Judges need a working knowledge of social media to handle certain refugee cases

21 June 2023 · Carmel Rickard

When would-be refugees formally apply for asylum, it is standard in some countries for the authorities to examine the applicant’s social media record. There are possible benefits – and possible dangers – in doing so, and a new working paper from the International Association of Refugee and Migration Judges highlights some of these.

It’s no secret that many judges regard social media with deep suspicion. Some even give up their social media accounts, if they ever had them, when they are appointed. And yet a working knowledge of social media is critical if judges are to be effective when faced with certain kinds of refugee case, particularly applications for asylum.

The International Association of Refugee and Migration Judges (IARMJ) prepared a special background paper for its most recent conference at The Hague in May, and it shows why that working knowledge could be essential. The paper quotes from the Global Judicial Integrity Network: ‘Irrespective of whether they use social media or not, judges should have a general knowledge of social media, including how it may generate evidence in cases that judges may decide.’

National government bodies that deal with refugees and asylum seekers and others, are increasingly using social media in their work. In Norway, for example, asylum seekers are asked to hand over their cellphones and Facebook login details when they first make contact with that country’s authorities.

Confiscate

The working paper suggests that blanket policies, like this, to confiscate the phones of asylum seekers need to be seriously considered to see whether they are lawful. There can be no doubt that having an asylum seeker’s phone would be useful to the authorities, however.

It might allow the asylum seeker’s account of their reason for leaving their home country to be checked. If someone claimed to be persecuted due to their high profile on a political issue, that might well be verifiable through their social media record.

Another possibility to be aware of, is that someone who previously actively posted on social media in their home country, might stop posting when they arrive in their country of refuge. Why might this be? Perhaps they fear for the safety of their family members left behind. It is also possible that they begin to post, in the refuge country, under a different name. Again, a court needing to make decisions about the validity of an asylum claim, for example, would need to be alert to the range of possibilities that might explain this behaviour.

Credibility

But what if the asylum seeker’s social media account is deleted during the application process? It could well suggest that the person’s credibility is suspect, but would this always be the case?

The working paper points out that the Handbook on Determining Refugee Status, published by the UN’s high commission on refugees, says that an applicant who claims fear of persecution because of political opinion does not need to show that the authorities in the home country knew of those opinions before the applicant left the country.

There are a number of considerations around this possibility. For example, a well-founded fear of being persecuted or a real risk of suffering serious harm may be based on activities that the applicant for asylum has only begun after leaving the home country.

Factors for decision-makers to consider

The writers say there are several recurring themes from the social media evidence in international protection appeals. These include the question whether the asylum seeker is relying on social media evidence as part of the material supporting their claim? If so, how can that information be accessed safely and lawfully? Should the asylum seeker reasonably be expected to stop their social media activities? How can social media evidence, relied on in an appeal, be preserved?

They also list factors that judges might need to consider:

Malleability: how easily could the social media account have been altered so that what is now seen doesn’t reflect the real account?
Reliability: how do we know that what we are shown truly comes from the person’s established social media profile?
Durability: how long will it last; how long was it live?
Visibility: this would involve examining public/private settings, friends, shares, likes and links from other platforms?
Deletability: could the material be deleted and what would the consequences of that be for fundamental rights?
State inquiries: judges should consider the interest in social media by the authorities of the country of origin; their monitoring of expatriate activities, ‘false friends’ and inquiries on return
Accessibility: how can a relevant social media account be accessed safely and lawfully?
Preservation of evidence: How can relevant social media evidence be preserved and archived?

Carmel Rickard

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