Decoding the Burden of Proof: Towards Open Source Intelligence-Enhanced Evidentiary Fairness in Asylum Procedures

This thesis explores how the use of open-source intelligence (OSINT) could be one of many ways to introduce more fair evidence gathering into asylum decision-making by the Common European Asylum System (CEAS). Particularly, it is shown that under international and EU asylum law, the Refugee Status Determination (RSD) procedure is often characterised by a significant structural asymmetry in terms of evidence production and presentation. Accordingly, the statutory law governing national asylum systems, in a rather straightforward way, seems to establish a somewhat impartial evidentiary setup: both the applicant and the government have to prove their cases, the threshold of proof is lower than in criminal and civil law, and mechanisms exist to compensate for the structural difficulty of producing corroborating evidence. However, within the CEAS system it has been proven repeatedly that these formal safeguards are not actually upheld and are rather steadily compromised through various practices. In particular, very short decision-making periods, the lack of equal availability of legal assistance, limited and not well-reliable tools for the assessment of truthfulness, and the problem related to reliability of country of origin information altogether place most of the evidentiary burden among those groups who, actually, may have the most valid refugee status claims. The integration of OSINT is proposed as a means of partially restoring evidentiary fairness: by enabling the real-time monitoring and contestation of safe country of origin designations, and by providing individualised corroborative evidence through publicly available digital sources within the compressed procedural spaces of accelerated procedures, including at the stage of vulnerability assessment.