Legal News

To make a successful asylum claim, an asylum seeker must demonstrate that they have a genuine fear of persecution (subjectively) based on (objectively) reasonable grounds. “Credibility” is now central to the success or failure of many asylum claims.

Although theoretically not decisive, in practice, an applicant who cannot persuade a decision-maker of the credibility of their account is unlikely to be recognised as a refugee. Under Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, a deciding authority will take into account a range of behaviours as potentially damaging a claimant’s credibility.

General behaviours and specific behaviours are outlined. General behaviours include those designed to conceal information, mislead, or obstruct/delay the decision-making process. Specific behaviours include (amongst others) the use of false or altered travel documents; failure to take advantage of a reasonable opportunity to claim asylum in a ‘safe country’; and the making of a claim after notification of an immigration decision, or arrest, under an immigration provision.

Despite the wording of section 8, case law directs that a deciding authority must consider such relevant behaviours as potentially (not necessarily) damaging a claimant’s credibility. This is because legislation cannot direct the decision-maker’s fact-finding function. It therefore remains for the decision maker to determine the extent of such damage, if any, on the facts of a case.

Because section 8 is silent regarding the extent of the potential damage to credibility, it remains open to argue that there should be no reduction to credibility; that any reduction should be minimal; and/or that any reduction to credibility is outweighed by the evidence as a whole. Such arguments may be strengthened by reference to the ‘benefit of the doubt’ principle, where appropriate.

Certain behaviours also benefit from ‘reasonable explanation’ exceptions. These provide that if a ‘reasonable explanation’ for the behaviours exist, the decision maker is not required to consider the behaviour as (potentially) damaging credibility. This applies to the failure to produce a passport, amongst others. To provide an example, lack of access to (or confiscation of) passports may be a direct result of the persecution that founds an asylum claim. If this is the case, a ‘reasonable explanation’ clearly exists. A fact-specific analysis is always required, however an applicant may benefit from a wide range of such ‘reasonable explanations’, depending on their circumstances.

Where section 8 does not provide for a ‘reasonable explanation’, for example in relation to the production of a document which is not a valid passport as if it were (under ss8(3)(b)), such arguments cannot be relied upon directly to remove the consideration of such behaviour as potentially damaging credibility. However, in the context of the evidence as a whole, it may be argued that such factors nullify or minimise any potential damage to the claimant’s credibility.

An unprecedented legislative steer, section 8 was a notable step in the development of an increasingly harsh legal and policy environment facing asylum seekers. This has been implemented by successive governments over the past decades, and is seemingly intended to deter potential applicants and reduce the scope for successful claims.

However, as outlined, its impact may be significantly reduced or nullified, depending on the facts of the case. A case-specific analysis is always required to determine whether or not this is possible, and our team are able to advise and assist in all aspects of presenting an asylum application.


If you wish to make an asylum application, please contact one of our immigration lawyers to discuss your case.


Author Oskar Butcher is a trainee solicitor within the public law and immigration department. He has experiences in cases involving: unlawful detention, false imprisonment, deprivation of citizenship, removals, deportation, appeals and related judicial review matters. He works under the supervision of director Bahar Ata.

For more information contact:

Oskar by calling 020 7275 2669 or emailing OskarB@duncanlewis.com

Bahar by calling 020 7014 7398 or emailing BaharA@duncanlewis.com