Revista Temas de Derecho Constitucional

245 Asilo en el reino unido: un derecho restringido There is a required standard of proof. That standard of proof is a reasonable degree of likelihood, as determined by Regina v Secretary of State for the Home Department, Ex parte Sivakumaran [1988] A.C. 98, per Lord Keith at p. 994. Albeit there is a subjective element to this, the test is objective, as determined by Lord Clyde in Horvath v The Secretary of State for the Home Department [2001] 1 AC 489; a decision by the House of Lords (now the UK Supreme Court). A claimant thus needs to prove that there is a reasonable degree of likelihood of persecution. This is said to be a low standard of proof, in contrast to the higher standard required in ordinary civil proceedings, which requires proof on the balance of probabilities, and as opposed to the highest standard sought to be achieved in criminal proceedings, where guilt can only be established ‘beyond reasonable doubt’. In practice, how low is the standard of proof in asylum cases? The reality is that claimants are often destitute and unable to retrieve or access information in their own countries of origin. Asylum seekers fleeing persecution do not tend to bring an evidentiary dossier with them. After an exhausting and perilous journey, claimants present themselves at port or at interview without access to independent witnesses, or to documents or other types of evidence. They then face questioning formulated in a language different from their own, having to rely almost exclusively on their memory of traumatic events. Nonetheless they are expected to provide a credible and reliable, independently verifiable account. The standard of proof may be low, but for a claimant this no doubt represents a high threshold. In response, the state is bound to assess the material provided by the claimant on an individual, objective and impartial basis. How impartial can be an assessment by made same authority who aims to curb migration is up for debate. According to Karanakaran v Secretary of State for the Home Department [2000] EWCA Civ 11 everything capable of having a bearing in the decision must be given weight. That includes the screening interview, the preliminary information questionnaire, the substantive interview, all documentation, medical reports, expert evidence, country Notes and information, and the claimant’s own behaviour, including ‘Section 8’ type conduct - a reference to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The case of JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 entitles the Secretary of State to take account a claimant’s poor immigration history, their failure to present documentary evidence or make a claim at the earliest reasonable opportunity when making a decision in an asylum case. Following from the assessment, a claim for refuge can be accepted or refused. For it to be accepted, and in terms of Para 334 of the Rules, the Secretary of State must be satisfied that the claimant is effectively in the UK, that they are a refugee, and that they are not a danger to the security or to the community of the UK. Also, he needs to be satisfied that refusing their application would result in them being required to go to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group. On the contrary, and following the terms of Para 339, if the Secretary of State is satisfied that there is availability of protection in the Horvath sense, or that the Convention ceases to apply, or that the person is excluded from the Convention, the claim will be refused. The same will happen if the Secretary of State is satisfied that the claimant has misrepresented or omitted facts, or has used false documents, and these factors