Uses and Misuses of Country of Origin Information (COI) in the Refugee Status Determination Process

Country of Origin Information is crucial for decisions on the credibility of asylum applicants’ accounts, and on the risks they would face if returned to their home countries. In the UK, ‘official’ Home Office COI has changed over time, both in factual content and in the balance between information and policy. Country Guidance cases, in which COI is judicially assessed so as to establish ‘factual precedents’, have taken on a prominent role in asylum jurisprudence. However, it is not only the factual accuracy of COI that is relevant but also its discursive form. This paper critically assesses the ways in which COI is used in practice by administrative decision-makers and immigration judges.

Anthony Good*, Professor Emeritus at the School of Social and Political Science at the University of Edinburgh

University of Edinburgh**

Decisions on refugee status depend on the analysis of what has come to be known as Country of Origin Information (COI) about their home country. Does that COI suggest that people of the applicant’s political, ethnic, religious, social or sexual background face persecution back home? Does it suggest that the applicant’s account is credible? Such decisions concern something that may happen in future, so refugee status determinations are risk assessments, whereas most legal processes deal with events in the past. However, one way of showing that I am at risk of persecution in future is to show that I was persecuted in the past. Asylum seekers’ accounts describing past persecution are often the only evidence they have, and decision-makers must decide whether they find those accounts credible in two senses. Is their story internally consistent, without confusion over dates and places; and is it externally consistent with available COI (Weston 1998).

COI is crucial in almost every asylum claim. The UNHCR Handbook (1992:42) notes that ‘knowledge of conditions in the applicant’s country of origin... is an important element in assessing the applicant’s credibility’, while the EU’s Qualification Directive (EU 2011) specifies that the assessment of asylum applications must take into account ‘all relevant facts as they relate to the country of origin at the time of taking a decision’. Although the importance of country information has always been recognized, references to Country of Origin Information, using capital letters and the acronym COI, only gained currency from around 2005 onwards, and despite the growing reification that this symbolises, COI is still not precisely specified. The European Country of Origin Information Network defines it merely as ‘information on conditions in countries of origin of asylum seekers’.^[1] Moreover, European legal systems differ in their procedural treatment of COI (Gyulai 2011: 7).

In response to concerns raised by Bigirinama and Sinon (2021), regarding decision-making on the basis of very limited country information, in a recent Belgian case concerning exclusion from refugee protection under Article 1(F) of the Geneva Convention, this article discusses some general issues arising from the use of COI in asylum decision making. The analysis is based on the status determination procedures followed in the UK, but the questions raised by their use of COI are more general in their application. Three issues can be distinguished analytically though they are not easily separated in practice. How is COI obtained; how is it compiled and presented to decision makers; and how do is it employed in refugee status determination?

The refugee status determination process in the United Kingdom

Asylum applicants undergo initial screening interviews with UK Visas & Immigration (UKVI), followed by detailed asylum interviews to test the internal credibility of their account. If the claim is refused the case owner writes a Reasons For Refusal Letter (RFRL) justifying that decision. Most RFRLs claim that the story lacks credibility, because of alleged inconsistencies or because it conflicts with the COI.

Such refusals entail rights of appeal before an Immigration Judge (IJ) from the First-tier Tribunal. A solicitor prepares the dossier of evidence, but (except in Scotland) the advocate who actually appears in court is generally a barrister. UKVI is represented by a Home Office Presenting Officer (HOPO), usually not a trained lawyer. The appellant is cross-examined by the HOPO, who asks detailed questions in the hope of identifying apparent inconsistencies. In their closing submissions HOPOs attack the appellant’s credibility and cite COI in support of UKVI’s refusal of asylum. The appellant’s lawyer then rebuts the credibility points and offers rival interpretations of the COI. The IJ produces a written determination, including an assessment of the COI.

Many First-tier decisions lead to appeals before the Upper Tribunal. These are ostensibly concerned only with matters of law rather than fact, though that boundary is quite hazy. No further evidence is taken from ordinary witnesses and appellants are often not even present in court, but because asylum decisions must be based on the situation at the date of hearing (Ravichandran), fresh COI is often submitted on their behalf.

COI in the refugee status determination process

Most asylum seekers are not high profile enough to figure by name in news reports or other documents, so the relevant COI concerns broad, generic issues. Virtually every decision on Tamil asylum seekers has to assess the prevalence of torture; the Prevention of Terrorism Act and the culture of impunity this helped create; and the incidence of sexual violence against both male and female detainees. Case owners and HOPOs draw their COI almost entirely from UKVI’s own sources, but barristers usually submit a range of other material too, including generic reports by human rights bodies and reports by ‘country experts’–geographers, anthropologists, political scientists and others with relevant country expertise–linking this general material to the appellant’s personal circumstances. I have written about 650 such reports over the past 25 years.

In the few cases where there is COI pertaining directly to the applicant in person, this is far more telling than the analysis of generic issues, however expertly done. For example, I have written reports on politicians and journalists whose life stories are in the public domain. Even for less prominent applicants, information relating directly to their story makes a great difference. I wrote a report for the appeal of a Tamil man who had been persuaded by friends to help Tamil Tigers gain access to Fort Frederick in Trincomalee Harbour, where he worked as a civil servant. UKVI’s caseworker saw this as lacking in credibility, asserting ‘there is no evidence to support your claim that your Department would be based in an army camp’, and his asylum claim was rejected. His solicitor asked if I could confirm the layout of Fort Frederick. As it happened we had often spent weekends in Fort Frederick rest-house prior to the ethnic conflict. Far from an ‘army camp’ as envisaged by the caseworker, it is actually a 17th-century Dutch fort, containing a few ancient cannon, and wild deer. But my rebuttal of UKBA’s assertion did not depend solely on personal experience; it took only a few moments to locate a map on the Refworld database, showing the government offices inside the Fort.^[2] The success or failure of an asylum claim may depend on such apparently trivial details.

Less dramatically, there are instances where such evidence, while not directly confirming the truth of an applicant’s account, does at least support it. For example–building on my firsthand knowledge of Batticaloa and using Google Earth–I was able to corroborate an asylum seeker’s account by providing a satellite image of the route across a sandbank and lagoon, by which he claimed to have escaped from military custody.

‘Official’ COI

The UK Home Office itself produces ‘official’ COI reports for use by its staff, though the formats have varied over time. In the 1990s, reports produced by its Country Information and Policy Unit (CIPU) were repeatedly criticized for factual errors and questionable interpretations (Asylum Aid 1995, 1999; Gibb & Good 2013). Matters improved after the information and policy wings of CIPU were split up, and responsibility for providing COI then lay with the Country of Origin Information Service (COIS). An Advisory Panel on Country Information (APCI) was also created, later replaced by an Independent Advisory Group (IAGCI) reporting to the Independent Chief Inspector of Borders and Immigration.

Thanks to all this scrutiny, Country Reports came to consist almost entirely of quotations from public electronic sources, with no comment or evaluation by COIS staff themselves. Although this marked a clear improvement,^[3] there were of course still questions over the selection of sources and of passages to be quoted. While the picture was less distorted, new problems arose because the information was less coherent. The wider the range of sources, the more likely they are to express diverse or contradictory opinions. Case workers and judges, lacking detailed knowledge of the country in question, may then find it difficult to make balanced assessments.

More recently still, information and policy functions were recombined in the remit of the Country Policy and Information Team (CPIT). Rather than comprehensive Country Reports, it now produces Country Policy and Information Notes (CPINs) with far narrower focus. For example, the current Sri Lanka section contains Notes on ‘Minority religious groups’ (March 2018), ‘Medical treatment and healthcare’ (July 2020), ‘Sexual orientation and gender identity’ (September 2020), and ‘Tamil separatism’ (June 2021).^[4] As that latest Note exemplifies, policy considerations take pride of place; there is no actual COI in this CPIN apart from brief quotes from court judgments and a hyperlink to a list of sources in a recent Country Guidance case.

The format of these Notes was strongly criticised by the Independent Chief Inspector of Borders and Immigration in a 2018 Report:

the inspection identified a more fundamental problem with COI... that requires urgent attention. In order to achieve the purpose set out by UNHCR and recognised in the Immigration Rules, COI must be not only “reliable and up-to-date”, but must also be presented in a way that permits decision makers to reach their own objective judgements and decisions on individual applications. As currently constructed, the Home Office’s COI products do not do this.

Their title implies, Country Policy and Information Notes (CPINs) combine country information and “Policy”. This is wrong in principle... (ICIBI 2018)

These Notes are usually the main source of COI in RFRLs, but caseworkers may also put specific Country of Origin Information Requests (COIR) to CPIT. In principle this seems better than relying purely on generic COI, but it is not always done fully or accurately in practice. For example, I reported on the asylum appeal of someone claiming to have been a key witness at a Commission of Inquiry into an atrocity for which the government blamed the Tamil Tigers (LTTE), but which others alleged had been committed by the security forces (JA v. SSHD). The caseworker asked CPIT: ‘are persons who gave evidence at risk from the current authorities?’ CPIT’s Response quoted many relevant sources, but its discussion of recent witness protection legislation did not mention the criticisms of this legislation, nor the UN call for it to be revised.^[5]

Moreover, sources are not always quoted accurately, and such errors may prove crucial. This same Response cited a report from the Colombo Sunday Times, but it badly misquoted that article, and this error was, not surprisingly, repeated in the Refusal Letter itself. The Response, implying that it was quoting directly from the newspaper, stated:

The Commission has identified the chief suspect, saying that he had ‘reason to harbour intense animosity against the LTTE for the deaths of his two brothers and two others’.

However, an entire phrase was missing from what the Sunday Times had actually written:

The Commission has identified the chief suspect, saying that he had ‘reason to harbour intense animosity against the LTTE for the deaths of his two brothers and the abduction of his sister by the LTTE’, adding this is a ‘possible motive for committing the crime’ by the suspect along with two others (italics added). ^[6]

Thus the “two others” were not victims of the Tigers as implied in the Response, but possible co-murderers. This error related to the central question in the asylum claim: was the appellant’s evidence significant in establishing the guilt or innocence of the suspects?

Criteria for evaluating COI

Because of the centrality of COI in the determination process, evaluation criteria were developed by the International Association of Refugee Law Judges (IARLJ 2009: 150-51) and their checklist strongly influenced the assessment by the European Court of Human Rights in a Sri Lankan case, NA v. United Kingdom, which stated:

In assessing such material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (para 120).

These criteria have now been adopted in the UK.^[7] However, the detailed critique applied by Judges to COI supplied on behalf of appellants is strikingly absent as regards Home Office materials, though they too are produced by one side in an adversarial process (IAS 2005: 40). In Devaseelan, for example, the Tribunal applied quite different standards to reports from the Medical Foundation (Peel & Salinsky 2000) and the Home Office:

Medical Foundation: ‘this Report is structured as a reply to (or rebuttal of) the Home Office’s reasons for refusing many Tamil asylum claims. Nobody could regard the whole report as anything other than partisan. It is written against the Respondent, by those who have taken the side of Appellants. In its proper place, it is none the worse for that. But it should not under any circumstances be regarded as “objective evidence”’ (para 74).

Home Office: ‘the CIPU Bulletin is also a partisan document, in that it comes from an organ of the Respondent. It is, however, little more than a compendium of material from other published sources, which are listed in the bibliography. [...] The Bulletin is arranged in such a way that the source of each statement in it can readily be traced’ (para 75).

In adopting such reasoning, the Tribunal ignores the selective use of sources in Home Office reports, as well as the fact that they are often misquoted and mis-cited. Moreover, the Medical Foundation report was a summary of medical evidence concerning their Sri Lankan clients. Such systematic research is arguably the very opposite of partisan.

The literary inscription of COI

There is more at issue here, however, than the factual accuracy and “objectivity” of COI. Not only its content is relevant, but also the discursive form in which it is presented. In their book Laboratory Life, Latour and Woolgar were concerned not with the subject-matter of scientific papers but their degrees of facticity. The impact of scientific writing, they assert, depends on processes of ‘literary inscription’:

There is… an essential congruence between a ‘fact’ and the successful operation of various processes of literary inscription. A text or statement can thus be read as ‘containing’ or ‘being about a fact’ when readers are sufficiently convinced that there is no debate about it and the processes of literary inscription are forgotten. Conversely, one way of undercutting the ‘facticity’ of a statement is by drawing attention to the (mere) processes of literary inscription which make the fact possible (1986: 76).

With this in mind, they produced a typology of scientific statements, differentiated according to the degree of facticity they convey. This may be paraphrased as follows:

Type 5: “well-known... and noncontentious facts”: ‘1 + 1 = 2’.

Type 4: bald statements of fact: ‘X behaves in mode Y under condition Z’.

Type 3: ‘modalities’: ‘X appears to behave in mode Y under condition Z’.

Type 2: claims or hypotheses: ‘X possibly behaves in mode Y’.

Type 1: speculations: ‘Future research may show that X behaves in mode Y’.

At one extreme are type 5 statements, whose status as facts is so secure that no explicit reference need be made to them. Type 4 statements represent a strong, but lesser degree of facticity; they rarely arise among specialists, but science textbooks contain little else. Types 1-3 statements include ‘modalities’, verbal or grammatical additions that acknowledge their lesser facticity. Citations are one common form of modality, and their uses illustrate that statement type relates to context rather than grammatical form. For example, citations may occur in type 4 statements to acknowledge the influential prior work of others, whereas a citation in a discussion of possible future work may indicate that a statement merits only type 2 status.

Facts arise when inscription processes are so successful that they become invisible. Science thus appears post facto as the progressive discovery of facts that were ‘out there’ all along. While science is based on “facticity”, legal evidence is assessed in terms of “weight”. Its weight is closely related to its “probative value”, the extent to which it tends to show that a particular proposition is true. There is a crucial difference between “facticity” and “weight”, though, because science is probabilistic whereas common law usually is not. By legal convention, once a matter has been established to the required standard of proof it becomes a fact; its sufficiently high probability is treated as certainty.

Most analyses of ‘official’ COI focus on biases in selecting and presenting material but there are also issues regarding ‘perlocution’ (Austin 1962), the processes of literary inscription employed in trying to persuade decision-makers that COI possesses sufficient authority to be treated as a legal ‘fact’ about how things ‘really’ are in that country.

One well-known illustration was provided by the tendency of Country Reports to distance themselves from sources detailing human rights abuses (Asylum Aid 1995). For example, the October 2000 Country Report on Sri Lanka began as follows (italics added):

The Sri Lankan Government generally respects the human rights of its citizens in areas not affected by the conflict with the LTTE. However, according to the US State Department report for 1999… the ongoing war continued to be accompanied by serious human rights abuses committed by the security forces (CIPU 2000: para 5.1.1).

This passage contains a type 4 assertion on positive aspects of the situation, followed by a type 2 claim (‘according to’) that things may not actually be so benign. Yet in the original source, the US State Department’s (USSD) annual Human Rights Report, these two statements were parts of the same type 4 sentence. The contrasting facticities in the Country Report were an editorial artefact not present in the original source: their effect was to downplay the importance of human rights violations.

Original source: The Government generally respected the human rights of its citizens in areas not affected by the insurgency, but there are serious problems in some areas, and the ongoing war with the LTTE continued to be accompanied by serious human rights abuses by both sides of the conflict (USSD 2000).

Later reports were less crude; indeed, COIS officials made the implausible claim that they contained no editorialising whatever. This is not the case of course. Consider, for example, the issue of freedom of movement for Tamils in Sri Lanka. The starting point for this discussion in successive Country Reports was the annual State Department report. The July 2011 Country Report (COIS 2011: para 25.01) began as follows:

The US State Department 2010 Human Rights Report... noted that: ‘The law grants every citizen “freedom of movement and of choosing his residence” and “freedom to return to the country.” In practice, however, the government restricted this right on multiple occasions.’

‘Infringement on freedom of movement was lower than in the previous year, and citizens were able to travel almost anywhere in the island; in practice police and military checkpoints were still a frequent sight in Colombo and elsewhere, and numerous High Security Zones and other areas remained off limits to citizens.’

‘The government no longer restricted travel by Sri Lankan citizens on the A-9 highway leading north from Vavuniya to Jaffna.’

The State Department report (as quoted by the Home Office here and as given below) consists largely of type 4 assertions, apparent matters of fact involving no doubt or debate.^[8] In the Country Report modalities are introduced in the form of citations and inverted commas, but these are aimed at reinforcing the type 4 facticity of the statement by attaching it firmly to its authoritative source. More seriously though, another, covert modality arises here, because the middle paragraph comes from a completely different section of the State Department report. It replaces the italicised section below in the State Department report itself, thereby arguably distorting its import:

The law grants every citizen “freedom of movement and of choosing his residence” and “freedom to return to the country.” In practice, however, the government restricted this right on multiple occasions. The additional police and military checkpoints on travellers from the north and the east and on movement to and in Colombo remained in effect. The number of formal, stationary checkpoints declined from the previous year, in particular in Colombo. Many observers noted an increase in temporary, roving checkpoints, however, especially at night...

Security forces at army checkpoints in Colombo frequently harassed Tamils. Both the government and the TMVP continued to operate checkpoints in the east that impeded the free movement of residents, especially Tamils.

The government no longer restricted travel by Sri Lankan citizens on the A-9 highway leading north from Vavuniya to Jaffna... (USSD 2011).

Sometimes there are modalities in the source itself. For example, para 25.04 quotes a letter from the British High Commission (BHC) in Colombo (my italics throughout):

‘several Tamil media networks carried the story that police in the Wellawatte Police Division of Colombo had recommenced the practice of registering Tamils. The Democratic People’s Front leader Mano Ganesan was quoted as saying that “This is being conducted only in the city divisions where Tamils live in sizeable numbers”...’

‘I]n response to these allegations, the Police Spokesman Prishantha Jayakody gave a press release from their headquarters in Colombo. He stated that “the police were acting in accordance with the relevant provisions in the Police Ordinance...”.’

The BHC letter includes type 4 statements, in that the existence of the media story and police statement are not in question, nor that registration is taking place. The significance of that registration is in dispute though, so these rival explanations seem to be hypotheses with only type 2 status – unless, that is, one source is seen as more credible than the other, in which case it achieves type 3 status while the less credible source is only type 1. Clearly BHC seeks to favour the police account, which is ‘stated’ rather than ‘alleged’.

Anonymity

BHC letters are atypical sources: they freely express opinions that usually buttress UK policy; even when submitted as evidence in court their authors’ names are redacted; and their sources are not specified. For example, consider the nasty issue of so-called Self-Infliction By Proxy, which has now fortunately been disposed of by the Supreme Court (KV; see also Cohen et al 2017). The July 2011 Country Report (COIS 2011: para 8.35) quoted from a BHC letter citing an anonymous source:

[A Colombo based human rights worker] added that it was well known that many persons who were held in IDP camps at the end of the conflict scarred themselves so that on release they could make allegations that the Sri Lankan government had tortured them.

There may be good reasons to respect the anonymity of local citizens who express opinions critical of their government. That was not the case here, though, and it seemed particularly important, in assessing this particular assertion, to know its source, because–far from it being ‘well known’ that Tamils scar themselves so as to make allegations of torture–I am not aware of any such claim except from Sri Lankan government sources.

In many legal contexts the anonymity of a key witness would be deemed unfair, but where BHC letters are concerned, the Tribunal in LP (Sri Lanka) concluded that they are

compiled by professional diplomats who we consider are skilled and trained in the observation and acquisition of knowledge in the countries where they are based… we do not consider that omissions from sourcing should of necessity negate the value of such reports. [T]hese are reports from a permanent diplomatic post and thus must be compared with the temporary or occasional procedure of a researcher. Their opinions should be given equal value to that of a well-informed, balanced country expert who provides sources (para 205, italics added).

So the information’s provenance is seen as ensuring its facticity, even though its ultimate source is unknown and its immediate source is a party to the appeal, the UK government.

A later case, AN & SS (Sri Lanka), took a far less generous stance towards anonymous evidence from a non-government source, even though it was given by a named expert witness who was cross-examined about it and clearly explained why the source had to remain anonymous:

Who was the ‘former intelligence officer’ who had told Dr Smith about the LTTE database? Dr Smith would not reveal the source of this information, which was given to him in confidence... Dr Smith conceded, however, that he had no empirical evidence that the latter database existed, save what he had been told by his anonymous informant (italics added).

These situations have no parallel in Latour and Woolgar’s analyses, but anonymity surely conveys a significantly lower level of facticity than a normal citation, especially when no reason is given for it. This is not always true in the asylum context, however, at least not when that anonymous evidence is provided on behalf of the state.

Those producing literary inscriptions are not usually aware of the abstract structures underlying their choices of wording. Scientific authors may make clear their preference for one hypothesis over another, but they are not conscious of the role of modalities in conveying this. However, while not always accepting the claims of other researchers, scientists do accept their basic professional competence and integrity. In the scientific literature analysed by Latour and Woolgar, the plagiarism and mis-citation found in much official COI does not arise. They did not need to consider the further complications that facticity also depends on the honesty and professional competence of the writer and the expertise of the reader. Poor citation practices and use of unacknowledged sources detract greatly from COI in the eyes of specialists, but do little to diminish its apparent facticity as perceived by its primary users, decision-makers who are unaware of these failings.

Finally, while both COI documents and scientific papers have perlocutionary aims, the nature of persuasion itself is different. The perlocutionary force of an academic article is a continuous, analogue variable, whereas the persuasive effect of COI is ‘digital’: it either succeeds or fails to tip the decision one way or the other. This may cause problems when materials couched in scientific formats are assimilated into the different processes of assessment operating in asylum courts, which need to reduce the complexities of COI into a set of binary oppositions congruent with the decision as to whether or not an asylum-seeker meets the requirements of the Refugee Convention. The analysis by Bigirinama and Sinon (2021) highlights an apparently extreme example of this.

Uses of COI in refugee status determination

As far as I know, there are as yet no detailed studies of how COI is being used by UKVI under the current system involving Information Notes and Information Requests. There was, however, research by the Immigration Advisory Service (IAS) concerning the previous system of Country Reports and Operational Guidance Notes (IAS 2009; see also Pettit et al 2008; IAS 2010).

Virtually all caseowners (97%) used COI in all or most cases, but only 36% subjected it to analysis (IAS 2010: 18). COIS Country Reports were heavily used, not least because caseowners did not have full internet access. They were limited to material on their office intranet, with few external links (IAS 2010: 31), so they could not fully research some topics, especially unusual ones, and although there was a COI request service, tight deadlines often prevented its use (Pettitt et al 2008: 17; IAS 2010: 31; ICI 2011: 12, 15). COI was not even used at all in some Refusal Letters, or was improperly cited, out-of-date, or inaccurate (IAS 2009; Pettitt et al 2008: 186–9). The Chief Inspector’s Report found that 17% of Refusal Letters ‘contained selective use of COI or... unjustified inferences’ (ICI 2011: 20).^[9] Some ‘did not take into account other conflicting views within the same source’. However, many caseowners did not accept that more targeted COI would make their reasoning clearer, and adopted the ‘unacceptable’ practice of simply copying whole sections of Country Reports into Refusal Letters (ibid.: 24).

HOPOs too, drew their COI almost entirely from official sources. They were significantly more likely to analyse that material than were case owners (IAS 2010: 18), but their primary aim was to pre-empt rival arguments rather than assess the country situation (ibid.: 22). Moreover, the quality of their arguments was highly dependent on the uses made of COI in the Refusal Letter. HOPOs too suffered limited internet access (ibid.: 29), and their workload severely constrained their ability to do research. In any case, many HOPOs perceived NGO sources as biased and of little weight (ibid.: 51-2). For their part, barristers perceived ‘a lack of duty’ among HOPOs, who were suspected of withholding relevant COI in the interests of winning the case (ibid.: 44).

Legal representatives used COI in virtually all cases, but surprisingly the proportion saying that they always or mostly analysed it, was lower than for HOPOs (ibid.: 18). For them too, heavy caseloads limited their use of COI, and they were constrained by reduced legal aid funding (ibid.: 26-7). They did, however, routinely draw on more sources, especially NGOs like Amnesty International and Human Rights Watch.

Virtually all Judge’s determinations refer to COI, though sometimes only briefly, leaving it unclear precisely what COI had been submitted and how it was assessed.^[10] They use COI for various purposes: corroborating information; evaluating expert reports; assessing credibility; and estimating future risk (Townhead, in IAS 2009: 36). Some Judges argued that analysing COI was the legal representatives’ responsibility and judges should merely consider evidence put before them, while others stressed that they themselves should analyse this evidence (IAS 2010: 23). Despite such differences, all were found to treat COI in more nuanced ways than Home Office staff (IAS 2010: 56-7).

Ethnographic evidence in the courts

Most COI, even in expert reports, is obtained from public sources. However, I have also made three visits to Sri Lanka to collect information more directly, accompanying Tony Paterson, a British solicitor specialising in asylum claims by Sri Lankan Tamils.

In 2003 for example, we were able to travel overland to Jaffna, where I spent a day in the local office of the national Human Rights Commission (HRC). Refusal Letters regularly cited creation of the HRC as evidence of an improving human rights situation, so it was clearly important to assess how it was operating. Its Regional Coordinator showed me documentary evidence of the regular harassment to which he was subjected by the armed forces. This kind of information is important in assessing HRC’s capacity to oversee the kinds of improvement constantly referred to in RFRLs. One day observing the HRC office scarcely qualified as fieldwork, but it did allow me to illustrate to judges the practical difficulties involved in monitoring human rights observance on the ground.

However, the attitudes of the court to fieldwork-based reports often displays a reversal from the situation in academia. When anthropologists present seminar papers to their peers, the element most immune from criticism is their own ethnography; ‘I was there’ is a clinching argument unless you are willing to question my competence or honesty. In legal contexts, however, ethnography is liable to be dismissed as ‘anecdote’ and prime authority lies with documents. For example, my field visits led to public domain reports for general use in Sri Lankan asylum appeals. I made clear that I was simply reporting what I was told by individual named informants. My 2006 report (Good 2006b) consisted of paragraphs like this, with informants’ names in parentheses:

[I]nterviewees were asked about the significance of scarring, and about police body searches of persons detained or otherwise under suspicion. The police manual requires them to remove the belts, neckties and shoes of detainees, so they have opportunities to see parts of the body not normally visible (Chandralal, Xavier). Police also examine the chests, elbows, and knees of detainees looking for rough skin possibly indicative of paramilitary training. They routinely carry out body searches (using female officers in the case of female suspects), although strip searching, which was formerly quite common, has been rare recently (Xavier, Ganeshalingam, Chandralal, Nandarajan).

Even so, one tribunal (Santhirakumar Subramaniam) reacted to this report as follows:

Although Professor Good is plainly qualified by his experience and background ... to give expert evidence on the matters covered by [the report]t, he has fallen into the trap of expressing his views freely but failing to identify his sources, except in the most general terms. [I]t is not sufficient for an expert merely to make ex cathedra pronouncements on the various issues placed before him. If his views are to be given any significant weight, he must also state with sufficient clarity how he knows these opinions to be true. Failure to do so is bound to devalue the evidential weight of his opinion (italics added).

I can only interpret this response, which seemed at first sight bewildering, as a kind of genre mistake; a complete failure to recognize the nature of the material and its sources, which were of course people rather than documents.

Country Guideline (CG) cases

Justice and fairness may be called into question if the same COI is assessed differently in different appeals, so in 2000 the Tribunal introduced Country Guideline (CG) cases to assess the COI on issues commonly arising in claims from particular countries. These assessments were then to be treated as authoritative in subsequent appeals involving similar issues.^[11] A CG determination is thus a ‘factual precedent’ to be followed by IJs in similar cases. In S & Others, Laws LJ broadly approved of this, subject to certain caveats:

28. While in our general law this notion of a factual precedent is exotic, in the context of the IAT’s responsibilities it seems to us in principle to be benign and practical...

29. But... there must be safeguards. A principal safeguard will lie in the application of the duty to give reasons with particular rigour. [A]ssessment of the risk of persecutory treatment... may be a complex and difficult task in which the fact-finding tribunal is bound to place heavy reliance on the views of experts...

Many early CG cases wholly failed to live up to such standards; some cited only one source, the then-current COIS Report (MG; IAS 2004: 47). The same cannot be said now, but it is still possible to question the comprehensiveness and balance of the sources used. In FS, for example, a CG case on apostasy in Iran, the Tribunal considered a large body of COI in a seemingly fair and balanced fashion. However, the material on religion came entirely from Christian writers; not a single source was authored by a Muslim scholar. As a result, the tribunal’s analysis was riddled with orientalist presumptions, such as the conflation of Iranian law and Islamic law (Good 2009: 42-43).

Whatever its merits in promoting consistent decision-making, the CG system also poses problems for ‘country experts’, as I have experienced myself on two occasions:

‘the Appellant’s representatives ought to have ensured that Dr. Good’s report addressed... the Practice Directions’ (JDJ).

‘Leaving aside our disappointment that both [experts] (especially Professor Good) should have seen fit to go over old ground…’ (TK [Sri Lanka]).

The problem here is that while lawyers are bound by such ‘factual precedents’, experts cannot be, because the opinions of British judges on the situation in Sri Lanka carry no weight at all, as evidence, for country experts. In weighing up evidence and formulating opinions, it is impossible for experts to ignore some of that information simply because it was pronounced upon by a judge in an earlier CG case. If judges are to reserve to themselves the right to decide what COI is relevant to an expert’s opinion, there seems little point in commissioning expert reports at all.

Conclusions: on the construction of COI

That final point applies all the more strongly because the skills involved in analysing material such as COI are notably underdeveloped among legal professionals. William Twining (1984; 2006) notes that techniques for assessing factual evidence receive little attention in law schools and in the writings of academic lawyers. Being under-theorised, judges’ assessment of factual evidence tends to display

a relatively complacent commonsense empiricism that... has devoted far more attention to the rules of admissibility than to questions about the collection, processing, presentation, and weighting of information... The rationality of the process is by and large assumed; the elusiveness of reality is barely acknowledged (1984: 40).

This seems clearly exemplified in legal approaches to COI. For example, UKVI’s position is illustrated by their arguments in the 2006 CG case LP (Sri Lanka). They were keen to minimise the weight of evidence by Chris Smith, a British security specialist who had interviewed key officials like the Sri Lanka Inspector General of Police. In written submissions to the court, UKVI argued that the expert witness role in asylum cases differed from that in civil litigation. Normally, it argued, experts use their specialist knowledge to interpret the significance of, for example, medical findings. However:

The role of a ‘country expert’... is rather different. [...] It is unlikely that any specialist knowledge is required in order to interpret the information. Rather the role of a ‘country expert’ is to assist with the provision of the ‘raw data’, in terms of providing comprehensive and balanced factual information... Whilst the AIT may be assisted by the opinion of a ‘country expert’, it is important that the tribunal is provided with the factual material upon which that opinion is based, in order to conduct its own assessment of the conclusions to be drawn (original italics).

This was an attempt to reduce country experts to mere gatherers of ‘facts’ for judges to interpret. The reference to ‘raw data’ set the scene for an argument advanced in court, that Dr Smith’s evidence should not be accepted unless he also provided his interview notes made at the time. This argument was no doubt largely tactical, but the very fact that it was deemed worth advancing displays a naive form of Twining’s ‘commonsense empiricism’, an assumption that these notes would be freer from bias and, by extension, that COI exists, prior to its interpretation, as a form of ‘raw data’ out there in the world.

Of course, LP’s barrister resisted this, arguing that ‘a filtering process needs to be applied to the evidence and that is why an expert is needed’. Happily, the judges concluded that ‘in this jurisdiction experts are not merely the providers of raw data but they can be the interpreters of it as well’. But even this does not go far enough. The process of providing COI is not one of filtering or interpreting ‘raw data’; it is, from the beginning, fundamentally and inevitably interpretive by nature.

This exchange illustrates the problems of mutual comprehension faced by lawyers and country experts. Law and social science typically deploy different forms of reasoning, approaches to evidence, and moral stances: law is deductive and syllogistic, empiricist, and normative; while social science is inductive, constructivist, and relativistic (Kandel 1992; Good 2007). There are good reasons for this; legal processes must reach firm conclusions about complex and messy situations, so sooner or later existential doubt must give way to empirical pragmatism. Lawyers and social scientists internalise during their training ‘both a way of talking about problems and the logic that lies behind that way of talking’ (Conley & O’Barr 1998: 135), and mastery of these professional discourses is what makes one a good lawyer or a good anthropologist. We have all invested hugely in acquiring mastery of our own profession’s distinctive approach, so it is often hard to see things from another profession’s point of view. That is why experts often present their conclusions in ways that judges find unhelpful, and why experts are often outraged by the distortions to which their evidence is subjected.

In court settings though, hegemonic power lies with the legal rather than the social science paradigm. It is therefore important for experts to recognise that their reports form a distinct genre with quite different requirements from academic writing (Good 2006a; Good & Kelly 2013). As a trivial example, paragraph numbering is essential because in practice barristers will rarely ask judges to read whole sections or entire lines of reasoning. They hand over marked-up copies of reports on which key paragraphs have been highlighted. This reflects the positivistic legal approach to ‘facts’, that sees them as standing in their own right, rather than as existing in a broader interpretive context.

I end by highlighting the most intractable difference between law and social science–and certainly this statement of mine caused the most consternation among barristers and judges attending a 2003 seminar organised by the Immigration Law Practitioners’ Association and the IARLJ (Good 2004: 377):

lawyers take matters which have been established to the appropriate standard of proof to be ‘facts’, and see their subsequent task as deciding how the law should properly be applied to those facts, whereas for anthropologists ‘facts’ are always products of a particular theoretical approach, and ‘truth’ is at best provisional and contested.

Cases

- AN & SS v. Secretary of State for the Home Department (SSHD)  (Tamils – Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063

- Devaseelan v SSHD [2002] UKIAT 00702.

- FS: SSHD v FS and others (Iran, Christian Converts) Iran CG [2004] UKIAT 00303.

- GJ and Others v. SSHD (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319

- JA v. SSHD [2017] PA/12585/2016 (FTTIAC unreported, 12 January 2017)

- JDJ v. SSHD, HX/32391/2002 & HX/60178/2003 (unreported: 12 June 2008).

- KV (Sri Lanka) v SSHD [2019] UKSC 10.

- LH and IP v. SSHD (gay men: risk) Sri Lanka CG [2015] UKUT 00073

- LP v SSHD (LTTE area, Tamils, Colombo, risk?) Sri Lanka CG [2007] UKAIT 00076.

- MG: SSHD v MG (Desertion, Punishment) Angola CG [2002] UKIAT 07360.

- NA v. United Kingdom (Application no. 25904/07) ECtHR 616, 17 July 2008.

- PS v SSHD (LTTE–Internal Flight–Sufficiency of protection) Sri Lanka CG [2004] UKIAT 00297

- Ravichandran: Senathirajah Ravichandran v SSHD [1996] Imm AR 97.

- S. and Others v. SSHD [2002] EWCA Civ. 539 [2002] INLR 416.

- Santhirakumar Subramaniam v. SSHD, AA/04813/2006 (unreported: August 17, 2006)

- TK v SSHD (Tamils, LP updated) Sri Lanka (Rev. 1) CG [2009] UKAIT 00049 (IAC)

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