International Aspects of Asylum Law in the Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom (Supreme Court) recently decided two cases that demonstrate the challenges courts face when applying asylum law domestically within the general framework of international refugee law. The Supreme Court’s application of complicated principles to difficult facts will ensure that these cases provide important guidance on respective competences, the use of evidence, and the rule of law to international decision-making bodies in the field of international refugee law, as well as other domestic decision makers.
The first case, I.A. v. Secretary of State for the Home Department (IA Judgment), decided on January 29, 2014, concerned the weight to be given to an earlier grant of refugee status by the UN High Commissioner for Refugees (UNHCR) to a person later applying for asylum in a state party to the 1951 Convention Relating to the Status of Refugees. The U.K. is a party to this Convention, which is the key legal document that defines refugees, their rights, and the legal obligations of states toward them.
The second case, R (on the application of EM (Eritrea)) v. Secretary of State for the Home Department (EM (Eritrea)), decided on February 19, 2014, concerned whether an asylum seeker is required to show that there are “systemic” deficiencies in asylum protection in order not to be returned to a country otherwise deemed safe.
This Insight discusses the points of law raised by each case before briefly pulling together some international themes that emerge from this latest case law from the Supreme Court in the area of asylum.
The IA Judgment
The IA Judgment evaluated the respective competences of UNHCR and domestic decision makers to designate persons as refugees. The appellant, an Iranian referred to as IA, claimed to fear persecution if returned to Iran because of his work with the Kurdistan Democratic Party of Iran (KDPI). UNHCR twice recognized him as a refugee: in Iraq in 1998 and in Turkey in 2003. Around 2006, he traveled to the U.K. and applied for asylum.
The Home Secretary refused IA’s asylum application on the grounds that his account was not credible, a decision that was upheld by an immigration judge. IA appealed on the ground that the judge had not given sufficient weight to UNHCR’s determination. His appeal having been dismissed by the Scottish Court of Session, IA took his case to the U.K. Supreme Court. Giving the unanimous judgment of the Supreme Court, Lord Kerr also dismissed his appeal. The judgment raises two important issues: (1) the disclosure by UNHCR of evidence in its possession, and (2) the weight to be given to UNHCR determinations.
Disclosure of Evidence by UNHCR
The original immigration judge had no evidence as to the “basis and procedures” for the grant of refugee status by UNHCR, which was her reason for giving less weight to the determination. The Supreme Court agreed that, where insufficient evidence is offered demonstrating how UNHCR reached its decision, “it is difficult to see how its conclusion can properly be regarded as evidence other than of the fact that that determination had been made.”
By the time the case reached the Supreme Court, evidence in the form of redacted notes from an interview and assessment of IA by UNHCR staff in Turkey was available. The release of information in this way, however, seems to be the exception rather than the rule. UNHCR gave evidence before the Supreme Court explaining that it is not always able to release such information, for reasons including “the observance of confidentiality/data protection principles, capacity or resources, access and/or the security of staff, refugees and/or operations which may be compromised.” The record does not demonstrate why the evidence was unavailable in the lower courts and, of course, it is possible that it was never requested, but it seems likely that UNHCR agreed to provide it for the Supreme Court, following a request from IA’s lawyers, at least in part because of the respect such a court commands.
This case demonstrates the “pivotal importance” UNHCR evidence can have. The immigration judge found IA’s account not credible in part because he failed to mention in his first statement in support of his U.K. asylum application points that he made in his second statement: namely that he had returned to Iran to carry out activities for the KDPI after leaving for Iraq. The Judge also found his depiction of his parents’ arrest in Iraq to be lacking in credibility. UNHCR’s record, however, provided a more believable explanation for both of these chapters of IA’s account. The Supreme Court concluded that “[i]t is eminently possible that a significantly different view about [IA’s] credibility would have been formed had this information been available to [the original Immigration Judge].” Lord Kerr declined to remit the case for reconsideration in light of the new evidence, considering that the appropriate course instead was for IA to submit a “fresh claim.”
UNHCR, however, may soon reform its policy on the release of documentation to individuals who later bring asylum claims. Refugee advocates hope that UNHCR develops a policy which would allow asylum seekers to submit UNHCR-held evidence in courts of first instance, where it is common for findings about the applicant’s credibility to be made that are very difficult to overturn on appeal.
The Weight Given to UNHCR Determinations
The Court concluded that the national decision maker must pay “close attention” to UNHCR’s grant of refugee status and give “considerable pause” before arriving at a different conclusion. Thus, a claimant for asylum who has been accorded refugee status by UNHCR “starts in a significantly better position than one who does not have that status.” Lord Kerr summed up the position stating, “Recognition of refugee status by UNHCR does not create a presumption, does not shift the burden of proof and is not a starting point (if by that one implies that it is presumptively assumed to be conclusive) but substantial countervailing reasons are required to justify a different conclusion.”
In the absence of a reversal of the burden of proof, it is difficult to delineate the meaning of “substantial” in this context. Lord Kerr gave guidance, however, for cases dependent on credibility alone. He suggested that in these cases, the decision maker should not reject as not credible the claim of a person with UNHCR refugee status, unless the person’s credibility is undermined “by information that emanates from a source other than his own account.” Thus, the immigration judge in IA’s case was correct in rejecting UNHCR’s determination on refugee status because “she had found that there were sufficient reasons from external sources” to question the reliability of IA’s account. The somewhat perverse consequence is that a claimant would be better off not calling external evidence given that there is always a risk, as materialized in IA’s case, of that evidence being undermined. If IA had relied solely upon his own testimony, then, under Lord Kerr’s dictum, his UNHCR status would have rendered his credibility unchallengeable in the absence of external evidence adduced by the government.
EM (Eritrea) highlights the need for consistent standards in different international instruments providing protection for refugees. The appellants were three Eritreans and one Iranian national, who came to the U.K. via Italy. As the first state in which they claimed asylum, Italy was the “responsible” state for processing the applicants’ asylum claims under the European Union (EU) Regulation commonly known as Dublin II. They all claimed to be at risk of ill treatment in Italy, for reasons including homelessness and destitution, a risk of rape, and a lack of access to psychological treatment. The Home Secretary certified the claims at issue as clearly unfounded on the basis that Italy was not in systemic breach of its material international obligations.
The Court of Appeal held that EU law did indeed require proof of a systemic breach before it would be lawful to refuse to return an asylum seeker to another member state. It found that the Court of Justice of the European Union (CJEU) had transformed this into a necessary condition in NS (Afghanistan) v. Secretary of State for the Home Department (NS), whereas in European Court of Human Rights jurisprudence, it was simply a sufficient one. The Supreme Court disagreed and remitted the cases for reconsideration by the first-instance court on the facts.
Systemic Failures to Prevent Inhuman and Degrading Treatment
Lord Kerr found that the Court of Appeal had erred, in that the CJEU did not mean that a systemic deficiency had to be demonstrated before the rights infringement could operate to prevent a transfer. Rather, the rights infringement was evidence of a systemic deficiency.
For at least three reasons, Lord Kerr’s approach must be the right one. First, his interpretation is a more natural reading of the CJEU’s dicta. The confusion arose because the CJEU stated:
[I]f there are substantial grounds for believing that there are systemic flaws . . . resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision.
That it is necessary to show a human rights violation, but not necessarily a systemic failure, is strongly implied two paragraphs further into the judgment, where the CJEU states that the “extent of the infringement of fundamental rights described” in another judgment, relating to Greece, “shows that there existed . . . a systemic deficiency in the asylum procedure and in the reception conditions of asylum seekers.”
Secondly, Lord Kerr’s interpretation means that EU law and European Convention on Human Rights (ECHR) law sit in harmony with each other, both requiring an individualistic assessment as to whether there is a real risk that the claimant will be subjected to inhuman or degrading treatment if returned. Clearly, EU and ECHR law were intended to be symbiotic on this issue. As Lord Kerr points out, the obligations imposed on EU Member States “coalesce” with the positive obligations imposed by the ECHR on members of the Council of Europe:
When one is in the realm of positive obligations . . . the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 [ECHR] breach, rather than a hurdle to be surmounted.
The only factor to add is that there is a “strong presumption” that listed states will comply with their international obligations in relation to asylum seekers. Relatedly, Lord Kerr’s judgment removes the unhappy tension between the Home Secretary’s obligation to abide by EU law and her duty to uphold human rights standards. On the Court of Appeal’s interpretation, her obligations under Dublin II would have bound her to return the claimants to Italy, whereas her obligations under the ECHR would have required her not to return them.
Third, Lord Kerr’s interpretation fits long-standing jurisprudence on the content of the right not to be subject to inhuman or degrading treatment, as guaranteed by Article 3 ECHR and Article 4 of the Charter of Fundamental Rights. As Lord Kerr explains:
It is self-evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system. If this requirement is grafted on to the presumption [that EU Member States will comply with their international obligations] it will unquestionably make its rebuttal more difficult. And it means that those who would suffer breach of their article 3 rights other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur. That this should be the result of the decision of CJEU in NS would be, as I have said, remarkable.
Domestic courts adjudicating asylum claims must contend with the nuances of multiple sources of law applying to asylees. First, numerous decision makers operate in the field of refugee law, meaning that courts must make decisions about respective competences. Notably, in these two judgments the Supreme Court gives considerable deference to UNHCR—despite the non-binding status of its determinations—because of considerations of international comity, legal diplomacy, and the need for consistency of approach in the international protection of refugees.
Second, multiple sets of legal norms may apply to any one situation in the asylum context. The cases underline the need to develop consistent standards, both in decision making (by UNHCR and domestic systems), and in legal principles (as between the EU and the Council of Europe). The IA Judgment notes the necessity of ensuring that “all asylum seekers, regardless of where they apply for refugee status can depend on the application of consistent adjudication of their claims.”
That domestic courts develop a uniform approach to application of multiple sources of law applying to asylees is important for practical reasons. It helps to avoid a decision maker being placed under opposing and irreconcilable obligations, to return an asylum seeker on the one hand and to refuse to return him or her on the other. In this regard, the IA Judgment raises a difficult question: what happens to people like IA, who have been declared refugees by UNHCR but denied asylum in a receiving state? There would be no basis in domestic law for admitting him to the receiving state, yet it would undermine the existence and purpose of UNHCR if the correct answer under international law was that he should be returned to his original country. As yet it is not clear that an answer to this question exists. This tension serves to highlight the legal and practical challenges that domestic courts applying international refugee law must overcome.
 I.A. v. Sec’y of State for Home Dep’t,  UKSC 6,  1 W.L.R. 384 (Eng.) [hereinafter IA Judgment], available at
 R (on the application of EM (Eritrea)) v. Sec’y of State for Home Dep’t,  UKSC 12,  2 W.L.R. 409 (Eng.) [hereinafter EM (Eritrea)], available at http://supremecourt.uk/decided-cases/docs/UKSC_2012_0272_Judgment.pdf.
 IA Judgment, supra note 1, ¶¶ 21, 30.
 Id. ¶ 27; Case for UNHCR, I.A. v. Sec’y of State for Home Dep’t: Case for the Intervener, ¶ 35, Oct. 27, 2013, available at http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=52eba2684.
 IA Judgment, supra note 1, ¶ 26
 Id. ¶ 27.
 Id. ¶¶ 59–61. An applicant may apply again to the Home Secretary for asylum when new evidence comes to light, under the conditions for making a “fresh claim” in rule 353 of the U.K. Immigration Rules, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/279702/Immigration_Rules_-_Part_12.pdf.
 Id. ¶ 49. Here, the Court rejected an approach, propounded in Secretary of State for the Home Department v. KK (Congo)  UKIAT 54 (Eng.), available at https://moj-tribunals-documents-prod.s3.amazonaws.com/decision/pdf_file/38148/2005_ukiat_00054_kk_democraticrepublicofcongo.pdf, that would require a UNHCR determination to be followed by the domestic court unless it was “wrong.” Such an approach was felt to be unworkable given the usual lack of evidence on which to base an assessment as to the correctness of the decision.
 Id. ¶ 46.
 Id. ¶ 53.
 In terms of the procedural history, the two men (EH and EM) both claimed asylum in Italy, but both made their way clandestinely to the U.K. before their claims were determined. EM claimed to have been homeless and destitute and not to have the money to process his asylum claim. In relation to EH, the first-instance court found that there was a real risk he would be homeless if returned and was so would not receive treatment for his mental illnesses. The two women (AE and MA) were both granted asylum in Italy, but traveled covertly to the U.K. because they claimed to have been left homeless and destitute, and AE claimed to have been repeatedly raped. Id. ¶¶ 9–22.
 Council Regulation 343/2003, Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in One of the Member States by a Third-Country National, 2003 O.J. (L 50) 1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:050:0001:0010:EN:PDF.
 EM (Eritrea), supra note 3, ¶ 7. Italy is one of a list of countries deemed to be safe for the return of asylum seekers under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, Sch. 3, Part 2, § 2(n), § 5(4). This means that claimants can only rely on human rights grounds if the Home Secretary is “satisfied that the claim is not clearly unfounded.”
 EM (Eritrea) & Or’s v. Sec’y of State for Home Dep’t  EWCA (Civ) 1336,  1 W.L.R. 576 (Eng.), available at http://www.bailii.org/ew/cases/EWCA/Civ/2012/1336.html.
 C-411/10 & C-493/10, N.S. & Or’s v. Sec’y of State for Home Dep’t, 2011 E.C.R. I-13905 (Grand Chamber), [hereinafter NS], available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=117187&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=323799. The Strasbourg jurisprudence referred to includes K.R.S. v. United Kingdom, App. No. 32733/08, Eur. Ct. H.R., (2008) and M.S.S. v. Belgium & Greece, App. No. 30696/09, Eur. Ct. H.R., 53 Eur. H.R. Rep.28 (2011).
 It should be noted that the prohibition on inhuman and degrading treatment or punishment is stated in identical terms in Article 3 ECHR and Article 4 of the Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1.
 EM (Eritrea), supra note 3, ¶ 55.
 NS, supra note 16, ¶ 86.
 Id. ¶ 89.
 EM (Eritrea), supra note 3, ¶ 63. The relevant EU laws include Council Directive 2003/9/EC, Laying Down Minimum Standards for the Reception of Asylum Seekers, 2003 O.J. (L 31) 18, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32003L0009&qid=1401979142429&from=EN and 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, 2004 O.J. (L 304) 12, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004L0083&qid=1401979315976&from=EN. Further, Article 4 of the Charter of Fundamental Rights contains a human rights protection in equivalent language to Article 3 ECHR.
 As a “public authority” under Human Rights Act, s.6 (1998) (Eng.). See also EM (Eritrea), supra note 3, ¶ 43, 64.
 EM (Eritrea), supra note 3, ¶42.
 See id. ¶ 71–74 (Lord Kerr affirming his dicta in the IA Judgment).