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3.11 Drafting Witness Statements
Witness statements are probably the first encounter that the UKVI will have with your client and their version of events, it is therefore imperative that a statement is recorded accurately and concisely as it can potentially either enhance or destroy your client’s case. At the tribunal a good statement has the potential to win an appeal and a carelessly drafted statement can impact the favourable outcome of the case.
The point of the witness statement is to tell your client's story, in a credible and persuasive manner, and wherever possible, in their own words.
- Is structured
- Is written in in the client’s words (where possible)
- Contains sufficient and specific details
- Is concise - do not repeat facts
- Is precise
- Uses correct, plain and professional English
- Maintains ethical standards
- Is persuasive
The most common structure used is chronological – in a case were the client fears persecution on return due to their political or religious beliefs, the following chronology might be helpful in setting out your client’s case:
Name, address is country of origin, parents, siblings, wife, children and their location.
Where did they grow up, which schools did they attend, when they left their parents home, when did they get married.
The development of their beliefs and activities:
At what age, why those particular beliefs, how did they showcase their beliefs, what activities did they take part in blogging, attending rallies, demonstrations, vigils etc.
Any acts of persecution:
Were they ever beaten, tortured, arrested, raped, harassed constantly.
The circumstances of their decision to flee:
The event that happened immediately before they left which made them decide to flee.
The escape from the country:
How, when and who assisted, how did they get the money for an agent for example.
Any relevant post-arrival news from her country of origin:
Who did they speak to and how did they communicate?
Relevant post-arrival activities:
Have they been involved in any surplus activities i.e attend church or political groups here in the UK.
- The statement should establish all the client’s facts and it should be written in a way that does not make the reader doubt what is being said by the client. The story ‘must ring true as their story’
- It is important to note that the style of the statement will vary according to the personality, education, culture, and experiences of your client.
- You should ensure that the statement reflects as far as possible the way your client speaks and the language in which they will give oral evidence.
- The client’s perspectives which is based on her experience and perceptions
- What the client did
- What the client experienced
- What the client thought
- Why the client thought that
- Explained from the client’s own point of view their knowledge, beliefs, and feelings
- The client MUST never fall into the trap of explaining actions of third parties when they are not able to do so, otherwise they might find themselves in the unfortunate position of explaining what led her to such a belief.
- The statement MUST clearly distinguish between what the client knows and what the client merely believes to be true. Where the client merely believes something, the statement should explain the reasons for that belief.
- The statement should normally be confined to matters that are within the client’s experience and should not include information that is second-hand (i.e. ‘hearsay’ evidence.) However there may be circumstances where it is appropriate to include such evidence, e.g:
When including hearsay evidence, an explanation of how the client came by the information will be essential.
- if the information is important to the case and cannot be found in any other potential source of evidence.
- If the information was the reason why the client did something.
- DO NOT present the statement ‘in emotional or passionate language when your client's language is actually matter-of-fact or under-stated’.
- DO NOT use ‘expansive, sophisticated or complicated language when your client is actually of little education’.
- Refrain from using phrases like as 'I submit' or 'I confirm’ as they might give the impression statement is not written in your client's words.
- DO NOT ‘embellish a witness' statement with standard passages which you think sound convincing and powerful’.
The amount of detail provided will depend on your client. Some clients can provide detailed accounts of their mistreatment when in their home country, whilst some are just incapable of providing a coherent account of their persecution largely due to the issues around a desire not to recollect these painful memories or as a result of the persecution that they suffered they are unable to recollect these memories.
Some Immigration Practitioners have found that in some instances detail can be a two-edged sword;
‘A detailed and articulate account has on occasion been attacked as well-rehearsed and contrived, just as a hesitant, reluctant or vague account may be alleged to be fabricated. Detail as to specific times and dates in a statement may also be used against your client if she is unable to reproduce the same level of detail in cross examination or if she gives similarly detailed, but inconsistent evidence.’
The API on Assessing Credibility and Refugee Status (Home Office) acknowledges this, saying "a 16 year old boy would not necessarily be able to provide details of his father's political activities and an illiterate farm worker would not necessarily be able to provide details of national political developments despite being a supporter of the political opposition" (para 5.5).
This provides guidance to caseworkers responsible for deciding asylum claims in accordance with the Refugee Convention and the European Convention on Human Rights (‘the ECHR’).
You must always check your client’s final statement against the following documents:
- All UKVI interview notes;
- All statements and written representations previously submitted, whether by you or a previous representative;
- All documentary evidence specific to the client, for example dates of arrest warrants and letters from family members;
- Any medical reports, other expert reports or character references which have been or may be submitted.
- This will enable you to address any potential discrepancies or inconsistencies.
- Each time you read the statement back to the client, remind them to let you know if anything is incorrect, pointing out that an inaccuracy in what may appear to be an insignificant detail may be crucially important. However, you should not rely on the client to point out inconsistencies between the statement and other documents. It is your duty and responsibility.
- The final paragraph should be the statement of truth:
- 'I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.'
- Best Practice dictates that:
- ‘The interpreter should then append to the statement his own short statement that he has read back the contents of the document to the maker of the statement in his or her own language. That should then be signed and dated by the interpreter, whose name should be given.’
- You should provide the client with a translation of her statement if she will not be giving evidence or being interviewed in English.