The High Court refused an applicant’s request for a certificate to appeal a judicial review decision about the standard of proof used in asylum assessments.
The application concerned whether the “balance of probability”, with the benefit of the doubt in appropriate circumstances, is the correct standard for assessing an asylum applicant’s account of past events. The applicant argued that the question involved a point of law of exceptional public importance and that an appeal was desirable in the public interest.
The applicant relied on an alleged conflict between an earlier High Court judgment, O.N. and I.N. v the Refugee Appeals Tribunal, and a later judgment in N.N. v the Minister for Justice and Equality. The court rejected that argument. It said the judge in N.N. had not set out an alternative standard and had expressly declined to depart from the earlier decision. The court therefore found no conflict between the judgments.
In oral submissions, the applicant also argued for a right to have the issue heard by the Court of Appeal and said differing standards across EU member states made a reference to the EU necessary. The judge found no authority supporting an appeal as of right. She also noted that the applicant had not challenged an earlier finding that no single standard was mandated by the relevant EU directive or international convention. The court concluded that the standard of balance of probabilities, with the benefit of the doubt where appropriate, respected the relevant EU principles and that no EU reference was needed.
The court held that the applicant had not identified a point of law meeting the statutory test: exceptional public importance and desirability in the public interest are both required. It refused the application for a certificate to appeal. The judgment addresses that certificate application; it does not grant an appeal or determine a new asylum claim.