by Colin Yeo

Colin Yeo is a Trustee of Asylos and a practicing barrister at Garden Court Chambers in London, specialising in immigration and asylum law. He is also founder and editor of the Free Movement immigration law website and is regularly quoted by the media on immigration and asylum issues. 

Refugee law is very, very different to refugee casework

The transition from learning refugee law to representing refugees in their cases can be something of a baptism of fire. Students of refugee law learn that a refugee has a well-founded fear of being persecuted for one of five reasons — race, religion, nationality, membership of particular social group or political opinion — and is unable to obtain protection in their country of origin. This is the definition of ‘refugee’ set out in the Refugee Convention. Practitioners of refugee law learn that the vast majority of cases win or lose on evidence, not law. But evidence, unlike argument, is hard to come by.

Nuanced distinctions between subjective and objective fear, the precise boundaries of when ill-treatment tips over into persecution, the international variations on the interpretation of ‘membership of a particular social group’ and so on all fall away when an actual asylum seeker comes forward and needs to win their case. The key issues become whether the person is telling the truth about what happened to them in their country of origin, whether they would truly be at serious risk of harm if sent back, whether there is really a failure of state protection and whether there really is nowhere the person can relocate in their own country. These are what lawyers call questions of fact, not questions of law. A decision on a question of fact is determined — or at least should be determined — by the evidence available, whether the decision maker is a government official or an independent judge.

Lawyers are humans too, contrary to popular belief. But lawyers have their own problems.

This leads us to a further consideration in real life refugee cases. Students may learn in the abstract of the ‘culture of disbelief’ that pervades refugee status determination, but they have no particular cause to consider that the wizard behind the curtain is actually, after all, a human being. The job of a good lawyer or advocate is to persuade this human being.

Human beings have their faults. Some may not be concentrating. Some may be incompetent or poorly trained. Others might have strong political views, including strong negative views about refugees, and others might well be cynical, or at least case-hardened by years of deciding traumatic and traumatising cases. Vicarious trauma and burn-out are real but often unrecognised.

Lawyers are humans too, contrary to popular belief. But lawyers have their own problems. Lawyers have mortgages to pay, they often work for businesses which need to turn a profit, some are more competent than others, they often take the path of least resistance or even cut corners. And they too are often overwhelmed, tired and case-hardened. Time is precious to lawyers, literally: when we are paid for representing refugees, we are paid by the hour.

The main determinant of success or failure in a claim for refugee status is evidence

So, as a network of volunteers, what can we do to help, and how best can we direct our efforts? The main determinant of success or failure in a claim for refugee status is evidence. Imagine a case where the refugee relies on their word alone and some generic reports from one of the major human rights reporting organisations. This is all most refugees are armed with, if that. Compare it to a case where the refugee has managed to obtain personal evidence from their country of origin, has detailed evidence confirming aspects of their account of what happened in the past and has found information on exactly what has happened to others in a similar situation to their own. This second refugee has a much better chance of achieving justice in their case.

To have maximum effect, the information we offer has to be directed to the most relevant issues in the case and be easily readable and accessible to both the lawyer and the ultimate decision maker. In the real world, lawyers are unlikely to wade through voluminous materials and hand pick only the most pertinent morsels for the delectation of the judge. Academic language can be off-putting. A reader in a hurry may not read beyond marginal, irrelevant or unhelpful material. Rightly or wrongly, most refugee cases turn on whether the asylum seeker is believed or not; material that goes to whether the asylum seeker is telling the truth is particularly valuable. The odds are stacked against refugees; it is not just whether we try to help but how we do so which matters.

Making use of country-of-origin information research means increasing the chances for your client to be believed. In our research training webinars for UK legal representatives, we teach you how to substantiate your client’s case with evidence and how external services like ours can save you time.

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