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Credibility assessment in asylum claims based on sexual orientation and/or gender identity
Fadela Novak-‐Irons CoE-‐UNHCR Seminar
Rome, 10-‐11 October 2013
CREDO Project Credibility Assessment in EU Asylum Systems
Scope of the report Selected aspects of credibility assessment l purpose of the credibility assessment l its place in overall examination of applications l principles underpinning credibility assessment l shared duty to substantiate application l credibility indicators l benefit of the doubt l structured approach Report structure built around these legal concepts
Mul;-‐disciplinary approach
l Requirement in EU law for individual, objec;ve and impar;al assessment
l Requirement to take into account applicant’s individual and contextual circumstances, his/her individual posiHon and personal circumstances, incl. background, gender and age
l Factors span disciplinary fields of neurobiology, psychology, anthropology, sociology, cultural and gender studies
Mul;-‐disciplinary approach
l Awareness of factors that could influence Decision-‐Maker’s assessment of credibility – Background, life experiences, beliefs, gender, SOGI – Thinking process – InsHtuHonal and poliHcal environment – AssumpHons, ExpectaHons, MisconcepHons, Bias…
l Factors recognised in state guidance and European Asylum Curriculum (EAC)
l Factors and relevance explained in Chap.3 and intersected and linked with applicaHon of various legal concepts throughout report
What is Credibility Assessment?
For the purpose of the report: – Process of gathering relevant informaHon from applicant – DM gathering further relevant informaHon by own means – Examining statements and other evidence in light of all available informaHon to DM – Determining whether and which of applicant’s statements relaHng to material elements of claim can be accepted, and then taken into account in WFF/serious harm analysis
Evidence? l !! NOT search for truth
l !! NOT proof l Evidence may be oral or documentary:
– Applicant’s statements + other oral evidence provided by experts, family members and other witnesses
– Documentary evidence: wri_en, graphic, digital, and visual materials, incl. COI, exhibits -‐ physical objects and bodily scarring, audio and visual recordings
l StarHng point: Applicant’s statements !! Statements may be only source of informaHon
l Applicant’s statements and documentary and other evidence must be looked at “in the round”
Eviden;ary MaFers & LGBTI Claimants
l Applicant’s statements = primary and oden only source of evidence, esp. where persecuHon is at hands of family members or community
l Relevant and specific COI on situaHon and treatment of LGBTI oden lacking: – DM to rely on applicant’s statements alone – no automaHc conclusion lack of credibility
l COI can be especially scarce for L, B, T, I l !! No automaHc conclusions based on COI about one group BUT may serve as indicaHon of applicant’s situaHon in certain circumstances
A Two-‐Stage Approach l Stage 1 – Establishment of facts and circumstances (Art.4 QD) – CA First step in decision-‐making process
l Stage 2 – ExaminaHon of WFF/serious harm
l M.M. (CJEU): Art.4 (1) QD “relates only to the first stage […], concerning the determinaHon of the facts and circumstances qua evidence which may substanHate the asylum applicaHon.”
l Beyond Proof ONLY discusses Stage 1 to support Decision-‐Makers’ rigour in pracHce
Shared duty to substan;ate
l Applicant’s duty ‘in principle’ to substanHate applicaHon
l Art.4(1) EU QD: State duty to cooperate
l M.M. (CJEU): – Not adversarial process: “the two par3es will work together towards a common goal.”
– Far-‐reaching obligaHons to communicate for both State and applicant
Shared duty to substan;ate
l Content applicant’s duty: – What needs to be substanHated – the material facts – Genuine effort – Provide all evidence at applicant’s disposal – Provide saHsfactory explanaHon for potenHal adverse credibility findings
l Content Decision-‐Maker’s duty: – Provision of informaHon and guidance – Use of appropriate quesHoning in interview – Opportunity to explain potenHal adverse credibility findings – Gathering evidence by own means
Credo Prac;cal Tools -‐ Checklists CREDO – Credibility Assessment Checklists: h_p://www.refworld.org/docid/51dd2f0d4.html
– Overview of the credibility assessment – Purpose and principles – Gathering the facts
l The Applicant’s duty to substanHate the applicaHon l The Decision-‐Maker’s duty to cooperate
– Factors to take into account l Factors affecHng the applicant l Factors affecHng the Decision-‐Maker
– Credibility indicators – A structured approach to credibility assessment
Credibility indicators? l Handbook (para.204) and Art.4(5)(c) QD: Applicant’s statements “must be coherent and plausible, and must not run counter to generally known facts”
In pracHce: l Sufficiency of detail and specificity l Internal consistency of oral and/or wri_en material facts asserted by applicant
l consistency of applicant’s statements with informaHon provided by family members and/or other witnesses
l Consistency of applicant’s statements with available specific and general informaHon, incl. COI
l Plausibility l Coherence
Credibility indicators & LGBTI Claimants l !! Consistency of applicant’s statements with COI
l !! Plausibility
l !! Demeanour -‐ Report notes limitaHons of demeanour as indicator of credibility
Credibility Assessment – Challenges l Expected behaviour:
l taking acHve steps to explore sexual idenHty in country of asylum having claimed to have done so in country of origin;
l contacHng claimed partner or associate(s) who remain in country of origin
l Applicant may be quesHoned on general knowledge of: – LGBTI situaHon in country of asylum – Gay bars, LGBTI rights organisaHons in country of origin – legal provisions re. LGBTI persons in country of origin
l !! Risk of subjecHve stereotyping and unfounded assumpHons re. human behaviour, interacHon and knowledge
Credibility Assessment – Challenges (2)
l Late disclosure – Impact of feelings of shame, social sHgma, fear of ostracism and reprisals
– Impact of coming out process – !! NegaHve credibility findings if SOGI not disclosed at earliest opportunity
– !! Late disclosure triggers higher burden of proof
!! Credibility Assessment Methods Incompa;ble with ECHR
l Intrusive quesHoning on details of sexual pracHces
l Medical or pseudo-‐medical tesHng of SOGI
l Inappropriate documentary or other evidence
Terminology
Terminology l Sexual orienta;on: Each person’s capacity for profound emoHonal, affecHonal and sexual a_racHon to, and inHmate relaHons with, individuals of a different gender or the same gender or more than one gender.
l Gender iden;ty: Each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body and other expressions of gender, including dress, speech and mannerisms
Terminology l YP Principle 3: SOGI = integral to personality, one of the most
basic aspects of self-‐determinaHon, dignity and freedom l Broad concepts -‐ create space for self-‐idenHficaHon l SO can range along a conHnuum, incl. exclusive and non-‐
exclusive a_racHon to same or opposite sex
l GI and its expression take many forms -‐ some idenHfy neither as male nor female, or as both
l SO and GI: determined at an early age for most but may conHnue to evolve during lifeHme. – Different people realize at different points in their lives that they are
L,G,B,T,I and their sexual and gender expressions may vary with age, and other social and cultural determinants
l Intersec;on of Gender, SO and GI – integral part of assessment – not conforming to prevailing poliHcal, cultural or social norms, and expected gender roles
Establishing the applicant’s SO and/or GI UNHCR Guidelines 9 para. 62-‐63
Credibility Assessment
l Exploring elements around applicant’s – personal percep;ons – feelings – experiences of difference, s;gma and shame – Rather than sexual pracHces
l Developing list of quesHons in preparaHon of interview = helpful BUT no magic formula of quesHons to ask and no set of “right” answers in response
Credibility Assessment l Useful areas of quesHoning may include the following:
– Self-‐idenHficaHon – Childhood – Self-‐realisaHon – Gender idenHty – Non-‐conformity – Family relaHonships – RomanHc and sexual relaHonships – Community relaHonships – Religion
Self-‐Iden;fica;on
l IndicaHon of applicant’s SO and/or GI l !! Applicant’s social and cultural background may affect how person self-‐idenHfies – Some LGB may harbour deep shame and/or internalized homophobia, leading them to deny SO and/or adopt verbal and physical behaviours in line with heterosexual norms and roles
– Applicants from highly intolerant countries may not readily idenHfy as LGBTI
l This alone should not rule out that the applicant could have a claim based on SOGI where other indicators are present
Childhood l In some cases, before self-‐idenHficaHon, feelings of “difference” as children – probing experience of difference
l Core a_racHons that form the basis for adult SO may emerge between middle childhood and early adolescence BUT some may not experience same-‐sex a_racHon unHl later in life
l Persons may not be aware of full GI unHl adolescence, early adulthood or later in life -‐ Gender codes in many socieHes may be less prescripHve or strict during childhood than in (early) adulthood
Self-‐Realisa;on l “Coming out” = LGBTI is coming to terms with own idenHty and/or individual communicaHng idenHty to others
l QuesHons about both “coming out” or self-‐realizaHon processes, incl. in country of origin and country of asylum
l Some know they are LGBTI long before they actually pursue relaHonships with other people, and/or express idenHty openly
l Some may engage in sexual acHvity (with same-‐sex and/or other-‐sex partners) before assigning clear label to their SO
Gender Iden;ty l T applicant may not have undergone medical treatment or other steps to help outward appearance match preferred idenHty = not evidence that person is not transgender
l Some T idenHfy with chosen idenHty without medical treatment as part of transiHon, while others do not have access to such treatment
l May be appropriate to ask quesHons about steps T applicant has taken in his/her transiHon
Non-‐Conformity l LGBTI applicants may have grown up in cultures where SOGI is shameful or taboo
l May struggle with SOGI at some point in their lives. l This may move them away from, or place them in opposiHon to their families, friends, communiHes and society in general
l Experiences of disapproval and of “being different” or the “other” may result in feelings of shame, sHgmaHzaHon or isolaHon
Family Rela;onships l Applicant may or may not have disclosed SOGI to close family members
l Disclosures may be fraught with difficulty and can lead to violent and abusive reacHons by family members
l Applicant may be married, or divorced and/or have children = Not evidence applicant is not LGBTI
l QuesHons re. reasons for marriage -‐ If applicant able to provide consistent and reasonable explanaHon for marriage and parenthood, the por;on of the tes;mony should be found credible
Roman;c and Sexual Rela;onships l Applicant’s relaHonships with and a_racHon to partners, or hope
to have future relaHonships = usually part of narraHve l !! Not everyone, esp. young LGBTI, has had romanHc or sexual
relaHonships l If no relaHonship(s) in country of origin:
– not necessarily evidence person is not LGBTI – Rather indicaHon of harm avoidance
l QuesHons – !! SensiHve quesHoning re. past and current relaHonships -‐ involves personal informaHon and applicant may be reluctant to discuss
– !! No detailed quesHons about applicant’s sex life: inappropriate + not effecHve quesHoning line
l SOGI = person’s idenHty, whether or not manifested through sexual acts
Community Rela;onships l Knowledge of LGBTI contacts, groups and acHviHes in countries of origin and asylum may be useful
l !! Applicants who were not open about SOGI in country of origin may not have informaHon about LGBTI venues or culture = Not evidence of lack of credibility
l Lack of engagement with other members of LGBTI community in country of asylum or failure to join LGBTI groups = Not necessarily evidence of lack of credibility
l Reasons? – Economic factors? geographic locaHon? language and/or cultural barriers? lack of opportuniHes? personal choices? fear of exposure?
Religion l Where applicant’s personal idenHty is connected with his/her faith, religion and/or belief, this may be helpful to examine as an addiHonal narraHve about their sexual orientaHon or gender idenHty
l Influence of religion in lives of LGBTI persons can be complex, dynamic, and source of ambivalence
THANK YOU !