Treating Like Cases Alike in Refugee Law Adjudication: The Troubling Lack of Consistency in Refugee Status Adjudication within and Across State Parties to International Refugee Rights Instruments

This joint public seminar, on 25th April in the School of Advanced Study, explored the issue of the lack of consistency in refugee law decision making within Europe, the US and Canada. While Refugee status determination (RSD) is considered by many to be one of the most complex forms of judicial decision-making, the purposes of the seminar was to analyse the factors that contribute to this apparent lack of consistency in refugee law adjudication and the efforts made by the states within the jurisdictions discussed to correct this issue.

Hugo Storey, a senior Judge from the UK Upper Tribunal was the first speaker and raised a cautionary observation regarding the discussion of treating ‘like cases alike’. What this means in practice is consistency in the context of fair and just decision-making. Some of the fiercest criticism over the last ten years by academics has been leveled at accelerated procedure mechanisms (such as safe third country lists), which in reality could be said to be consistency-enhancing measures.

Matters in Europe have improved greatly in the area of consistency over the last twenty years. With the implementation of soft law norms and hard law legislation by the EU, such as the Qualification Directive, EU aslyum legisation has done a considerable amount to improve consistency (for example in the area of persecution by non-state actors).

However, despite this legal harmonisation, it has become evident there is still staggering division in recognistion rates between member states.

Sean Rehaag from York University in Canada then spoke of his work on consistency within the Canadian asylum system. He highlighted some alarming discrepancies at 1st Instance and the appeal stage. For example, at 1st Instance, asylum seekers with a lawyer had grant rates of 57%, while non-represented asylum seekers had much lower rates, 15%. This is particularly disturbing, as legal aid has become increasingly restricted in Canada. The new Canada Refugee System, while having its critics however, has created new mechanisms such as an internal appeal system at the refugee board stage and so there is hope of an improvement in consistency levels.

Jaya Ramji-Nogales from Temple University in the US then discussed discrepancy in the US asylum system based on her recent book “Refugee Roulette”. The US has a four level process for people who request asylum and the researchers found discrepencies at all levels. For example in asylum offices at the first level, they found huge disparity between individual officers within the same office for aslyum applicants from the same country. In LA, for example, the success rates given by officers for Chinese applicants  ranged from 1% to 91%. Finally the studies suggested the outcome of a case could also depend on the sex of the judge. Female immigration judges had considerably higher grant rates compared to male judges.

Madeline Garlick, from UNHCR Europe was the final speaker, talking in a personal capacity. She has been looking at the quality of asylum decision-making across Europe and while there has been improvement in the harmonisation of decision-making, there is still work to be done.

For example from data recently gathered by the UNHCR, decisions made relating to subsidiary protection for indiscriminate violence under Article 15c of the EU Qualification Directive, showed large discrepancy between member states grant rates. For asylum seekers from Iraq, grant rates ranged from Belgium – 78% to UK – 10.9%, and for applicants arriving from Afghanistan, Belgium had a grant rate of 62.4% while the UK, 9.7%. Furthermore a recent Syria study showed grant rates ranging from 0% to 99% between individual member states. Grant rate figures presented for the same three countries of origin by the North American speakers for the US and Canada where considerably higher (all over 50%).

There is a real need to investigate the reasons for these discrepancies further. Issues surrounding burden of proof, up-to-date country of origin information and even political motivations, where there have been suggestions that states are marking others as ‘safe to return’ states for political reasons, could all be factors that warrant more in-depth research.

Finally Madeline Garlick acknowledged that the UNHCR as the RSD decision-maker in many countries (in 2011, UNHCR was the sole decision-maker in 54 countries) has had critics in the past but is striving to achieve better consistency through harmonised training programmes.

Proposals for Reform

There were common threads in relation to proposals for reform from the speakers for the North American systems and the EU system. It was suggested that further training and communication is needed between judges. Secondly, harmonisation in recording statistics from the registration of asylum seekers to the final outcome of applications and then the wide dissemination of this data. Finally there is a need for uniform, up-to-date country of origin information.

With lack of consistency comes the very real danger that asylum seekers will go to smugglers in an attempt to pick their final destination where they perceive they have the best chance of success. It is hoped this seminar will help push the dialogue and research forward so high discrepancy figures between states can be reduced and all asylum seekers have a similar opportunity to gain refugee status, regardless of where they seek refuge.

This seminar was organised by the Refugee Law Initiative. For more information please visit their website rli.sas.ac.uk.

Nicholas Maple

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3 thoughts on “Treating Like Cases Alike in Refugee Law Adjudication: The Troubling Lack of Consistency in Refugee Status Adjudication within and Across State Parties to International Refugee Rights Instruments

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