by Ellen Riotte and Sebastian Kraus

Recent tragic refugee deaths in the Mediterranean have proven how difficult it can be to reach Europe to claim asylum. But getting to Europe is just the first step. In many cases, receiving asylum requires evidence of persecution that can be difficult to produce.

European governments have signed international treaties that require them to offer protection to those who have a well-founded fear of being persecuted in their home countries for reasons of race, religion, nationality, political opinion, or membership in a particular group. But if you are a refugee, how can you prove that? Asylum seekers fleeing their countries don’t pack a suitcase with evidence, board a flight, and arrive at their asylum interview with a membership card of a political opposition party.

When asylum seekers file a claim, the first thing that happens is an interview with a government official who decides whether their story is plausible. This is where things can start to get messy. How many people’s lives fit a simple, linear narrative? If you look at your own family photographs, many of them documenting the most important events of your life, can you truly vouch for exactly when and how the milestones they show occurred?

Even if the asylum seeker can produce evidence, the people evaluating their claim may have their own biases. One interviewer at the French Office for the Protection of Refugees and Stateless People noted in her denial of an asylum seeker’s claim that the woman didn’t show any emotion when describing how she was raped. In another case, a man fleeing persecution in Afghanistan told his interviewer he was a driver, but had his claim rejected when he was unable to produce a driver’s license.

The French asylum court routinely rejects official identity documents from the Democratic Republic of the Congo (DRC) as fake, despite evidence from asylum lawyers that the DRC’s low-grade printing presses are the reason for variations in print quality. An example of just how ridiculous things can get can be found in the phallometric tests used by the Czech authorities until 2011, which, by measuring blood circulation in a man’s penis when he was shown pornographic material, could supposedly ascertain whether an asylum seeker was gay.

How can such dubious decision making still be used in today’s data-obsessed world? Today, no business would be launched without a thorough analysis of the market, no matter how small. You wouldn’t buy a house without first conducting careful research to make sure the price was fair. Why are decisions about people’s lives and security made without proper evidence?

Access is one problem. Evaluating evidence for specific aspects of a claim requires knowledge of the region and its language, and ideally a network in the field to access and verify information or documents.

Financial resources are also a problem. Asylum lawyers in France receive about 370 euros from the government for each claim they work on. Reading up on the political situation in the claimant’s country of origin or checking even very basic facts must be done in these lawyers’ spare time. The financial crisis has made things even worse—in the UK, spending cuts have severely impacted lawyers’ abilities to research evidence for claims, while in financially reeling Greece, very limited legal aid is available to a few asylum NGOs only.

Governments and courts conduct their own research on asylum seekers’ countries of origin, but in only a few European countries is this data publicly available and accessible to asylum activists and lawyers.

Even when evidence is available, it is often used improperly. Amnesty International analyzed a sample of asylum claims in the UK that were overturned on appeal. It found that in most cases, judges did not make proper use of the evidence available, erroneous assessments of the applicants’ credibility were made, and even tiny inconsistencies were enough to dismiss applications.

Asylum and migration are two of today’s most contentious issues. They lie at the heart of the question of what kind of Europe we want to live in. In these times of economic hardship, who is in and who is out?

If empathy and a moral obligation aren’t enough, at the very least, we should worry about asylum for selfish reasons. If the legal system does not even make an effort to thoroughly examine the cases of people potentially fearing for their lives, how can we be sure it will treat us fairly when we need it? Only when we can ensure that our legal system works for the most vulnerable can we trust that it will work for all of us.

(published on the Open Society Foundations‘ website on 22 July 2015)