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ABSTRACT
While all anthropological experts take pride when their evidence plays a vital role in securing protection for an asylum applicant, we also acutely remember the cases in which our research and reports were rejected, particularly when our reports appear to be unfairly rejected. In this paper, I discuss two cases in which the British Home Office argued that an asylum applicant was not entitled to protection because he participated in war crimes/crimes against humanity. However, the evidence provided by War Crimes Unit in the United Kingdom’s Home Office took the form of assertions based on a very poor understanding of Ethiopian politics and limited research. In the first case, the Immigration Judge accepted the evidence submitted by the Home Office and refused the applicants claim for asylum, but on appeal the Home Office withdrew the case against the applicant. In the second case, the Immigration Judge adopted some of my evidence for the applicant but denied his claim. This paper explores the pitfalls of litigation and the ability of the state to tilt the scales of justice against asylum claimants.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 I am grateful for the detailed comments of four different reviewers on this paper.
2 It was subsequently renamed the Special Cases Directorate.
3 An immigration judge and a Home Office Presenting Officer hear at least one asylum claim and three to four other types of appeal per hearing; asylum appeals can last up to four hours.
4 This task is difficult to achieve; indeed IJ’s may reject an experts report for this reason and/or because they are uncomfortable with or unable to comprehend specific cultural issues, such as witchcraft (cf. Bianchini Citation2021).
6 Immigration Judges in the UK tend to rely on Country-of-Origin reports which are produced by the US State Department or by the Country and Policy Information Team in the British Home Office.
7 While the Government rails against ‘abusive’ asylum claims’, my experience suggests that few such false claims reach the appeals process (see: https://www.migrationwatchuk.org/news/2021/09/23/what-is-the-evidence-that-our-asylum-system-is-being-abused).
8 The Tigrayan People’s Liberation Front.
9 See: ‘Letter to the British Foreign Secretary Miliband on Diplomatic Assurances with Ethiopia’ at: https://www.hrw.org/news/2009/09/17/letter-british-foreign-secretary-miliband-diplomatic-assurances-ethiopia (accessed on 6 July 2022).
10 At this point Mr X’s solicitor left the firm and I have been unable to obtain any further information on the case.
11 He submitted a certificate issued by the ICRC indicating that he had been visited by them while in prison.
12 For information on Ginbot 7 see: https://hornaffairs.com/category/organization/ginbot-7/ (accessed 7 July 2022) and US Citation2017.
13 I have copies of his entire file.
14 See: Convention relating to the Status of Refugees | OHCHR. The IJ also cited domestic legislation and Art. 17 of the Qualification Directive.
15 After the Derg fell, its successor indefinitely detained over 20,000 government opponents without charge or trial between 1992 and 1994. ‘The majority were released in 1994. However, several hundred opponents and suspected opponents are still detained and political arrests are continuing with little or no protection in most cases for the human and legal rights of detainees … Most political detainees in Ethiopia have been held either on the basis of repeatedly renewed 14-day court orders or outside the legal and judicial process altogether. More are now being formally charged. The Criminal Procedure Code requires that detainees should be brought to court within 48 h of arrest. They can then be remanded by the judge for 14 days while the offence which they are suspected of having committed is investigated, or formally charged, or released. The 14-day investigation period is renewable without any specified time limit but it has not been judicial practice to renew remands indefinitely. When investigations are completed, detainees must be charged within 15 days or released but there is no specified time-limit before trial. There is no legal provision for “preventive” or administrative detention, that is, detention without charge or trial.’ (Amnesty International Citation1995, sec. 3).
17 Current Home Office guidance on assessing culpability for war crimes under Art. 1F and Art, 33(2) of the Refugee Convention, appears to negate the principle of non-refoulement (see UK Citation2022). According to Henderson, Moffat, and Pickup (Citation2022: chap. 14) the Tribunal has been pushing for a more restrictive view on exclusion which the Home Office subsequently adopted. However, it is clear from their analysis of domestic and international case law that the burden of proof lies with the Home Office in proving its case and that short of certifying the case under sec. 55 of the Immigration, Asylum and National Act 2006 (which did not happen with Y). The Tribunal began its assessment of Y’s claim by erroneously considering the exclusion clause first.
18 In August 2023, I contacted the firm which represented him and was told he was living in the UK. My details were emailed to him, but he has not contacted me.
19 One reader suggested that perhaps the IJ did not selectively site my evidence, rather s/he may not have understood the evidence? Either way, this is an indictment of judicial training.
20 Source: FOI 22693 ‘War Criminals’ (31 May 2012) at: https://www.gov.uk/government/publications/war-criminals
21 Source: ‘War Crimes, Crimes Against Humanity and Genocide’ (archived 27 July 2017) at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/633473/warcrimes.pdf
22 It is important to note that ‘close association’ with a war crime is not necessarily evidence that a person has committed a war crime.
23 Singer (Citation2017, 24) has analysed data on Home Office initial decisions to exclude individuals accused of war crimes and shows that between 2005 and 2008 ‘on average only 0.1 per cent of initial decisions for this reason and 0.2 per cent of refusals’ were made. She also argues that exclusion from asylum results in individuals being granted ‘restricted leave’ of residence for a six-month period when an individual cannot be removed despite Home Office attempts to remove individual at the earliest possibility.
24 See: Nationality and Borders Bill – GOV.UK (www.gov.uk); see UNHCR’s comments on the bill at: https://www.unhcr.org/uk/uk-immigration-and-asylum-plans-some-questions-answered-by-unhcr.html.
25 Since this paper was written, the Supreme Court has ruled that offshoring asylum applicants to Rwanda is unlawful (see https://www.ein.org.uk/blog/supreme-court-rules-rwanda-plan-unlawful-legal-expert-explains-judgment-and-what-happens-next#:~:text=Upholding%20an%20earlier%20decision%20by,be%20persecuted%2C%20tortured%20or%20killed).