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Credibility, Reliability, and Evidential Assessment

Chapter in book
Authors Gregor Noll
Published in The Oxford Handbook of Refugee Law
Publisher Oxford University Press
Place of publication Oxford
Publication year 2020
Published at Department of Law
Language en
Keywords Evidence, credibility, reliability, benefit of the doubt, burden of proof, standard of proof, discretion, rule of law, predictability, discrepancies
Subject categories Psychology, Law

Abstract

Overall, judgement on asylum evidence is exercised in a difficult context. A long tradition of strong scepticism against a single source speaking about herself in the future tense is a force to be reckoned with. Does refugee law temper these forces successfully? It purports to offer a particular constellation of the burden of proof, the standard of proof and the benefit of the doubt to guide asylum adjudication. However, this chapter demonstrates that this constellation suffers from serious logical deficiencies, and as a result fails to restrain decision-makers’ discretion. Should we look beyond those concepts and rules, then, and search for restraint in proxies for credibility, such as behaviour, coherence or plausibility, that might make its assessment more objective in some sense? Scientific studies drawn from psychology and traumatology suggest that such credibility proxies are deficient as well. In fact, these studies undermine the validity of the proxies laid down in the UNHCR Handbook and the EU Qualification Directive (section 3). Without functioning legal constraints and credibility proxies, is judicial discretion taking too much space? There are strong indications that this is the case. Quantitative studies, including some employing big data, as well as qualitative studies in the social sciences confirm that the allocation of an individual judge is the weightiest factor for the outcome of an asylum case, and allow for the conclusion that evidentiary assessment plays a minor role in it. All this suggests that evidentiary assessment in asylum law is dysfunctional today, leaving the refugee law with the question which strategy to adopt for the future.

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