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- Program in Refugee and Asylum Law
By: Hugo Storey
When evaluating claims for international protection under the 1951 Refugee Convention, refugee status determination (RSD) systems must take special measures to address two phenomena. First, it is “[a] well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations.” Second, it is well recognized that there are particularly grave consequences associated with “getting it wrong;” wrongly refusing refugee protection status could ultimately result in an applicant’s death.
These twin concerns have compelled courts and tribunals around the world to both adopt a lower standard of proof in the asylum context than in other civil or criminal contexts and to recognize that, at least in certain circumstances, there should be a shared burden of proof or a shared duty of cooperation between the claimant and government. Furthermore, decision-makers rely on the notion that asylum claimants deserve “the benefit of the doubt” (TBOD). This notion (sometimes called a “principle” or “rule”) is accorded a prominent place in the UNHCR Handbook. Paragraphs 203-204 provide:
After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements… [I]t is hardly possible for a refugee to ‘prove’ every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
While there has been much jurisprudence on the lower standard of proof and the shared burden of proof, case law on TBOD is surprisingly thin. Countries whose courts and tribunals have embraced TBOD as a principle, including the United States, fail to meaningfully discuss and clarify the principle in legal decisions. Academic literature also yields very little additional analysis. In this sea of obscurity, TBOD appears as a stranded vessel; commentators tend to refer approvingly but without elaboration to the UNHCR Handbook’s formulation of the principle. What the term actually means and when it should be applied are questions left shrouded in relative mystery.
In a 2013 survey of several EU countries, the UNHCR determined that:
Some decision-makers may lack a clear understanding of the purpose and relevance of the principle of the benefit of the doubt, in particular with regard to:
1) the asserted facts in relation to which the principle of the benefitof the doubt is considered;
2) the point at which a consideration of the benefit of the doubt is undertaken; and
3) the criteria and considerations taken into account in determining whether to grant the benefit of the doubt.
The good ship TBOD may well have remained stranded had it not been for the decision of the EU Member States to create a Common European Asylum System and to enact the Refugee Qualification Directive (QD) in 2004. Drafters of the QD note that the 1979 UNHCR Handbook was a source for setting criteria for the assessment of asylum cases as stipulated in Article 4. While TBOD was not specifically incorporated as a criterion for assessment under Article 4(5), commentators have nevertheless felt compelled to explore anew the implications of Article 4 on TBOD.
The International Association of Refugee Law Judges (IARLJ) expresses concern that the terms of Article 4(5) have generated co-existing approaches to assessment of credibility, one under Article 4(5) and one relying on the UNHCR principles of “shared duty” and “benefit of the doubt.”
From within the academic realm, there has also been a significant new statement of position on TBOD. James Hathaway and Michelle Foster advocate that TBOD be understood merely as an aspect of the lower standard of proof, and in that context they question whether it adds anything of substance to the mandate of decision-makers. Given the views expressed in these recent publications, the notion of TBOD and its proper application merits further examination.
TBOD: Current Problems in Application
The dearth of jurisprudence on TBOD bespeaks the fact that courts and tribunals have not found it easy to utilize or build on the 1979 UNHCR Handbook approach. There are three main issues the UNHCR formulation raises: the relationship between TBOD and the burden of proof; the relationship between TBOD and the standard of proof; and, the question of whether TBOD is to be applied throughout all stages of the credibility assessment or only at its “end-point.” While literature and subsequent analyses resolves have paid some attention to the first two issues, it is the third issue has largely escaped legal analysis:
In its classic formulation in the Handbook, TBOD is something that is only given at the “end-point” after the examiner has established certain facts about the applicant’s story and only when there is doubt about certain remaining aspects of that story. The doubt arises because certain essential material facts are neither confirmed nor corroborated by other evidence. It is equally clear, however, that many decision-makers and commentators believe TBOD cannot simply be brought to bear at the end-point, but must be applied throughout all stages of credibility assessment.
This conflict is clearly illustrated in Chan v Canada,  3 S.C.R. 593 (Can.). At  La Forest, J. stated that:
The appellant’s account of events so closely mirrors the known facts concerning the implementation of China’s population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, I think it clear that his quite plausible account is entitled to the benefit of any doubt that may exist. With respect, I see no merit in the approach taken by some members of the court below and by my colleague Major J. to seize upon sections of the appellant’s testimony in isolation. Indeed, I find such a technique antithetical to the guidelines of the UNHCR Handbook (see paragraph 201).
At , Major J., writing for the majority, responded:
My colleague, La Forest J. argues that no conclusions can be drawn from individual items of evidence . . . This approach handicaps a refugee determination Board from performing its task of drawing reasonable conclusions on the basis of the evidence which is presented. This approach is also fundamentally incompatible with the concept of “benefit of the doubt” as it is expounded in the UNHCR Handbook.
In a recent decision of the UK Upper Tribunal, KS (benefit of the doubt)  UKUT 552 (IAC), the panel adopts a similar TBOD approach to the Chan majority, stating:
[TBOD] is a rule or practice that can be applied at any time during an inquiry into some asserted fact(s). It can be applied to the first, or last asserted fact(s) in a series of asserted facts, or any asserted fact(s) in between.
The conflict between a holistic and an end-point application of TBOD has not been fully rectified. Not only can one find examples where these two contrasting positions are asserted within the same source, but variants of both approaches also exist. For some commentators Article 4(5) of the QD is akin to, but not on equal footing with, the UNHCR Handbook’s “end-point” approach. The 2013 UNHCR study, referenced above, “indicated that some decision-makers . . . apply the principle of the benefit of the doubt mid-way through the credibility assessment, before considering the evidence in the round.”
Can the conflict between these two approaches be overcome? Before seeking to answer that question, it is necessary to say something more about the holistic approach. If the holistic approach is at all viable it cannot be in its extreme form, which I label the “pervasive” approach. To apply TBOD to each and every item of evidence would be to ignore that there are certain asserted facts which can and should be accepted or rejected without reference to the notion of TBOD because there is no doubt about them. The pervasive approach also carries a high risk of falling into another error, that of prematurely addressing the ultimate question of risk. It is incorrect for fact-finders in asylum cases to apply the lower standard to each and every piece of evidence except insofar as they are seeking to ensure they are not excluding any asserted fact or item of evidence unless there is certainty or finality about its value or lack thereof.
Meanwhile, it is difficult to see that TBOD can be confined in the way in which it appears to be in the 1979 UNHCR Handbook or in the 2013 UNHCR CREDO analysis reformulation. According to both, the principle only comes into play at the end-point of the credibility assessment, after the decision-maker has sought to accept or reject what asserted facts he can.
Yet, it is hard to see why TBOD should not potentially apply to all stages of the credibility assessment. If there is uncertainty at an initial or intermediary stage such that some item of evidence points one way, whilst another item points the other way, this is precisely the type of context in which the decision-maker should (in this limited sense) give the applicant TBOD.
A resolution TBOD as part of the lower standard of proof
It remains to be seen which of the two main approaches – the “end-point” approach or the “holistic” approach – should prevail or whether they can be reconciled. It was the conclusion of the UK Upper Tribunal in KS at  that it is possible to reconcile the two approaches:
[W]hat is involved in this wider-ranging…holistic approach is simply no more than an acceptance that in respect of every asserted fact when there is doubt, the lower standard entails that it should not be rejected and should rather continue to be kept in mind as a possibility at least until the end when the question or risk is posed in relation to the evidence considered in the round.
Given that the resolution suggested in KS recognizes that TBOD is just an aspect of the lower standard of proof, it might be thought that the “end-point” analysis must be abandoned. But the Upper Tribunal reiterated:
[I]t is legitimate to continue … applying the rule of TBOD in accordance with the “end-point” formulation…so long as it is understood as no more than useful particularization of the lower standard of proof which, as we have seen, affords a positive role for uncertainty when the decision-maker is confronted with an applicant who has succeeded in persuading the decision-maker of certain asserted facts but cannot dispel doubts about all of them and a conclusion has to be reached as to the overall assessment… .[W]e think that…reference to the notion does help … make clear that before any “signing-off” the evidence has to be considered overall. Such an approach also acts as a safeguard against any premature evaluation of the ultimate question of risk…
Acceptance that the “end-point” formulation has continuing validity does not have to be seen, therefore, as fundamentally at odds with my earlier critique of it. My critique is directed to approaches that confine and postpone the assignment of a “positive role for uncertainty” until the end-point. But if the UNHCR Handbook formulation is understood as a specific reminder of the need to accord such a positive role at the end-point, that does not preclude the decision-maker from having accorded the same positive role at earlier stages of the assessment. This approach also resolves the worry that applying TBOD holistically could amount to giving an asylum claimant TBOD twice over. 
Thus, TBOD is best understood, not as an independent principle to be ranked alongside the lower standard of proof, but rather as an integral part of such a standard. The formulation of TBOD given in the 1979 UNHCR Handbook retains its utility but only if it is understood as a reminder that before answering the ultimate question of risk the decision-maker keep in mind all the evidence and put aside only those items that can be eliminated with certainty.
 Hugo Storey is a judge of the UK Upper Tribunal and current President of IARLJ-Europe. The views expressed herein do not necessarily reflect those of the UK Upper Tribunal or the IARLJ.
 A. Grahl-Madsen, The Status of Refugees in International Law, 145-46 (1966).
 In Matter of Y-B, the Board of Immigration Appeals (BIA) sought to distinguish the concept of “burden of proof” from the concept of TBOD, noting that the former relates to the “quantum of proof” whereas TBOD comes into play where there is an “ambiguity” regarding an aspect of the asylum applicant’s claim. The BIA held that, TBOD may be given as to the ambiguous fact in issue. Interim Decision 3337 (BIA 1998). The 2014 edition of Deborah Anker’s leading text, Law of Asylum in the United States, does not record any more recent cases analysing the principle of TBOD in any detail.
 See, e.g., David Matas, Stars and Mud: The Participation of Refugee Workers in Refugee Policy Formation, in Human Rights and Refugees, Internally Displaced Persons and Migrant Workers: Essays in Honour of Joan Fitzpatrick and Arthur Helton 443, 453 (Anne Bayefsky ed., 2005) (naming “use of the benefit of the doubt” as the eighth of twelve essential elements for a functioning refugee determination system); Who Is a Refugee? A comparative Case Law Study (Jean-Yves Carlier, ed., 1997) (identifying a handful of countries whose courts have expressly identified TBOD as a principle or rule); Brian Gorlick, Common burdens and standards: legal elements in assessing claims to refugee status 9 (Oct. 2002) (UNHCR Working Paper No. 68) (“The application of the benefit of the doubt has been widely adopted in national determination procedures and as part of UNHCR’s practices in the field.”)
 See James Hathaway and Michelle Foster, The Law of Refugee Status, 120-21 (2nd ed. 2014):
While it is sometimes said that the claimant is entitled to the “benefit of the doubt” if there is an insufficiency of evidence, this principle in substance adds little to the intentionally low threshold of the test of well-founded fear. That is, because the applicant’s responsibility is only to show that there is a real chance of being persecuted, this standard already accounts for the possibility of “lack of evidence for some of [the applicant’s] statements” [UNHCR Handbook. paragraph 203] said to justify the application of the “benefit of the doubt” rule. Coupled with the shared duty of fact-finding and the ultimate responsibility of the decision-maker to recognise refugee status when warranted on the merits however the claim may have been framed or argued], it is doubtful that there is much that a super-added “benefit of the doubt” principle could, or should, add.
 See Handbook at 46 (“[t]he benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility”).
 See, e.g., UKBA Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012, para. 4.3.4.
 See SR (Iran) v Secretary of State for the Home Department  EWCA Civ 460 (Sedley, J.) (“The critical adjudicative task is to assemble these findings into an evaluation which answers the question posed by law. In asylum and human rights claims, that is the question of real risk, and it is at the point of decision and not sooner that it arises.”)
To the extent that it could be argued that to apply the “end-point” formulation of the rule is tantamount to giving an applicant (impermissibly) TBOD twice over, our answer is that since the underlying premise of the “end-point” formulation is that earlier on in the assessment the decision-maker has afforded throughout a positive role for uncertainty (which we take to be the thrust of paragraphs 195-202 of the UNHCR Handbook), to apply it in this way simply ensures it is not overlooked at one particular (and particularly important) stage.