Asylum-seekers must demonstrate that they have been persecuted in their country of origin or that they are at serious risk of being persecuted if deported (1). They will undergo 2 or 3 hearings during which they must gain recognition for their plight. Many lives are affected as government officials decide whether to accept the claims of persecution submitted by migrants trying to avoid deportation. These adjudications are hidden from public view, and have been typified by a subjective approach. Implicit assumptions about how foreign countries work and, most importantly, how a genuine victim would act or talk can lead to inconsistent, unreliable decisions with grave consequences for people in danger.
Referring to the UK policy towards asylum-seekers from Sudan between 2002 and 2003 which completely ignored the serious human rights violations taking place in Darfur, Michael Kagan (2) explains why immigration offices must change their credibility assessment from a subjective approach based on personal judgment to a more objective analytical approach. In a forthcoming article (Believable Victims), he explains that: « In a highly politicized environment where adjudicators are under pressure to decide asylum cases in a particular way, there is a danger that adjudicators will be implicitly rewarded for confirming preconceptions about asylum claims rather than for objective analysis. »
Because of these concerns, the UNHCR advocated a structured analysis in 2013 which adjudicators should put into practice during and after the hearings in order to decide in a more objective manner. This newer approach has been captured in a training manual, The Credibility Assessment in Asylum Procedure Manual (CREDO Manual (UNHCR/EU))
Unfortunately, American asylum law is not yet following UNHCR’s recommendation according to Michael Kagan. In Switzerland politically motivated decisions were noticed by numerous legal advisers working to defend Tamil asylum-seekers who had fled Sri-Lanka in the past few years. A careful, structured analysis of asylum claims requires training, time and resources. In my point of view, the new adjudicators of the Swiss Federal Office of Migration (ODM) seem better trained and more aware of the human rights violation abroad although every official is under pressure not to let too many people « pass the test ». It is a fact.
(1) The 1951 Refugee Convention spells out that a refugee is someone who « owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country. » The Refugee Convention relies heavily on the concept of persecution, but does not define it. It only gives us two direct indications: First, in order to qualify as a refugee, a person must risk persecution for reasons of “race, religion, nationality, membership of a particular social group or political opinion”. Otherwise stated: whatever literal meanings the word “persecution” may have in other contexts, only persecution that is linked to one of these five grounds is relevant for the Convention.
Secondly, as made clear by Article 33 GC, threats to life or freedom are readily included within the scope of the term ‘persecution’. It must be emphasized here that the converse is not true: persecution cannot be defined as including only threats to life and freedom. This view, expressed by Atle Grahl-Madsen more than forty years ago, has become canonical in the literature and in international practice.
(2) By Michael Kagan, University of Nevada, Las Vegas, William S. Boyd School of Law, 2015. Georgetown Journal of International Affairs, Vol. 16, No. 1, 2015, Forthcoming. Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2519281