Does an asylum seeker have a right to be confronted with inconsistencies or implausibilities in his submissions before a
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Does an asylum seeker have a right to be confronted with inconsistencies or implausibilities in his submissions before a decision is taken? A methodological approach Boštjan Zalar1
Accepted: 2 November 2020 © @ ERA 2020
Abstract Despite the existence of the provisions of the Procedures Directive 2013/32/EU, the case law of the Court of Justice of the EU on the right to be heard and well-established case law of the European Court of Human Rights concerning the requirements of a rigorous judicial scrutiny in asylum cases, the assessment of the credibility of the submissions of asylum seekers in procedures for the determination of international protection remains one of the main challenges of the Common European Asylum System (CEAS), which aims to harmonise basic procedural requirements for the rule of law in terms of the effective protection of rights in the Member States of the European Union. The author’s approach in dealing with the question of whether an asylum seeker has a right to be confronted with inconsistencies or implausibilities in his/her submissions, in order to be able to provide a satisfactory explanation for alleged inaccuracies in his/her submissions before a decision is taken, is a methodological one. In the paper, the author follows a particular interpretative pattern that could also be used in cases of other pertinent and open questions on the interpretation of EU law. Keywords Establishment of facts and circumstances · Evidence and credibility assessment · Right to defence · Burden of proof · Personal interview · Oral hearing · Fundamental rights · Methods of interpretation under EU law This article is a revised and updated speech delivered by the author at the Annual Conference on Asylum and Migration Law, organised by ERA on 17–18 October 2019 in Trier. Boštjan Zalar, High Court Judge, Administrative Court of the Republic of Slovenia. President of the European Chapter of the International Association of Refugee and Migration Judges.
B B. Zalar
[email protected]
1
Administrative Court of the Republic of Slovenia, Fajfarjeva 33, 1000, Ljubljana, Slovenia
B. Zalar
1 Introduction In September 2011, the International Association of Refugee and Migration Judges (IARMJ) joined the project “Towards Improved Asylum Decision-Making in the EU” (also known as the CREDO project), which was launched by the UNHCR and the Hungarian Helsinki Committee. At that time, the IARMJ agreed with observations that the assessment of credibility is often the pivot upon which qualification for international protection turns. Negative decisions on refugee status or subsidiary protection often result from the fact that the key elements of applicant’s statements have not been accepted as credible. The partners in the aforementioned project have drawn attention to the lack of common understanding or a common approach to credibility among Member States of the European Union and to the fact that the EU asylum acquis provides little guidance on this core task of status determination.1 Seven years after the conclu
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