Legal Aspects of LADO from a European Perspective: Struggling with the Burden of Proof?

Abstract

Common rules on most aspects of the asylum process are now in force in the European Union e.g. to determine which State is responsible for determining a claim; on asylum seekers’ entitlements and obligations as regards their reception in Member States; to regulate the asylum procedure itself; and to determine who qualifies for international protection. The so-called EU asylum acquis which resulted in a Common European Asylum System (CEAS) does not stand on its own, but builds on the international refugee protection regime. EU legislation states that the CEAS is to be based on a full and inclusive application of the Geneva Convention relating to the Status of Refugees. In asylum cases the burden of proof is placed on the asylum seeker. Usually states expect asylum seekers to adduce evidence in order to substantiate their asylum claim. In recent years, there appears to be an increasing emphasis on, and interest in, the use of so-called objective or scientific evidence in asylum claims. This kind of evidence has to be placed in the different international (UN Convention on Refugees), European (European Convention on Human Rights, EU Charter, EU Directives) and national legal frameworks (UK, NL). These frameworks include the UK’s opt-outs from the second phase CEAS instruments, as discussed below. Where and how Language Analysis for the Determination of Origin (LADO) comes into the process, and the legal limitations which apply when taking LADO into account as evidence, are the focus of this chapter.