PROOF, EVIDENTIARY ASSESSMENT AND CREDIBILITY IN ASYLUM PROCEDURES THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 16 PROOF, EVIDENTIARY ASSESSMENT AND CREDIBILITY IN ASYLUM PROCEDURES EDITED BY GREGOR NOLL ASSOCIATE PROFESSOR OF INTERNATIONAL LAW, FACULTY OF LAW, LUND UNIVERSITY THE RAOUL WALLENBERG INSTITUTE HUMAN RIGHTS LIBRARY VOLUME 16 MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON 2005 A C.I.P. Catalogue record for this book is available from the Library of Congress. Printed on acid-free paper. ISBN 90 04 14065 4 © 2005 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. 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TABLE OF CONTENTS Table of Abbreviations .............................................................................................vii Acknowledgements ...................................................................................................ix Chapter 1 – Introduction: Re-mapping Evidentiary Assessment in Asylum Procedures Gregor Noll ...............................................................................................................1 A – DISCOURSES, PROCEDURES AND CONCEPTS Chapter 2 – Competing Patterns for Evidentiary Assessments Henrik Zahle...........................................................................................................13 Chapter 3 – Evidentiary Assessment and Non-Refoulement: Insights from Criminal Procedure Aleksandra Popovic................................................................................................27 B – LESSONS LEARNT ON THE BASIS OF DOMESTIC EXPERIENCES Chapter 4 – The Borderline Between Questions of Fact and Questions of Law Jens Vedsted-Hansen..............................................................................................57 Chapter 5 – Stereotyping and Acceleration – Gender, Procedural Acceleration and Marginalised Judicial Review in the Dutch Asylum System Thomas Spijkerboer...............................................................................................67 Chapter 6 – On Being Heard in Asylum Cases – Evidentiary Assessment through Asylum Interviews Nienke Doornbos ..................................................................................................103 Chapter 7 – Evidentiary Assessment and Psychological Difficulties Jane Herlihy..........................................................................................................123 v TABLE OF CONTENTS C – THE GUIDING POTENTIAL OF INTERNATIONAL LAW Chapter 8 – Evidentiary Assessment under the Refugee Convention: Risk, Pain and the Intersubjectivity of Fear Gregor Noll ...........................................................................................................141 Chapter 9 – Exclusion and Evidentiary Assessment Geoff Gilbert .........................................................................................................161 Chapter 10 – Credibility in Changing Contexts: International Justice and International Protection Rosemary Byrne ...................................................................................................179 D – EPILOGUE Chapter 11 – Salvation by the Grace of State? Explaining Credibility Assessment in the Asylum Procedure Gregor Noll ...........................................................................................................197 Index.......................................................................................................................215 Bibliography (select) ..............................................................................................221 Table of Cases ........................................................................................................227 Authors’ Biographies..............................................................................................231 vi TABLE OF ABBREVIATIONS ACT Advisory Commission on Aliens Affairs (the Netherlands) CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CATC Committee established under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CEAS Common European Asylum System CSR Convention on the Status of Refugees ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights ETS European Treaty Series EU European Union IAT Immigration Appeal Tribunal ICCPR International Covenant on Civil and Political Rights ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IJRL International Journal of Refugee Law ILM International Legal Materials IND Immigration and Naturalization Department of the Ministry of Justice (the Netherlands) INS Immigration and Naturalization Service (US) IRB Immigration and Refugee Board (Canada) OAU Organization of African Unity PD EU Draft Directive on Asylum Procedures PTSD Post Traumatic Stress Disorder QD EU Qualification Directive RSD Refugee status determination UNHCR Office of the United Nations High Commissioner for Refugees UNTS United Nations Treaty Series vii ACKNOWLEDGEMENTS This book emerges from a sequence of collaborative efforts under the umbrella of the Refugee Research Programme. Without the generous support of the United Nations High Commissioner for Refugees (UNHCR), our work on evidentiary issues in the asylum procedure would never have taken place. UNHCR generously funded academic background research for a period of two years as well as a number of workshops and meetings, from the inception of the project in 2001 to the final authors’ workshop in 2003. In particular, we would like to thank Damtew Dessalegne, Jean-François Durieux, Walpurga Englbrecht and Bo Schack for their dedicated support and material advice. We would also like to acknowledge the catalytic role played by the Institute for International Integration Studies (IIIS), Trinity College, Dublin, in bringing together a multidisciplinary group of academic experts with judges, international lawyers and other practitioners from Europe and North America during a two-day conference hosted by the IIIS in September 2003. The texts of this volume emerged from the presentations and discussions at this conference. In particular, we would like to thank Dr. Rosemary Byrne, who transformed the IIIS conference into a reality and a success. The assistance of Ms. Gail Weadick is gratefully acknowledged. Also, the IIIS hosted and supervised Fulbright Scholar Ivy Wong, whose background research on common law practices provided valuable input into our work. Thanks are also due to the Faculty of Law, Lund University, for hosting the 2003 authors’ workshop and for offering bridging funds in various phases of the project. The Faculty provided a platform for two guest researchers and allowed us to link the thesis work of four law students to our project. The Faculty’s continued engagement in the topic of our research is inter alia reflected by the recent appointment of a doctoral candidate, carrying out research on evidentiary issues in the asylum procedure. In addition, the Danish Institute for Human Rights has provided and continues to provide a collaborative platform for the Refugee Research Programme, and therewith the present project. In 2001, it hosted a planning meeting which brought together key actors and resulted in the formulation of many questions now broached in the contributions of this volume. We are grateful to Professor Gudmundur Alfredsson, Director of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, for accepting this volume for publication in the Raoul Wallenberg Institute Human Rights Library Series. The unrelenting work of Carin Laurin in managing the editorial process and of language editors Miles Hogan and Jason Naum is gratefully acknowledged. Finally, thanks are due to the Swedish Research Council (Vetenskapsrådet) for funding the work of the editor on this volume. Lund, February 2005 Gregor Noll ix CHAPTER 1 INTRODUCTION: RE-MAPPING EVIDENTIARY ASSESSMENT IN ASYLUM PROCEDURES Gregor Noll 1.1. WHAT MAKES ASYLUM ADJUDICATION SPECIAL? The law is expected to treat like cases alike. In asylum law, this poses veritable challenges. Today, an important fraction of applications are arguably decided on the basis of evidentiary assessment rather than on legal issues. In particular, the credibility of the applicant’s account plays a central role. This moves decisions into a domain characterised by the discretion of the person who assesses the accounts, and raises the issue where its limits are – or ought to be. As recognition rates diverge within and among states,1 any observer would concede that excessive discretion2 risks cancelling the harmonising effects of international and supranational legislation. For one, instruments such as the 1951 Refugee Convention and the 1967 Protocol3 were adopted to coordinate the 1