Why credibility is important in asylum claims
Credibility determination is a step towards deciding how to weigh an applicant’s statements and other evidence when making an asylum decision. Credibility assessment is undoubtedly one of the most challenging aspects of asylum decision-making. Claims for international protection are often rejected based on the justification that the determining authority or court does not believe what the applicant says.
Deciding on asylum claims represents a specific challenge as compared to most other types of administrative and judicial procedures. With a limited range of verifiable evidence, decision-makers have to assess whether a future risk prevails at a distant, relatively unknown place, with this decision having vital consequences on the life, physical integrity and human rights of a person. As a result, a high level of uncertainty is inherent to the system, increased caution is necessary and specific rules apply for evidence and credibility assessment.
Credibility is: A statement, which is capable of being believed.
Credibility is not: Definitely true.
Credibility is not: The overall trustworthiness of the asylum-seeker.
Credibility is not: A statement actually believed by a particular interviewer.
Factors determining credibility
There is no infallible and fully objective means to determine whether an applicant’s statements are genuine. However, international and national jurisdictions have utilized credibility indicators against which the applicant’s statements and any other evidence submitted by the applicant are assessed. These factors are: internal credibility; external credibility; plausibility; and demeanor. The limitation of “demeanor” as a measure of credibility is important. In working with credibility indicators, it is essential to note that no single credibility indicator is a certain determinant of credibility or non-credibility.
Internal credibility is the assessment of a person’s testimony based solely on her or his own statements and other evidence submitted. Two key factors often referred to in this context are the level of detail (or vagueness), and the degree to which the applicant has been generally consistent (or contradictory).
Sufficiency of detail and specificity
The interviewer must assess if the level and nature of the detail provided by the applicant is reasonable and indicative of a genuine personal experience by someone with the applicant’s individual and contextual circumstances (age, gender, region of origin, education, etc.). The assumption underlying this indicator is that a person who is relating a lived experience will be able to recall and recount the experience in detail, including, for example, sensory details of an event, such as what he or she saw, heard, thought or felt. It is expected that this recall will be greater than for someone who has not had this experience. This then translates into the assumption that vagueness, brevity or an inability to provide information with regard to asserted material facts may, when the individual and contextual circumstances of the applicant have appropriately been taken into account, be considered to cast doubt on the credibility of the asserted facts.
There is no agreed definition of the term ‘consistency’. It is understood to comprise a lack of discrepancies, contradictions, and variations in the material facts asserted by the applicant. The use of the indicator ‘consistency’ is based on an assumption that a person who is lying is likely to be inconsistent in his or her testimony, presumably because it is considered difficult to remember and sustain a fabricated story; and/or when challenged, it is assumed that individuals who are not telling the truth try to conceal their inconsistencies by altering the facts. The converse supposition appears to be that if applicants actually experienced the events they recount, and are truthful in their statements, then they will broadly be able to recall these events and related facts accurately and consistently.
Consistency may be viewed over the course of an interview, over several interviews, over the comparison between oral statements and written, or among any similarly gathered evidence from the applicant.
Some inconsistency may be tolerated. It should be contemplated by the decision-maker that certain factors may lead to inconsistency that are not necessarily indicative of a lack of credibility. These could be traumatizing events, or events where a person’s ability to store the information in the brain is compromised due to fear, adrenaline, or other external forces.
For example, the phenomenon of dissociation can lead to gaps in time in a person’s story. There is a well-known journalist who described this happening to him: He was in Afghanistan covering the war and traveling with the U.S. troops. One day an enemy up on a hill opened fire on him and a US soldier. The journalist recounts scrambling behind a large rock and then has the distinct memory of the US soldier retrieving his weapon and firing a single shot up towards the enemy fire. He recalls being astounded at the determination in the soldier to fire this one shot. In reality, the soldier emptied most of his entire magazine up into the hill. Dozens of bullets. The journalist was suffering from dissociation due to his panic and he was unable to store the information of the scene in its entirety. His brain recognized and stored only the firing of the final bullet.
Dissociation is a common explanation for differing bystander accounts of a single incident. When an armed robbery occurs in a crowded store, some people may report a white person, between ages 25-35, wearing a blue sweatshirt. While others will report a Hispanic person, over 45, wearing a black t-shirt. These people are often completely convinced of their version of events. Yet, because of the trauma of the situation, the human brain will omit some information, focus on other information, and improperly store further information. These possibilities should be considered in the context of asylum seeking, where the interviewee may be the victim of grave events seriously disturbing his or her memory and recollection of events. Such inconsistency, gaps, or implausible aspects should not necessarily be assumed not credible.
External credibility refers to a comparison between the applicant’s statements and other evidence and other sources of information, especially country of origin information.
Consistency with information provided by other witnesses
Consistency in the facts asserted by the applicant with any statements made
by dependants, other family members or witnesses, may be considered an indicator of credibility. But, personal interviews of dependants should not be conducted with the aim of establishing contradictions and inconsistencies. In particular, UNHCR cautions against a reliance on the statements of children to undermine the credibility of statements by a parent or parents. If any inconsistencies that are material to the determination of the principal applicant’s claim arise during an interview with family members or dependants, the principal applicant should be given the opportunity to clarify these.
Consistency with available external information (Country of origin information)
This indicator requires that the assessment of the credibility of the material facts that the applicant asserts takes into account what is generally known about the situation in the country of origin or place of habitual residence. It should consider accurate, objective and time-appropriate country of origin information (COI), as well as any specific information or other expert evidence such as medical, anthropological or language and document verification analysis reports.
When looking at this credibility indicator, an interviewer should not necessarily find the applicant credible because his or her story is very similar to another’s from a similar place; nor should the interviewer quickly conclude the applicant is not credible if the story differs greatly from others’ stories. Research should be broadly done through recognized sources and should not be precisely compared to the story relayed by another asylum seeker, whose ultimate veracity the interviewer is incapable of knowing.
COI is not a lie detector: it provides the wider context for the assessment of an asylum claim, yet it cannot tell whether the applicant is truthful, neither can it decide whether the claim is well-founded. The role of COI is to corroborate, question or put into context the applicant’s statements and other evidence. The increasing availability of up-to-date COI may help reduce the margin of error in decision-making.
Factors to be used with caution or not at all
Plausibility – use with caution!
Plausibility’ may be considered by some to mean no more than ‘credible’. However, a range of other terms has been utilized in an attempt to capture it’s meaning, including: ‘likelihood’, ‘reasonableness’, ‘probability’, and ‘common sense’. However, an assessment of whether facts presented by an applicant seem reasonable, likely, or probable, or make common sense, risks becoming intuitive and being based on subjective assumptions, preconceptions, conjecture, speculation, and stereotyping, rather than on objective evidence. A fact is not implausible because it would not occur in a European Union (EU) member state or in the personal life of the decision-maker. Nor is a fact implausible simply because it is exceptional or remarkable.
Interviewers should not be tempted to form a view on the credibility (whether positive or negative) of an applicant’s asserted age, ethnicity or sexual orientation based on stereotyping or their physical appearance.
It should be noted that UK law and guidance provide that the indicator ‘plausibility’ should be taken into account only at the advanced stage in the procedure at which consideration is given to applying the benefit of the doubt.
An example of an historical flawed use of ‘plausibility’:
On 7 April 1944, Rudolf Vrba and Alfréd Wetzler, two Slovakian Jews, escaped from the Auschwitz concentration camp. Wetzler compiled a report, detailing information about the camp’s geography, the gas chambers, and the numbers being killed. This report came to be called the “Vrba-Wetzler Report”. In June 1944, the United States received this detailed information. Prior to this information, with few exceptions, the reports and information received by the allied forces were not taken seriously and were even dismissed as atrocity propaganda. And even after the report, the Roosevelt administration waited four months before authorizing its release, as there was an issue of believability. Although this report had much more detail than previous information, and there were similarities to previous reports, the world did not seem to be ready to accept the existence of massive extermination camps.
Demeanor – Not a viable credibility factor
The term ‘demeanor’ describes the outward behavior and manner of a person, including his or her manner of acting, expression or reply (for example, hesitant, reticent, evasive, confident, spontaneous, direct etc.), tone of voice, modulation or pace of speech, facial expression, eye contact, emotion, physical posture, and other non-verbal communication.
The use of demeanor as an indicator of credibility appears to be based on an assumption that a certain demeanor is indicative of credibility or non-credibility. However, it is an assumption that is highly flawed. Evidence shows that the demeanor people may consider as clues to deception are unreliable. Looking for behavioral signs of deception may reveal behavioral signs of anxiety, which is clearly problematic in the context of the asylum procedure.
Demeanor is shaped by the individual’s personality traits, age, gender, sexual orientation and/or gender identity, maturity, culture, social status, education, psychological and physical state, and their situation within the context of the asylum procedure. A reliance on demeanor overlooks the fact that there is no norm to the way someone tells the truth.
A determination of credibility by reference to demeanor has a subjective basis that will inevitably reflect the views, prejudices, personal life experiences and cultural norms of the decision-maker. As such, there is widespread recognition in jurisprudence, guidance, and academic literature that demeanor is an unreliable indicator of credibility.
How to apply the credibility indicators to a given case
Using a structured approach to credibility determination will reduce the subjectivity in assessing the credibility of the material facts presented by the applicant.
Credibility assessment must be structured
Credibility assessment has to be conducted in a structured manner, using a set of clear indicators. The applicant’s statements and other evidence should be assessed “in the round” using clear credibility indicators; credibility findings should not be based on a single indicator.
Credibility must be determined for material facts
Credibility indicators should be applied in relation to materials facts. All the material facts should be assessed using the various credibility indicators, and a final conclusion should be drawn on whether to accept the material facts, or not, following a careful analysis.
The interviewer must make findings
The interviewer should consider each material fact and make findings of credibility on these facts alone. The interviewer should not determine credibility based on the demeanor or likability of the applicant, nor on any commonalities or differences between interviewer and applicant. By addressing each material fact and determining the credibility of the fact, the interviewer is less likely to rely on personal bias (however unconscious and unintended such bias may be.)
The applicant should be given an opportunity to explain any discrepancies
A negative finding in relation to a material fact should only be reached once the interviewer has taken into account all the various credibility indicators and has considered the background of the applicant and, when given the opportunity, the applicant has failed to produce a satisfactory explanation for the lack of detail or inconsistency. An applicant for asylum may have endured excessive trauma and he or she may have a perfectly credible explanation for an omission or inconsistency. Due to the nature of the applicant’s background [expand on this – educational level? youth? cultural background prescribing shame about certain types of abuse e.g. sexual, based on orientation, etc, learnt lack of trust of figures of authority], he or she must be given a chance to correct, explain or elaborate on material facts that the interviewer has initially found not to be credible.
This is true, for example, for women who are victims of sexual violence. In many cultures, even though they are victims, and we would not hold them responsible for their victimization, nonetheless, there exists a common fear of speaking out. Women who are victims of sexual trauma may fear their husbands will leave them, their father or brothers will disown them, or other fears. As a result, they may not want to walk about their trauma. They may be incredibly reluctant to provide detail or, once shared, they may refuse to return to the subject. Similarly, and perhaps even more so, a man who is the victim of sexual violence may be virtually unwilling to share the details of his trauma. He may fear condemnation, he may fear being revealed as homosexual, or thought to be homosexual; he may have a variety of social and cultural blocks to providing detail. He may play down the event initially, only to later reveal upon questioning the true nature of the incident. He may be totally unable to reveal the nature of the event if the interviewer is also a man. Such discrepancies should be considered as part of the person’s entire flight history and should be tolerated when possible.
Similarly, young people, or those without significant standard education, may be intimidated by the interviewer, or fear being viewed as ignorant. They may try to hurry through events that have shameful emotions attached, even if the event was perpetrated against them and they are victims. The decision-maker should exercise patience and strive to understand the perceived power differential between him- or herself and the asylum seeker.
Credibility assessment is a shared duty
The interviewer maintains an important role to effectively interview the applicant. The interviewer cannot make a valid determination of credibility based on a poorly conducted interview. As noted, the interviewer should exercise patience and should strive for understanding of some of the basic difficulties common to the work of interviewing asylum-seekers. An interpreter should always be provided if the interviewer does not speak the language and all aspects of the interview must be translated throughout. There should be no side conversations either between the asylum-seeker and the interviewer, as important information could be missed, nor between the interviewer and the interpreter, as this may make the asylum-seeker distrustful. Consideration should be made to gender and sexual orientation issues, with particular attention to sexual violence, against women or men. And a young asylum seeker, or someone lacking in standard education, should be given more latitude and effort. [such as – rushed / unsatisfactory or no interpretation, not offered interviewer gender of preference etc]. If the applicant omits seemingly important details, the interviewer has a duty to inquire and flush out what detail the applicant may be able to describe.
Determining credibility is neither intuitive nor easy. Commonly used conceptions of credibility, such as eye-contact or volume, should not be used in determining the credibility of an asylum seeker. Rather, the four primary factors: sufficiency of detail and specificity; internal consistency; consistency with information provided by other witnesses; and consistency with available COI; should be applied in a structured way to material facts. The interviewer maintains a duty to ask necessary questions to elicit detail and specificity and must give the applicant a chance to explain any inconsistencies.