Well Founded Fear

There are two key aspects to the possession of a well founded fear. The first is credibility: is the Applicant’s asylum story true? If not, the Applicant has no well founded fear.

The second factor is future risk. Is there a likelihood that the Applicant’s fear would be realised if he/she returned to their country of origin?
The standard of proof for both aspects of well founded fear is that of ‘a reasonable degree of likelihood’. The standard is lower than the civil standard of “the balance of probabilities” and is sometimes referred to as “substantial grounds for believing” or “real risk”. The leading case is Ravichandran [1996] Imm AR 97.

This was further discussed by the Court of Appeal in the case of Karanakaran [2000] Imm AR 271. The Court of Appeal found that the concept of a legal standard of proof, where probabilities are artificially elevated to certainties once a probability threshold is crossed, is redundant in asylum cases. Instead, a decision-maker should simply evaluate the risk on the basis of relevant evidence. The Court held that the first of the following three categories of evidence are relevant for this purpose:

• evidence they are certain about
  
• evidence they think is probably true
  
• evidence to which they are willing to attach some credence, even if they could not go so far as to say it is probably true
  
• evidence to which they are not willing to attach any credence at all.
  

Brooke LJ in Karanakaran stated the following:

"... when considering whether there is a serious possibility of persecution for a Convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur."

The UNHCR Handbook paras 196, 204 and the Qualification Directive at Art.4(5) require that the benefit of the doubt should be given to generally credible accounts.

The low standard of proof should be used for the benefit of asylum seekers and must not be used to their detriment. It is therefore unacceptable to make a finding based on the chance that an alternative explanation for certain matters to that put forward by the applicant is ‘reasonably likely’.