END FGM NETWORK - PowerPoint Presentation

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END FGM NETWORK TRAINING on FGM AND ASYLUM1 AND 2 June 2016

NETWORK

CREDIBILITY OF CLAIMS PERTAINIG TO FGM IN THE EU CONTEXT

UNHCR

Bureau for EuropeSlide2

Three main problemsLack of systematic data collection on gender related claims to inform policy response and monitor qualityLack of harmonized decision makingLack of a gender sensitive asylum proceduresRejection of asylum claims mostly based on lack of credibility including in asylum claims related to FGMSlide3

Credibility in gender related claimsResearch (Beyond Proof, UNHCR 2013) suggests that many claims relating to FGM are rejected for lack of credibilityAssessing credibility can be tainted by assumptions and gender stereotypesOverall, women tend to be less believed than men when they claim refugee status on gender related grounds, despite evidence suggesting widespread or systematic forms of gender based violence against women and / or girls in their home countries.Slide4

FacTors affecting credibilityAffecting disclosure and credibility are stigma, shame and fear of rejection by family and communityApplicants may feel unable or reluctant to disclose information for many

reasonsOther factors which may inhibit disclosure include the effects of trauma,

other mental health problems, lack of trust in authorities, fear of rejection or ostracism, and fear of serious harm as a reprisal but also lack of or limited education

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FGM and the CEAS2nd generation EU asylum legislation has brought improvements in terms of standards and claims related to GBVRecast instruments, QD, APD and the RCD now reflect a greater sensitivity towards gender related persecution and recognize that FGM is a serious human rights violation and can constitute a ground for persecution based on MPSGHowever, other grounds can also be invoked in cases involving FGM (religion, (imputed) political opinion)Also the best interests of the child principle of article 3.1 CRC has been firmly embedded in EU Asylum acquisSlide6

Recast Asylum Instruments (CEAS)- the APDRecital 32 APDexamination procedures should be gender-sensitive. personal interviews should be organised in a way which makes it possible for both female and male applicants to speak about their past experiences in cases involving gender- based persecution. recognises the complexity of gender-related claims in procedures based on the concept of safe third country, the concept of safe country of origin or the notion of subsequent applications. Slide7

Recast Asylum Instruments (CEAS)- the APDAll (dependent) adults incl. women should have access to the asylum procedure (Art. 7(1))Interviews take place w/o presence of family members (Art. 7(2))

Children in families can seek asylum and have a personal interview (Art. 7(3) and (5); Art. 14(3))

Article 11(3)(d) APD allows caseworkers to seek advice from experts on particular issues (medical, cultural, religious, child-related or gender issues)

APD recognizes special procedural needs of victims of torture incl. GBV and FGM (Art. 4(3) training of authority; Art. 14(1) recognizes impact of torture on disclosure

)Article 15(3)(b) requires access to a same-sex asylum interviewer and interpreter Exemption from accelerated procedures (But challenge to identify PSN) – Art. 24(3) Slide8

A credibility assessment involves judging whether an individual is:Being deliberately deceptiveMistaken about information conveyedUnable to provide necessary informationCredibility

AssessmentSlide9

Assessing credibility is complicated by several factors: Most evidence consists of oral statementsIndependent corroboration can rarely be obtainedThe different cultural and linguistic backgrounds of the asylum-seeker and interviewerCommunication is often through an interpreter

Cases of post-traumatic stress disorders make it hard for asylum-seekers to recall or convey past experiences

Credibility AssessmentSlide10

There is no common approach to credibility assessment within the EUThrough APD study, FDQ project, and observation of State practices in EU: Common trend - negative decisions often made on credibility grounds Particularly challenging aspect of decision-making for decision-makers

Credibility AssessmentSlide11

Lack of common understanding of key concepts of credibility assessmentLack of harmonized approaches & different legal traditionsLittle guidance in EU asylum acquis Limited UNHCR guidanceLimited jurisprudenceVery limited guidance by EU asylum determining authorities on credibility

Credibility AssessmentSlide12

Looked at the practice of credibility assessment in several EU Member States Examined credibility assessment for adult asylum seekers Highlighted the importance of a multi-disciplinary approach

Beyond Proof: Credibility Assessment in EU Asylum Systems (2013):Slide13

Principles and standardsLimited guidance (Art.4 QD + Art.10(3) APD, general principles EU law) + different national legal traditions but not unfettered discretion: Shared duty to substantiate Individual assessment

Objective and impartial assessment Evidence-based assessmentSlide14

Principles and standards Focus on the material facts Opportunity for applicant to comment on potentially significant adverse credibility findings

Credibility assessment based on entire evidenceSlide15

Principles and standardsClose and rigorous scrutiny Benefit of the doubtClear and unambiguous credibility findings and a structured approach+

Principle of Best Interests of the Child Principle of Child ParticipationSlide16

Multi-Disciplinary ApproachRequirement in EU law for individual, objective and impartial assessment Requirement to take into account applicant’s individual and contextual circumstances, his/her individual position and personal circumstances, incl. background, gender and age

Factors span disciplinary fields of neurobiology, psychology, anthropology, sociology, cultural and gender studiesSlide17

Credibility indicators?UNHCR Handbook (para.204) and Art.4(5)(c) QD: Applicant’s statements “must be coherent and plausible, and must not run counter to generally known facts

” In practice:

Sufficiency of detail and specificityInternal consistency of oral and/or written material facts asserted by applicant consistency of applicant’s statements with information provided by family members and/or other witnessesSlide18

Credibility indicators?consistency of applicant’s statements with available specific and general information, incl. COIPlausibilityCoherence

Demeanour - Report notes limitations of demeanour

as indicator of credibility Indicators identified in ‘Beyond Proof’ need to be applied in a child-sensitive manner for children’s claims.Slide19

Key Findings on CREDIBILITY of ChildrenEU Member States need to have regard to child-specific forms of persecution when assessing children’s claimsThey must ensure that the best interests of the child are a primary consideration throughout the process. Little guidance available on how to gather the facts and assess credibility in children’s asylum casesSlide20

Key Findings on credibility of childrenCredibility assessment varied from country to countrySometimes little distinction made between what was expected of child and adult applicantsSome considered age and stage of development as mitigating factors when assessing children’s testimony. Slide21

Key Findings on credibility of childrenUnaccompanied asylum-seeking adolescents have to cope with their precarious status as asylum-seekers together with the many challenges related to adolescence itself, a phase of life involving tremendous physical and emotional changes. There is a need for guidance on, how best to elicit and assess testimony with a view to ensuring quality and consistency Slide22

key Findings on credibility of childrenThe credibility indicators need to be applied in a child-sensitive manner, taking the child’s individual and contextual circumstances into account a) Internal consistency:

- Decision-makers would benefit from more exposure to the scientific evidence on children’s memory, including the impact of trauma on memory.Slide23

Key Findings on credibility of childrenb) Plausibility: - Great care needs to be taken in a cross-cultural and cross-generational context -

difficult for an adult to judge what is plausible, reasonable or common-sensical from a child’s perspective in a foreign setting, and COI cannot always provide the necessary background information.Slide24

Key Findings on credibility of childrenc) demeanor : Problematic indicator, should not be considered determinative of credibility

shaped by many factors, including gender, culture, physical and mental healthBut may serve to prompt or guide questioningSlide25

key Findings on credibility of childrenMore clarity is needed on the threshold for establishing credibility, on what ‘the benefit of the doubt’ means, and how it applies in adult and children’s cases.Slide26

The way ahead: UNHCR recommendationsTo ensure COI is more gender-sensitive (role for new EASO/EAA)To strengthen the capacity of asylum authorities to adjudicate claims relating to FGM (EASO/EEA)Peer review (attitudes burn out)