HKK (Article 3: Burden/Standard of Proof): UTIAC 22 Oct 2018

(1) It has long been a requirement, found in the case law of the European Court of Human Rights (‘ECtHR’), for the government of a signatory state to dispel any doubts regarding a person’s claim to be at real risk of Article 3 harm, if that person adduces evidence capable of proving that there are substantial grounds for believing that expulsion from the state would violate Article 3 of the ECHR.
(2) This requirement does not mean the burden of dispelling such doubts shifts to the government in every case where such evidence is adduced, save only where the claim is so lacking in substance as to be clearly unfounded.
(3) Article 4.5 of the Qualification Directive (Council Directive 2004/83/EC) provides that, where certain specified conditions are met, aspects of the statements of an applicant for international protection that are not supported by documentary or other evidence shall not need confirmation.
(4) The effect of Article 4.5 is that a person who has otherwise put forward a cogent case should not fail, merely because he or she does not have supporting documentation. Nowhere in the Directive is it said that a person who has documentation which, on its face, may be said to be supportive of the claim (eg an arrest warrant or witness summons), but whose claim is found to be problematic in other respects, has nevertheless made out their case, so that the burden of disproving it shifts to the government.
(5) When national courts and tribunals are considering cases in which the ECtHR has decided to embark on its own fact-finding exercise, it is important to ensure that the ECtHR’s factual conclusions are not treated as general principles of human rights law and practice.
[2018] UKUT 386 (IAC)
England and Wales

Updated: 20 April 2021; Ref: scu.633769