The new split standard of proof in asylum cases

16 May 2024, 54 mins ago

Historically, individuals seeking asylum needed to demonstrate a well-founded fear of persecution with “a reasonable degree of likelihood” or a “real risk”. This is a lower standard of proof than the “balance of probabilities” in civil cases.

However, the introduction of Section 32(2) of the Nationality and Borders Act 2022 (“the Act”) on 28 June 2022 set out a new two-stage approach to assessing an asylum seeker’s fear. The new two-stage approach considers:

  1. Whether the asylum seeker has a relevant characteristic causing them to fear persecution, and whether they fear persecution as a result; and
  2. Whether the asylum seeker would be persecuted in their country of origin.

Nearly two years since the act came into force, the case of JCK v Secretary of State for the Home Department (Botswana) [2024] UKUT 100 (IAC) finally provides guidance on applying the new standard of proof. In the first stage, the standard of proof is “a balance of probabilities” (evidence is in your favour by at least 51%);  in the second stage, the standard of proof is “a reasonable degree of likelihood” (i.e. more likely than not).

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