal was not granted. The Appellant appealed to the Extra Division of the Court of Session on the grounds that the Tribunal had failed to give any weight to the decision of the UNHCR to grant refugee status. This was rejected as it was considered that the Tribunal has approached the effect of the UNHCR's decisions properly and accorded them the appropriate weight. The Appellant then appealed to the Supreme Court.

Decision & reasoning:

No information was available to the Tribunal or the Extra Division as to how the UNHCR had arrived at its decision to grant the Appellant refugee status.  It is not always possible or desirable for the UNHCR to respond to requests for information about why a particular decision on refugee status has been taken because of reasons of confidentiality/data protection, resources and security of staff, refugees and operations.

The decisions of the UNHCR as to refugee status do not oblige countries to make the same decisions in relation to domestic applications for asylum.  As no information was available as to how the UNHCR had reached its decision in this case, the  UNHCR decision could only be evidence of the fact that that determination had been made.

In Secretary of State for the Home Department v KK (Congo) it was stated that "the earlier grant of asylum is not binding but it is the appropriate starting point….the adjudicator must consider whether there are the most clear and substantial grounds for coming to a different conclusion.  The adjudicator must be satisfied that the decision was wrong".

This was considered problematic to apply where the subsequent decision maker does not have available the information on which the previous application was made, and cannot therefore assess whether the decision was wrongly made.  This reasoning also suggests that unless the UNHCR decision can be shown to be wrong, it must be followed - applying such a presumption against a background of a lack of knowledge as to the basis of the original decision was not considered in the instant case to be a sound basis for a reliable determination.

In MM (Iran) v Secretary of State for the Home Department it was stated that "a decision by the UNHCR as to refugee status will…be give considerable weight…unless in any particular case the decision taker concludes that there are cogent reasons not to do so on the facts of that individual case".

The UNHCR's written submissions in the instant case suggested that a UNHCR decision cannot be disregarded unless there are cogent reasons for doing so, based on "reliable information available to the decision maker".  This approach was considered as having much to commend it, and was interpreted in the instant case as meaning that such information should be from a source other than the applicant's own account.  Therefore where the possible rejection of a claim for asylum rests solely on credibility, if the claimant has UNHCR status, his claim should not be rejected unless his credibility is undermined by information that emanates from a source other than his own.

The UNHCR decision in favour of refugee status does not supply evidence which can be independently evaluated by a decision maker and does not impose a burden of proof on the state authorities who resist the claim.  A national decision maker must however pay close attention to a UNHCR decision and give considerable pause before arriving at a different conclusion. The approach cannot be more closely prescribed than this.

In the instant case, the Tribunal had been aware that clear and substantial grounds were required to justify it coming to a  different conclusion from that reached by the UNHCR. There was material other than the Appellant's account which undermined his credibility, and the Tribunal was correct to examine the Appellant's various accounts for any intrinsic lack of trustworthiness.

In this instance the UNHCR did provide redacted notes of its assessment of the Appellant's claim for asylum, the contents of which, had they been available to the Tribunal, could have led to a significantly different view about the Appellant's credibility being made.  In the instant case, the evidence was admitted in the interests of justice for the purpose of assessing the level of influence that a decision by UNHCR in refuges status should have.

Outcome:

Appeal denied

Observations/comments:

This summary was provided courtesy of DLA Piper.

Other sources:

Procedural Standards for Refugee Status Determined under the UNHCR's Mandate, November 2003

The 1950 Statute of the Office of the High Commissioner

UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees 

UNHCR's Guidelines on International Protection