WITNESS CREDIBILITY 1: A STRUCTURED APPROACH: DEMEANOUR NOT DETERMINATIVE

March 1, 2018 · by · in Civil evidence, Witness statements

This blog has looked at issues relating to witness credibility on many occasions.  Here we look at a decision by the Upper Tribunal in  KB & AH (credibility-structured approach : Pakistan) [2017] UKUT 491 (IAC). This is of general interest.  Issues of credibility are so important in the Immigration and Asylum chamber that a “structured” approach is recommended. The “demeanour” of the witness plays a relatively small part.

 

 

“We alluded earlier to the possible relevance of demeanour in assessment of credibility and stated our own view that it would rarely if ever be of importance in asylum appeals. Illustrative perhaps of why, it was our own reaction to the first appellant’s evidence that throughout he seemed uncomfortable and not always able to give answers to the specific question being asked of him (a number of questions had to be repeated for that reason). However, viewing the evidence as a whole, we bore in mind that we were receiving his evidence through an interpreter and that these features of his oral testimony were as likely to be personality traits not connected to matters going to credence. Hence we decided to attach little negative weight to such shortcomings”

 

THE CASE

The Upper Tribunal was considering an appeal where “the appellants’ case turned in large part on their credibility. If they were not credible, that was the end of it”.   Some general guidance was given about the assessment of credibility.

THE JUDGMENT
“Assessment of credibility
  1. Here again we regard it as important to begin with Mr Wilding’s submissions and in particular his acceptance that the challenge he makes to the appellants’ credibility is solely on the basis of lack of plausibility. That, it seems to us, amounts to an important concession for two reasons. First of all, it represents an acknowledgment that the respondent accepts that in all other respects the appellants’ account passes muster. It is integral to the respondent’s own Asylum Policy Instruction,Assessing credibility and refugee statusVersion 3.0, 6 January 2015 at paragraph 5.4 that:
“if after looking at all the evidence and keeping the relatively low standard of proof in mind, the claimant’s statements and other evidence about the facts being established can be accepted if they are:
► of sufficient detail and specificity
► internally consistent and coherent (to a reasonable degree)
► consistent with specific and general COI
► consistent with other evidence (to a reasonable degree)
► plausible
all indicators must be applied, and the credibility of the account examined in the round …”.
  1. Applying this instruction to Mr Wilding’s own concessions, the first appellant’s account is one that was sufficiently detailed and specific; and internally consistent. Mr Wilding does not dispute either that the appellants’ evidence is also externally consistent, i.e. consistent with specific and general COI and with the other evidence. Given that the Instruction bids caseworkers to apply all these indicators, it appears that Mr Wilding relies exclusively on just one of them. Put another way, his submission entails acceptance that the appellants can have counted in their favour all of the identified “Credibility Indicators” (further expanded upon in paragraph 5.6 of this Instruction) bar that concerned with plausibility.
  1. Second, Mr Wilding’s concession rests the respondent’s case on [lack of] plausibility, an indicator or factor that has been seen by the Tribunal and the courts – as is indeed reflected in this same Instruction – as one that, although in itself valid, requires a certain degree of caution in its application. Thus inHK v Secretary of State for the Home Department[2006] EWCA Civ 1037 case at [28]-[30] Neuberger LJ stated:
“28. F urther, in many asylum cases, some, even most, of the appellant’s story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
  1. Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made inHathaway on Law of Refugee Status (1991) at page 81:
‘In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability.”
  1. Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie inAwala -v- Secretary of State[2005] CSOH 73. At paragraph 22, he pointed out that it was “not proper to reject an applicant’s account merely on the basis that it is not credible or not plausible. To say that an applicant’s account is not credible is to state a conclusion” (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done “on reasonably drawn inferences and not simply on conjecture or speculation“. He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely “on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible”. However, he accepted that “there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant’s social and cultural background”.
  2. Reflecting much the same caution, paragraph 5.6.4 of this Home Office Instruction invokes, inter alia, what was said inY v Secretary of State[2006] EWCA Civ 1223:
“[I]n [ Y] the Court of Appeal stated that in regarding an account as incredible the decision-maker must take care not to do so merely because it would not be plausible if it had happened in the UK. Again, underlying factors may well lead to behaviour and responses on the part of the claimant which run counter to what would be expected.”
  1. The reference by Neuberger LJ at [28] ofHKto the need to consider factors related to plausibility along with “other familiar factors… such as consistency” is also illustrative of the need to avoid basing credibility assessment on just one indicator. We would add that even when focusing just on plausibility, it is not a concept with clear edges. Not only may there be be degrees of (im)plausibility, but sometimes an aspect of an account that may be implausible in one respect may be plausible in another.
31 It seems to us that the indicators identified in the Home Office Instruction (which can be summarised as comprising sufficiency of detail; internal consistency; external consistency; and plausibility) provide a helpful framework within which to conduct a credibility assessment. They facilitate a more structured approach apt to help judges avoid the temptation to look at the evidence in a one-dimensional way or to focus in an ad hoc way solely on whichever indicator or factor appears foremost or opportune. We note that this Instruction draws heavily on case law authorities. However, any reference to a structured approach in relation to the subject matter of credibility assessment must carry a number of important (interrelated) caveats, among the most important of which are as follows.
32 First, such “Credibility Indicators” have to be understood as just that: a mere set of indicators, factors or indiciae. They are far from being a set of necessary conditions or requirements. To seek to apply them as if they were determinative would be unduly prescriptive as well as fatal to the need to ensure a full examination of the individual circumstances.
33 Second, such indicators are not to be taken as an exhaustive list: for example, the list given in the Home Office Instruction does not include demeanour. In our view, that is consistent with established case law which considers that in asylum appeals it will rarely be safe to attach significant weight to demeanour as a factor (see e.g. B v Secretary of State for the Home Department (Democratic Republic of Congo) [2003] UKIAT 00014, para 10: “judging demeanour across cultural divides is fraught with danger”); indeed, we shall mention below what we made of the demeanour of the first appellant. On the other hand, we do not think it possible to exclude that in certain circumstances demeanour may be relevant.
34 Third, it must never be forgotten that credibility assessment is a highly fact-sensitive affair. Whilst having regard to a set of “Credibility Indicators” assists in making sure that, where relevant, the evidence is considered in a number of well-recognised (“familiar”) respects, it does not prevent a decision-maker reaching a decision without going through such indicators step-by-step. For example, their use may be otiose if an individual’s account rests wholly on a physical impossibility (e.g. that he jumped a 6 metre wall unaided) or is riddled with major inconsistencies. Conversely, if for example the individual is a vulnerable person whose account is strongly supported by expert medical evidence, it may not always matter that it contains inconsistency and lack of detail.
35 Fourth, making use of these indicators is not a substitute for the requirement to consider the evidence as a whole; it is rather a way of helping decision-makers organise their assessment ‘in the round’ so as to ensure they do not fail to properly take into account, where relevant, every factor that might tell in favour of or against an applicant (on the importance of taking into account factors telling for (and against) claimants see R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, 4 All ER, 448 at [24]).
  1. Fifth, although not germane to this case, we should not forget, as Lord Dyson reminded decision-makers inMA (Somalia) v Secretary of State for the Home Department[2010] UKSC 49 at [33], ‘the significance of lies will vary from case to case’. Credibility assessment is only part of evidence assessment. Even when the accounts put forward by applicants are not credible, it is still possible in certain (albeit unusual) circumstances for their applications for international protection to succeed.
  1. There are also two considerations specific to the context of EU law and UK law.
  1. One is that use of such a structured approach cannot entirely capture what it is necessary for decision-makers (including judges) applying EU law to undertake when assessing credibility. They are required to base their assessment on Article 4 of the Qualification Directive (paragraph 339J of the Rules) whose terms include an obligation to take into account “all relevant facts as they relate to the country of origin…” (Article 4(3)(a); paragraph 339J(i)) and “the individual position and personal circumstances of the person” (Article 4(3)(c); 339J(iii)). If a finding of past persecution has been made, Article 4(4)(paragraph 339K) requires a particular approach to assessing the risk of repetition. When it comes to deciding whether to excuse a failure by an applicant to confirm their statements by supporting evidence, they must apply the conditions set out in Article 4(5) (paragraph 339L).Article 4(5)(d) QD (paragraph 339L(iv)) requires that ‘the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so’).
  1. The other is that in the UK context, by s. 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, decision-makers are statutorily obliged to consider certain types of behaviour as damaging to credibility.
  1. We have referred the “Credibility Indicators” of sufficiency of detail, internal consistency, external consistency and plausibility as being “well-recognised” (or in Neuberger LJ’s words inHK, “familiar”). We do so because they are broadly the same as those indicators identified in a number of reputable background studies, for example, by UNHCR inBeyond Proof, Credibility Assessment in EU Asylum Systems: Full Report , May 2013; by the IARLJ in Assessment of Credibility in Refugee and Subsidiary Protection Claims under the EU Qualification Directive, Judicial Criteria and Standard s, IARLJ, Credo Project, 2013, p. 35; and by a number of academics, including James Hathaway and Michelle Foster, The Law of Refugee Status, 2 nd edition, Cambridge University Press 2014, p.139. We regard consideration of credibility in light of such indicators, if approached subject to the aforementioned caveats, to be a valid and useful exercise, based squarely on existing learning.
  1. It will be apparent from the above that we do not understand assessment of credibility by reference to credibility indicators to be at odds with the tasks set out in Article 4 of the Qualification Directive; rather their application is simply a way of furthering a more structured approach to those tasks. And, in light of Tribunal and Court of Appeal authority on the proper application of s.8 (SM (Section 8: Judge’s process)Iran [2005] UKAIT 00116; JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878) , the categories of behaviour that this section identifies as damaging to credibility cannot be determinative: as Pill LJ said at [21] of JT (Cameroon) [2008] EWCA Civ 878, it is “no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in section 8 shall be taken into account in assessing credibility.”
The credibility of the appellants
  1. Returning to consider the appellants’ evidence in the round in the light of Mr Wilding’s concessions, it is necessary to ask what are the considerations that count for and against them as regards the credibility of their accounts?
  1. Mr Wilding’s concessions have significantly (and somewhat unusually) circumscribed the ambit of the credibility assessment we need to undertake in the appellants’ case. We take his concessions to entail that we are entitled without further ado to count in favour of the appellants their consistency (internal and external) and their sufficiency of detail and specificity. We would observe that it would have been our own finding in any event that their evidence possessed these qualities. In our view the significant degree of internal consistency of the first appellant’s account would have carried particular weight because there have been a number of occasions in the course of proceedings over the past two or so years when he has had to face questions and provide explanations. (We will return to the matter of the second appellant’s consistency and credibility in general later.) Leaving aside that Mr Wilding no longer sought to rely on the respondent’s reasons for refusal letters, we would observe further that in any event they were flawed by a mistaken reliance on the appellants adducing unreliable “First Information Report (FIR) evidence”. It is now accepted that the appellants had never submitted such evidence. These refusal letters also failed to adhere to the Home Office Instruction to which we have already made reference on “Credibility Indicators” – they did not address, in particular, whether the first appellant should have been given any credit for providing a consistent account.
  1. Turning to consider factors we count against the appellants, we shall first of all address one that Mr Wilding did not label as a plausibility consideration as such, namely the appellants’ failure to claim asylum on arrival. This is not behaviour falling within s.8 of the 2004 Act, but when considering any aspects of the appellants’ statements not supported by documentary or other evidence we are required by Article 4(5)(d) of the Qualification Directive, when deciding whether to excuse lack of confirmation of statements, to take into account, inter alia, whether “the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so”. Given that (i) the delay in claiming was only a few days; (ii) the first appellant was not asked in his asylum interview to provide good reason for the delay; (iii) when the second appellant was asked in her asylum interview for a reason, she stated that she was ill – a matter which Mr Wilding does not dispute; and (iv) the respondent did not rely on any lack of good reason in her reasons for refusals letters in respect of either appellant, we are prepared to accept that there was a good reason for the delay. Even if we had not found that to be the case, we would not have considered it a matter of sufficient importance in assessing the core elements of their claim, which are indeed supported by documentary or other evidence.
  1. Turning then to plausibility, we do regard it as to some degree implausible that the appellants should have left Pakistan so soon after the shop incident. If the first appellant felt that the safety of his wife and children could be secured by them merely moving to live with her mother some 45 minutes away, then the question has to be asked as to why he and his mother also did not see moving away from their house but remaining in Rawalpindi as at least as an interim measure. On the other hand, we consider that it is important when considering the circumstances surrounding their departure to recollect the Court of Appeal guidance in theYcase. Based on the fact that the shop incident represented an escalation in the level of adverse attention directed by the malvis against the first appellant (he said they threatened to kill him), it is equally plausible that he would have seen fit to leave Pakistan quickly. On this matter, therefore, it seems to us that plausibility considerations cut two ways.
  1. We see some, albeit limited, force in Mr Wilding’s submission that it was implausible that the first appellant and the local branch president would have left the police station after only an hour and without having their complaint recorded. From the AMAUK evidence, it appears important to the Ahmadi community to have adverse incidents with the authorities reported to the authorities, even if they do not consider that to do so results in effective protection. At the same time, the first appellant’s and the AMAUK’s evidence was that the police reaction to their complaint did not inspire confidence and it is at least understandable that they took the view that having informed the police what had happened, little else was to be gained by waiting around, particularly as the first appellant was the one who had to decide how to respond to the threats made to kill him that same day.
  1. There is still the matter of the fact that the first appellant does not suggest that by moving 45 minutes away his wife and children were left vulnerable to adverse attention from the malvis. Is that a significant factor pointing against accepting the credibility of the first appellant’s account? We have decided it is not because of the very different profile of the first appellant as compared with his wife and children, who, in accordance with Ahmadi community rules, limited their activities outside their own living quarters. Given that the first appellant had been elected local “Quaid” (leader) in charge of 42 people, we consider it is reasonably likely that he would understand the matter of his own safety as being very different, given that if he remained anywhere in Rawalpindi, the same group of malvis were extremely likely to locate him and re-commence their adverse attention. We do not find it accurate of Mr Wilding to submit that the appellants have never suggested that the family members remaining in Rawlapindi were still at risk: it was the first appellant’s evidence that his brother, who remained in Rawlapindi and in charge of the shop although employing a non-Ahmadi to run it, was “lying low and still looking for an opportunity to escape”.
  1. Put shortly, we do not consider that application of the Plausibility indicator to the evidence in the appellants’ case significantly damages the credibility of their account.
  1. The only other matter of potential significance that we consider can be counted against the appellants is that the first appellant’s sister and brother in the UK did not attend to give evidence nor submit a witness statement. We do not think it good enough for the first appellant to seek to excuse this by saying she would have come if he had asked. He was put on notice earlier that the failure of close family to attend as witnesses may be viewed adversely. At the same time, the appellant’s witnesses did include a cousin, Mr B, whose evidence we had no reason to reject and it did provide some degree of corroboration (as to the events surrounding the appellants’ rapid departure from Pakistan) from within the first appellant’s family circles in the UK.
  2. We alluded earlier to the possible relevance of demeanour in assessment of credibility and stated our own view that it would rarely if ever be of importance in asylum appeals. Illustrative perhaps of why, it was our own reaction to the first appellant’s evidence that throughout he seemed uncomfortable and not always able to give answers to the specific question being asked of him (a number of questions had to be repeated for that reason). However, viewing the evidence as a whole, we bore in mind that we were receiving his evidence through an interpreter and that these features of his oral testimony were as likely to be personality traits not connected to matters going to credence. Hence we decided to attach little negative weight to such shortcomings.
The AMAUK evidence
  1. It will be apparent from our analysis thus far that we consider the AMAUK evidence produced in this case to lend support to their core claims. Mr Wilding has not sought to undermine it. We hasten to add, however, that our acceptance of it is specific to the evidence we had in this case. Given that Mr Shah’s evidence accepted that for the most part the only real filtering that took place of requests by persons for help with reports from Pakistan was in deciding whether they were genuinely of the Ahmadi faith, and that the local branch presidents in Pakistan for the most part simply reported what they were told, we certainly see no reason to treat such evidence as having any elevated status. When considering what was said about AMAUK letters inMNwe also take into account the subsequent reported decision of the Upper Tribunal in AB (Ahmadiyya Association UK letters) Pakistan [2013] UKUT 511 (IAC)which also rejected endowing such letters with any elevated evidential status.
The second appellant
  1. Hitherto we have largely focused on an assessment of the evidence of the first appellant and the issue of his credibility. A principal reason for doing so is that it was not disputed by Mr Wilding that the second appellant is elderly and has health difficulties. We did, however, have a record of the evidence she gave in September 2016 before FtT Judge E B Grant. In broad terms. that evidence was consistent with what she has said in her witness statements and also with the first appellant’s account. During the evidence of the first appellant the bench asked him about two aspects of his evidence which were at odds with that given by the second appellant in her asylum interview, regarding how long after the shop incident he had told his mother about it and whether the police had ever provided any degree of protection to his shop. Given the medical evidence we have regarding the second appellant’s psychological problems, we are minded to accept the first appellant’s explanation for these discrepancies in terms of her lack of understanding. We note that Mr Wilding did not suggest we do otherwise. In any event Mr Wilding’s concession as regards consistency and sufficiency of detail was made in respect of both appellants.
  1. The essence of the second appellant’s evidence was that in Pakistan she had been an active Ahmadi, having the status of “Musi”. Although her ill-health prevented her from going out much, she had encountered abuse directed at her as an Ahmadi when she went to the marketplace.
  1. In light of the above, we conclude that the core account given by both appellants as regards their experiences in Pakistan and their reasons for leaving are credible.
Causes
  1. Mr Wilding’s submission was that even if we accepted the appellants’ evidence as credible, it did not establish that the shop incident was religiously motivated. It was not entirely clear whether his submission was directed at arguing that the shop incident was not persecutory because it could just as likely have been an ordinary criminal act (an Article 9 QD issue) or at arguing that there was no Convention reason or ground for the adverse attention (the Article 10 Qualification Directive issue). We shall consider it as embracing both issues.
  1. Even so, we are unable to agree with this submission. Having accepted the first appellant’s evidence about the background of harassment and threats from Khatme Nabuwaht against the first appellant as credible, we find no difficulty in accepting that he had been targeted for harassment and verbal threats by the malvis, not just when he was at his shop but on journeys from home to get there. We note that the first appellant’s evidence was that they also knew where he lived.
  1. That Ahmadis who are visible to Khatme Nabuwaht can be targeted for threats and intimidation and sometimes violence is borne out by the background evidence, not just that considered and evaluated by the Tribunal inMNbut by the aforementioned UNHCR Eligibility Guidelines of January 2017.
  1. Accordingly we conclude it reasonably likely that the adverse attention experienced by the first appellant was religiously motivated, and the same goes for the lesser degree of taunts and abuse directed against the second appellant when she went to the marketplace. That in our judgement differentiates the shop incidents from an ordinary criminal incident and also suffices to establish a reason for persecution within the meaning of Article 10 QD.
Future risk
  1. We have already highlighted the test we must apply when satisfied (as here) that appellants have proved past persecution, namely that this fact “will be regarded as a serious indication of the person’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated” (Article 4(4) Qualification Directive (paragraph 339K of the Immigration Rules). Implicit in Mr Wilding’s concession that if credible about the shop incident and causes the appellants were entitled to succeed in their appeals, was recognition that, on the basis of the first appellant’s account his role as an active Ahmadi, serving a role locally as “Musi” and “Quaid”, afforded good reasons to consider that such persecution will be repeated. That in any event, is our assessment, particularly bearing in mind the fact that the first appellant (and to a lesser extent the second appellant) falls within the terms of paragraph 2(i) of the guidance in MN.”
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