‘Catch-22’? : The Assessment of
Credibility in UK Asylum Applications.
Frances Kendall
International Migration and Ethnic Relations One-year master
15 Credits Spring 2020
ABSTRACT
This study aims to contribute to an understanding of how the credibility of asylum-seekers is being assessed in the UK; how narratives are valued by decision-makers and tribunal judges, how applicants’ credibility is determined, and what issues may be found with this process. I conducted interviews with seven lawyers who represent asylum-seekers, one decision-maker and one retired tribunal judge to establish their perspectives on the assessment of credibility in the UK. I then analysed these results through the theoretical framework of the sociology of law, focusing on the theories of Pierre Bourdieu and Michel Foucault. I firstly examined specific problematic areas in the practice of credibility assessment, before going on to explore broader contextual factors which may help to explain such issues. This study found that the greatest problems with credibility assessment in practice were demanding expectations of asylum-seekers and misapplication of the government guidelines on credibility, miscommunications and mistranslations, and a lack of considered reasoning in decision-making. These issues were shown to be driven by five main factors: a culture of disbelief, a lack of resources, information and communication issues, ineffective guidelines and the inherently subjective nature of credibility. The results of this study bring into question the neutrality and efficacy of the current system of credibility assessment in practice and its capacity to protect those fleeing persecution under the 1951 Refugee Convention.
Keywords: asylum-seeker, credibility, Home Office, guidelines, tribunal, lawyer, decision-maker, UK, Bourdieu, Foucault, interviews
Acknowledgements
I would like to thank all of my interviewees who kindly gave me their time for this project; your input has been invaluable.
CONTENTS LIST
1. INTRODUCTION………..……….p6 2. AIM AND RESEARCH QUESTIONS………..………...p7 3. CONTEXTUAL BACKGROUND……….….……..p7-10 3.1. Context……….….……….p7-8 3.2. Assessment Guidelines……….….………p8-9 3.3. Process of Assessment……….………..p9 3.4. Definitions……….p9 4. PREVIOUS RESEARCH………...p10-14 4.1. Guidelines………..…p10-11 4.1.1. Asylum Policy Instruction (API)……….……p10-11 4.1.2. Section 8……….…….p11 4.2. Assessment Process……….…...p11-12
4.2.1. Standard of Proof and Benefit of the Doubt……….…...p11 4.2.2. Poor-Quality Decision-Making………...p11-12 4.2.3. Legal System………...p12 4.3. Decision-Makers………p12-14
4.3.1. Subjectivity……….….p12-13 4.3.2. Pressures Faced by Decision-Makers………;….p13 4.3.3. Culture of Disbelief……….…p13-14 4.3.4. Gap between Theory and Practice……….…..p14 5. RELEVANCE AND CONTRIBUTION………...p14 6. THEORETICAL FRAMEWORK………p14-17
6.1. Bourdieu……….p14-16 6.2. Foucault………..p16-17 7. METHOD………...p17-21
7.1. Research Design……….p17 7.2. Method of Data Collection……….p17-18
7.2.1. Interviews………p17-18 7.2.2. Access to Participants………..p18 7.3. Delimitations………..p19 7.4. Validity and Reliability………..p19-20
7.4.2. Role of the Researcher………p20 7.5. Ethical Considerations………...…………p21 7.6. Interviewee Profiles………...…………p21 8. RESULTS AND ANALYSIS………..p21-47
8.1. What specific areas are seen as problematic in the practice of credibility assessment?...p22-31
8.1.1. Application of Home Office Guidelines and Expectations of Asylum-Seekers………...p22-28
8.1.1.1. Consistency……….p22
8.1.1.2. Plausibility………..p22-23
8.1.1.3. Section 8……….p23
8.1.1.4. Detail, Coherence, Memory and Trauma…………....p24-25 8.1.1.5. Standard of Proof, Evidence and Weight…………....p25-26
8.1.1.6. Narrative……….p27-28
8.1.1.7. Summary………...p28
8.1.2. Justification of Decisions………p29-31 8.1.2.1. Lack of Considered Reasoning………...p29-30 8.1.2.2. Difficulty Appealing Negative Verdicts……….p30
8.1.2.3. Summary……….p30-31
8.2. What broader contextual factors might help to explain these problems with credibility assessment?...p31-47
8.2.1. Culture of Disbelief……….p31-34 8.2.1.1. Increased Importance of Credibility…………...p31-33 8.2.1.2. Benefit of the Doubt………...p33 8.2.1.3. Other Motivations for Rejection………...p33-34 8.2.1.4. Summary………...p34 8.2.2. Lack of Resources………...p34-37
8.2.2.1. Pressure on Decision-Makers………p35 8.2.2.2. Representation and Funding………..p35-36 8.2.2.3. Training and Qualifications………...p36 8.2.2.4. Summary………...p37 8.2.3. Information and Communication Issues……….p37-42
8.2.3.1. Communication within an Adversarial
8.2.3.2. Interpreters………p38-39 8.2.3.3. ‘Workflow’ System………....p39-40 8.2.3.4. Asylum-Seekers and the Legal System………….p40-41 8.2.3.5. Summary………...p41-42 8.2.4. Inefficacy of Guidelines………..p42-44 8.2.4.1. Indicators and ‘Nebulous’ Guidelines…………...p42-43 8.2.4.2. Literal ‘Tick-box’ Application………..p43 8.2.4.3. Summary………...p43-44 8.2.5. Subjectivity……….p44-47 8.2.5.1. Unconscious Bias, Prejudice and Race………….p44-45 8.2.5.2. Performance and Demeanour………p45 8.2.5.3. Objectivity……….p45-46 8.2.5.4. Summary………...p47 9. CONCLUSION………p47-49 10. FURTHER RESEARCH………p49 11. REFERENCE LIST………p50-53 12. APPENDIX 1: Interview Guide for Lawyers 1-7………p54 13. APPENDIX 2: Interview Guide for Decision-Maker 1………...p55 14. APPENDIX 3: Interview Guide for Judge 1………p56
Abbreviations
UNHCR- The Office of the United Nations High Commissioner for Refugees HO- Home Office
DM- Decision-Maker at the Home Office
API- Asylum Policy Instruction guidelines for Home Office decision-makers RRL- Reasons for Refusal Letter from the Home Office
SPOES- Second Pair of Eyes (reviewing decisions) CBR- Case-Based Research Design
‘Catch-22’? : The Assessment of Credibility in UK Asylum Applications. 1. INTRODUCTION
The 1951 Refugee Convention outlined the right to seek refuge from persecution and bound states to protect displaced people (UNHCR, 2011). However, with applications for asylum in the EU doubling between 2014 and 2015 due to an influx of asylum-seekers and refugees in Europe (Eurostat, 2016), many states such as the UK are attempting to limit the numbers of asylum-seekers granted refugee status (Mayblin, 2019). The Office of the United Nations High Commissioner for Refugees (UNHCR) guidelines advocate an objective and lenient assessment of the ‘threat of persecution’ of asylum-seekers due to the difficulty of providing sufficient evidence of refugeehood, yet in order to be afforded the ‘benefit of the doubt’, an asylum-seeker must first be seen as ‘credible’ (UNHCR, 2013; p49). Many asylum-seekers cannot provide extensive documentation, which allows for speculation about the authenticity of their identity and claim. Credibility assessments are therefore a crucial part of determining whether protection will be granted, yet are particularly problematic in terms of consistency, reliability and objectivity (Dahlvik, 2017; Griffiths 2015; Johannesson, 2017; Kagan, 2003; Mayblin, 2019; Thomas, 2006). The majority of rejected asylum applications are decided on the basis of (in)credibility (Kagan, 2003), and yet assessment practices ‘demonstrate great inconsistencies between different countries, state institutions and even individual decision-makers’ (Johannesson, 2017; p141). Mayblin (2019) and Thomas (2006) have called for further empirical evidence on how credibility is being assessed in the UK to establish whether the system is functioning effectively; this project aims to contribute to this research gap.
I will focus on the UK as one of the top five destinations for migrants (IOM, 2018) with a high turnover of rejected asylum applications at appeal stage (Amnesty International, 2013), suggesting an issue with the accuracy of decisions made by the UK Home Office (HO), who are responsible for initial asylum judgements. Previous research highlights a possible shortcoming of the UK’s humanitarian commitment to refugees under international law, with restrictive asylum policies being driven by problematic notions of economic ‘pull factors’ and a culture of disbelief (Griffiths, 2015; Mayblin, 2019, Thomas, 2006). I will first outline my aim and research questions along with contextual background and previous research, before explaining my methodology, outlining my results and analysis and concluding with suggestions for further research.
2. AIM AND RESEARCH QUESTIONS
The aim of this study is to contribute to an understanding of how applications for asylum in the UK are being assessed; how narratives are valued by HO decision-makers (DMs) and tribunal judges, and how applicants’ credibility is determined, exploring any issues that arise within this process. The study will be guided by the following research questions:
1. What specific areas are seen as problematic in the practice of credibility assessment? 2. What broader contextual factors might help to explain these problems with credibility
assessment?
3. CONTEXTUAL BACKGROUND 3.1.Context
With immigration playing a key part in the debate around the UK’s decision to leave the European Union in 2016, the topic has become increasingly politicised in recent years (Abdou, Brumat & Geddes, 2020). This attitude has been reflected in government policy; in 2012, Prime Minister Theresa May declared that her aim ‘was to create here in Britain a really hostile environment for illegal migration’ (Grierson, 2018). This ‘hostile environment’ has been shown to affect approaches to asylum as well as immigration; asylum-seekers’ ability to claim asylum in the UK has been restricted through various controls as well as removal of permission to work, and a discourse has arisen around the ‘genuine’ deserving refugee and suspicion of the ‘bogus’ asylum-seeker or ‘economic migrant’ (Yeo, 2020; Griffiths, 2015). Previous research has questioned the neutrality of decision-making and suggested that government discourse sees the majority of asylum-seekers as lying in an attempt to play the system and benefit from the UK’s resources and job market (Mayblin, 2019).
The UK Home Office (HO) is responsible for immigration and asylum claims, where nominated decision-makers (DMs) assess and award or reject refugee status to asylum-seekers. A large backlog of many thousands of asylum cases in the UK has continued to rise by almost 50% in the last year (McKinney, 2020) and has led to an increase in time restrictions and pressures being placed on DMs in their role (Brewer, 2018; Thomas, 2006). The HO has come under increased scrutiny in recent years, particularly in the media; in 2010, a HO whistle-blower alleged that a toy ‘grant monkey’ was placed on the desk of anyone thought to be granting too many cases (Yeo, 2020; Taylor & Muir, 2010), leading to accusations of a culture
of disbelief and institutional racism (Canning, 2017) alongside the more recent Windrush Scandal (see Bowcott & Gentleman, 2020). Investigations have also been made into inappropriate interview questioning, and examples of poor decision-making have been widely publicised (Independent Chief Inspector of Borders and Immigration, 2014; Lyons, 2018).
3.2.Assessment Guidelines
Asylum claims require a low standard of proof, where the criminal threshold of ‘beyond reasonable doubt’ is reduced to ‘reasonable degree of likelihood’ which is less than the balance of probabilities, so a DM:
…does not need to be ‘certain’, ‘convinced’, or even ‘satisfied’ of the truth of the account – that sets too high a standard of proof. It is enough that it can be ‘accepted’. (Home Office, 2015; p12)
DMs are asked to follow the HO’s ‘Asylum Policy Instruction’ (API) as guidelines for the practice of credibility assessment. In deciding whether a DM should afford an applicant the ‘benefit of the doubt’, the API states that “much may depend on the ‘general’ or personal credibility of the claimant” (Home Office, 2015; p18). The API advocates use of the following indicators to determine the credibility of a claim:
…sufficient detail and specificity; internally consistent and coherent (to a reasonable degree); consistent with specific and general COI (country of origin information); consistent with other evidence (to a reasonable degree); plausible. (Home Office, 2015; p13)
The DM is required to apply these indicators, and to subsequently place weight on each individual piece of evidence before assessing the case ‘as a whole, not just considering a fact in isolation’ when assessing credibility (Home Office, 2015; p13). DMs are also instructed to differentiate between ‘immaterial facts and material facts’, the latter of which ‘goes to the core of a claim and is fundamental as to why an individual fears persecution’ (Home Office, 2015; p11). In 2004, ‘Section 8’1 was introduced, requiring the HO and tribunal to hold certain
behaviour against applicants as potentially damaging to a person’s ‘general credibility’, including:
…failure without reasonable explanation to produce a passport… production of a document which is not…valid…the destruction…of a passport, ticket or other travel document…failure without reasonable explanation to answer a question asked by a deciding authority. (Home Office, 2015; p39)
How these factors are weighed in the context of the case as a whole is left to the individual DM’s discretion (Home Office, 2015). The API also warns against judging applicants’ credibility on their demeanour and maintains that the asylum-seeker should have the opportunity to explain or respond to any issues found at the interview stage (Home Office, 2015; p18). tribunal judges do not use these same HO guidelines in their credibility assessments, but are similarly obliged to take Section 8 into account when making decisions (Asylum and Immigration (Treatment of Claimants, etc.) Act 2004).
3.3.Process of Assessment
After registering for asylum in the UK, asylum-seekers are first screened at interview for basic information, then return for a lengthy ‘substantive’ interview about their case and past experiences in order to verify or disprove their claim (Asylum Navigation Board, n.d.). There is often one interpreter for the claimant and another for the HO (Home Office, 2019), and a lawyer is generally not present during these interviews due to financial limitations on legal aid (Your Legal Case, n.d.). If the asylum-seeker is not happy with the initial decision, they can appeal to the two-tier tribunal system where the case will be reviewed and decided by a judge (Asylum Navigation Board, n.d.).
3.4.Definitions
I understand ‘credibility’ to be a proxy for truth and genuineness; ‘the guidelines’ signifies the official UK HO guidance on how credibility of asylum-seekers should be assessed; and ‘in practice’ refers to the processes, actions and behaviours displayed by DMs and judges as the ‘authorities’ in asylum interviews and court appeals respectively. DMs are not required to be legally trained, however they do make substantive administrative decisions with legal consequences on behalf of the HO, and for the purposes of this study these will come under the bracket of ‘legal’ decisions along with tribunal judgements.
4. PREVIOUS RESEARCH
I have grouped the existing body of research on this topic into three general themes: the guidelines, the assessment process, and decision-makers. I have mainly concentrated on literature which is focused on the UK asylum system, however there is a larger body of research on other countries’ asylum processes which could also be relevant.
4.1.Guidelines
4.1.1. Asylum Policy Instruction (API)
There have been a number of issues with the UK’s API raised in the literature. Sweeney’s (2009) extensive content analysis of the guidelines for DMs concluded that the instructions on credibility were confused, contradictory and unwieldy to follow, leading to a problematic conflation of credibility with proof. The definitions of credibility and instructions for testing this are said to be vague and broad, with the focus on an applicant’s ‘general credibility’ detracting from the assessment of risk to the asylum-seeker. (Good, 2007; Sweeney, 2009). Good’s (2007) extensive field observations suggested that a lack of evidence also leads to a problematic reliance upon an individual’s witness statement and the consistency of their account, whilst Muller-Hoff’s (2001) study based on interviews and textual analysis found that the role of interpreters and translation may also add further misunderstandings and discrepancies to the process. The main guideline indicators are said to be inappropriate, over-simplistic and ineffective means of assessing credibility (Sweeney, 2009), as well as inaccurate measures of assessing the truth of traumatised asylum-seekers’ accounts. For example, trauma has been shown to affect asylum-seekers’ recollection, consistency and disclosure as a result of PTSD or other issues, whilst such behaviour commonly damages asylum-seekers’ credibility (Good, 2007; Abbas, Von Werthern, Katona, Brady & Woo, 2020; Herlihy, Jobson & Turner, 2012). The HO’s expectations of full disclosure of traumatic experiences have been shown to be unrealistic in interview data and studies such as Abbas et al. (2020) and Herlihy et al. (2012), whilst Good (2007; p192) writes that ‘the very inexpressibility of the pain of torture renders its expression unbelievable’. Millbank’s (2009) case study of ‘Particular Social Group’ refugee determinations lends supports to other studies which argue that the HO’s approach is not sufficiently sensitive to trauma and relies upon inaccurate and unreliable techniques to determine truthfulness, as well as an overconfidence in DMs’ ability to do so (Herlihy et al., 2012; Abbas et al., 2020; Sweeney, 2009; Good, 2007). Misunderstandings across cultural
divides are seen as common in the process, especially concerning plausibility: asylum-seekers’ stories are often unusual, yet they are frequently judged as implausible in relation to normative or Western notions of common sense (Muller-Hoff, 2001; Good, 2007; Millbank, 2009; Jarvis, 2003).
4.1.2. Section 8
There have been concerns that Section 8 is designed to damage credibility and weigh negatively against applicants (Thomas, 2006; Sweeney, 2009). The actions it considers to be potentially damaging to ‘general credibility’ are also seen to describe genuine refugee behaviour, suggesting such indicators may be irrelevant to the risk to the applicant and distract from establishing their fear of persecution (Good, 2007; Sweeney, 2009; Thomas, 2006; Muller-Hoff, 2001). Section 8 is said to interfere with the fairness of the assessment process and deny applicants their right to an individual assessment based on evidence (Thomas, 2006).
4.2. Assessment Process
4.2.1. Standard of Proof and Benefit of the Doubt
Although the guidelines outline the low standard of proof for asylum cases, in practice this has been shown to be much higher, increasing the burden of proof on the asylum-seeker (Good, 2007; Sweeney, 2009). Sweeney (2009) argues that the high standard of proof in practice undermines the benefit of the doubt principle advocated by UNHCR as an alternative to evidence by placing insurmountable obstacles in its way. Whilst credibility does not actually feature in the definition of a refugee in the 1951 Convention, it is argued to be over-important in the asylum assessment process, (Sweeney, 2009; Good, 2007), leading to a possible neglect of facts and evidence in the process (Muller-Hoff, 2001). Clearer and more nuanced guidelines have been recommended to bring the UK more in line with the UNHCR approach, including writing the benefit of the doubt into law and more acceptance of uncertainty within the asylum process due to its complexities and general scarcity of evidence (Sweeney, 2009; Millbank, 2009; Good, 2007; Macklin, 1998; Yeo, 2020).
4.2.2. Poor-Quality Decision-Making
A lack of quality decision-making is a recurring theme in the literature (Amnesty, 2013; Millbank, 2009; Yeo, 2020; Jarvis, 2003; Good, 2007; Herlihy et al., 2012; Muller-Hoff, 2001). Amnesty International’s (2013) report highlighted a high rate of rejected asylum applications
being reversed on appeal, a trend attributed to poor-quality initial decision-making by DMs (Millbank, 2009). Judgements have been criticised for being frequently based on misunderstandings (Muller-Hoff, 2001) as well as:
‘the use of speculative arguments or unreasonable plausibility findings; not properly considering the available evidence; using a small number of inconsistencies to dismiss the application, and not making proper use of country of origin information.’ (Amnesty, 2013; p4)
4.2.3. Legal System
Muller-Hoff (2001; p4) relates credibility to Foucault’s theories on legal discourse, arguing that the legal system presents itself as the authority on facts, truth and validation of knowledge, and that to “decide upon credibility is to decide upon whether or not ‘truth’ is spoken”. However, in reality, legal judgements are also shown to be subjective, and Muller-Hoff argues that credibility decisions could allow judicial decision makers to:
…make normative statements outside the scope of law, to set morality standards and to enforce policy decisions and to give them the authority of legal ‘knowledge’, thus, disguising their subjectivity and challengability. (2001; p4/5)
The HO has been accused of not considering all available evidence (Amnesty, 2013), whilst tribunals have been said to reject the substance of expert evidence as biased or a threat to their judicial authority; thus representing a power struggle for hegemony and differing notions of truth and knowledge (Good, 2007; Thomas, 2006).
4.3.Decision-Makers 4.3.1. Subjectivity
Relying on individual discretion, credibility is a subjective concept which can be problematically affected by DMs unconscious biases and personal backgrounds, leading to a lack of consistency in judgements. (Good, 2007; Jubany, 2011; Thomas, 2006; Jarvis, 2003). Despite guidelines advocating an objective approach, former Canadian DM Macklin (1998) explains that the role is more about an individual’s active choices of what to believe than a passive discovery of objective truth, making it subjective and prone to bias. Consequently,
which DM or judge is assigned to a case is shown to play an important role in how credibility will be assessed and determined (Jarvis, 2003). Although advised against in the guidelines, the demeanour of applicants and non-verbal signals are shown to affect decision-making in practice, despite being scientifically unreliable as a means of determining authenticity, especially in traumatised individuals (Jarvis, 2003; Herlihy et al., 2012). This scope for subjectivity is seen to affect neutrality, leading to speculative credibility assessments and poor decision-making (Millbank, 2009; Muller-Hoff, 2001; Good, 2007; Amnesty, 2013) whilst also making adverse credibility judgements difficult to appeal in practice (Sweeney, 2009; Kagan, 2003).
4.3.2. Pressures Faced by Decision-Makers
Operating under both national policy and international law and with a high workload, the role of a DM is shown to be unquestionably challenging; evaluating complex cases with limited evidence whilst under pressure from imposed time restrictions and institutional targets (Thomas, 2006). There is also evidence that vicarious trauma can cause DMs to emotionally distance themselves from certain applicants’ accounts, which may affect credibility assessments (Good, 2007; Yeo, 2020). The amount and quality of training that DMs receive in the complex issues around asylum has been questioned, which could inhibit their ability to adequately fulfil the demands of the role (Millbank, 2009; Thomas, 2006).
4.3.3. Culture of Disbelief
There is a large body of literature which points to the existence of a culture of disbelief within the UK HO, leading to the adverse assumption that asylum-seekers are lying unless proven otherwise (Thomas, 2006; Jubany, 2011; Millbank, 2009; Sweeney, 2009; Mayblin, 2019). This is seen to be related to suspicion of economic migrancy and ‘bogus’ asylum-seekers (Mayblin, 2019; Yeo, 2020; Good, 2007) and consequently sees credibility equated with truth, genuineness and morality (Sweeney, 2009; Muller-Hoff, 2001; Griffiths, 2015; Yeo, 2020). Credibility judgements are therefore said to be based around DMs’ personal sense of belief, raising the standard of proof by expecting asylum-seekers to effectively prove their credibility rather than being afforded the benefit of the doubt. (Sweeney, 2009; Good, 2007; Millbank, 2009). The culture of disbelief has been linked to a tendency in the HO to try and catch asylum-seekers out, equating inconsistencies with falsehoods, strangeness with dishonesty, and relying on minor or immaterial details to refuse claims (Muller-Hoff, 2001; Millbank, 2009; Herlihy et al., 2012; Amnesty, 2013). The issue of case-hardening has also been raised, where DMs
become less sympathetic to certain types of case the more frequently they arise (Yeo, 2020), and certain countries and types of case have become connected to particular stereotypes and assumptions (Jubany, 2011; Good, 2007; Millbank, 2009; Muller-Hoff, 2001).
4.3.4. Gap between Theory and Practice
Existing literature points to various gaps between how the guidelines advocate credibility should be assessed and how these are followed in practice. These include the higher standard of proof in practice, the non-application of the benefit of the doubt, and the focus on minor details in relation to credibility over the bigger purpose of assessing risk to the individual applicant (Sweeney, 2009; Amnesty, 2013).
5. RELEVANCE AND CONTRIBUTION
My research aims to contribute to filling an empirical gap in how credibility is being assessed in practice in the UK in 2020, providing valuable up-to-date data on the relevant processes and practices to contribute to a further understanding of any current issues with credibility determination and explore possible suggestions of how the system might be improved. With the credibility and efficacy of the asylum assessment system itself being questioned within academic literature and the media, it is important to explore precisely how guidelines are being followed in practice and shed light on whether the UK is upholding its commitment to the 1951 Convention.
6. THEORETICAL FRAMEWORK
I will analyse my data through the lens of sociology of law, focusing specifically on the theories of Pierre Bourdieu and Michel Foucault; I believe that the psychological complexity of these theories and their relation to power and the state regarding legal decisions are helpful in understanding discourses within credibility assessment in the UK as well as how truth is claimed and determined in this context.
6.1.Bourdieu
In The Force of Law, Bourdieu (1987) highlights the importance of the social, political and contextual environment in which actors operate and acquire knowledge in the legal field, arguing that juridical authority is intricately tied to power relations and politics as well as
internal legal culture and attitudes. Underlying social, psychological, economic and linguistic practices are said to hold determining power in how the theory of law actually functions in reality (Terdiman, 1987), and legal judgements therefore ‘owe more to the ethical dispositions of the actors than to the pure norms of the law’ (Bourdieu, 1987; p828). These dispositions are products of group attitudes, or habitus, which are created and reinforced by their social context and shape the perspectives and behaviour of individuals (Bourdieu, 1987). He argues that habitus tends to strengthen itself, and that ‘the choices which those in the legal realm must constantly make between differing or antagonistic interests, values, and world-views are unlikely to disadvantage the dominant forces’, as the legal texts are also in line with the ‘interests, values, and world-views’ of legal practitioners (Bourdieu, 1987; p842).
Bourdieu argues that legal authority is legitimised by political power and the scientific concept of truth and error, yet ‘presented as the logical synthesis of antagonistic theses, a judgment contains within itself the whole ambiguity of the juridical field’ (1987; p830/1). Bourdieu claims that practitioners of law have a certain autonomy of interpretation in order to apply law to reality, making use of ‘professional tools’ such as legal databases (1987; p824). He outlines the selectivity of law in practice; how facts are translated into the legal field by retaining only that which ‘can be argued from the point of view of legal pertinence’; and how the law is based not on ‘naïve intuitions of fairness’ but an arbitrary competition of interpretation of the legal text between professionals (Bourdieu, 1987; p832, p817/8).
Bourdieu (1987) presents the judicial field as being intrinsically linked to and structured by the field of power, namely the economic and political power of the state. The field is the site of struggle for domination for social and judicial capital, where those trained in law have a monopoly over its application, disqualifying lay people and their sense of fairness and facts from the decision-making process (Bourdieu, 1987). Such symbolic knowledge capital is shown to be crucial in the legal field, determining a hierarchy between different actors (Terdiman, 1987) which are given the impression of being logical and ethical through the self-representation of the law as a neutral and universal force based on shared values (Bourdieu, 1987).
Bourdieu’s notion of symbolic violence outlines how the powerful impose meaning on the world through applying socially constructed principles of division such as ‘insider’ and ‘outsider’ to those without the power to resist (Terdiman, 1987; p812). These constitute a
‘representation of normalcy according to which different practices tend to appear deviant… abnormal, and pathological’ (Bourdieu, 1987; p847), in line with the dominant worldview and habitus. These limiting constructed categorisations show the use of juridical language as a way of situating the speaker as a neutral, impartial voice and giving a sense of omni-temporality and universality to the rule of law (Bourdieu, 1987). These categories thus acquire force through the law, with society’s rewards being distributed along these lines, (Terdiman, 1987) and become seen as universal norms of reason and morality instead of products of economic and political power (Bourdieu cited in García Villegas, 2004).
6.2.Foucault
Foucault’s Truth and Juridical Forms explores how law and truth have been understood, conceptualised and codified over time, culminating in the modern form of the ‘inquiry’ to determine truth and knowledge (Foucault, 1996; p339). His focus on the different possible methods of establishing truth and resolving conflicts through law over time highlights how the nature of the trial used affects the forms of proof required as well as the nature of the truth or knowledge determined (Foucault, 1996). Foucault argues that instead of being rational and neutral, the modern inquiry is a product of politics and power, and that the result is a form of ‘power knowledge’ (Foucault, 1996; p341).
Foucault writes about the traditional concept of the épreuve as the ‘trial by ordeal’, which was not about truth or the proof of innocence, but ‘a matter of a verbal game’ with the binary outcomes of either success or failure, with the strongest granted the label of ‘right’ (Foucault, 1996; p341, p331). Foucault questions the universal concept of truth in law and argues that there are different forms of truth and knowledge, of which the Western way is just one (Foucault, 1996). He also outlines the concept of infraction, where a conflict becomes greater than individuals and represents a crime against the state, which carries religious connotations of morality and sin (Foucault, 1996).
Foucault’s focus on veridiction outlines various different forms of truth-telling, arguing that ‘politics and truth are unavoidably related’ and thus affect who is allowed to speak and how (Barker, 2019; p374). He argues that free-speech and democracy are mutually reliant (Barker, 2019) and is concerned with how ‘regimes of truth’ such as discourses and institutions ‘regulat(e) the production of what is considered as true or false in a certain context…and for particular purposes’ (Suntrup, 2017; p304). Foucault also outlines a ‘new rationality’ within
legal thinking, which focuses more on ‘prevention and the truth about the person rather than on the reconstruction of the crime’ (Suntrup, 2017; p303).
7. METHOD
7.1.Research Design
I chose a qualitative approach as most appropriate for this study, as I am interested in the meaning and practice of credibility within the assessment process, and ‘qualitative research enquires into, documents and interprets the meaning-making process’ (Patton, 2014; p3). I selected a Case-Based Research design (CBR) in order to ‘understand the richness, complexity and nuances of social life’ (6 & Bellamy, 2012; p104) and allow me to explore detailed individual perspectives, experiences and psychological processes, permitting a deeper investigation of the assessment of credibility and how decisions are made than would be possible with a quantitative approach. As UK government statistics do not specify the grounds for rejected asylum applications, it would also be difficult to investigate the assessment of credibility using a quantitative method. As is typical of CBR, I took a mainly inductive and exploratory approach and was guided by a theoretical framework, rather than using deduction to test a specific hypothesis (6 & Bellamy, 2012; p112). I collected data through semi-structured interviews, which in combination with CBR allows the researcher to ‘identify and follow interesting leads, including those that might throw light on an important issue that may not have been identified before the research began (6 & Bellamy, 2012; p105). This allowed me to remain open and take an iterative and inductive approach, moving between theory and data to respond flexibly to new elements that arose in the course of the research process (Patton, 2014). Case study can also ‘aspire to tell-it-like-it-is from the participants’ point of view, as well as hold policy to account in terms of the complex realities of implementation’ (Stark & Torrance, 2004; p33), which is fitting for my examination of how guidelines are being implemented in practice.
7.2.Method of Data Collection 7.2.1. Interviews
Merriam (2009; p88) writes that ‘interviewing is necessary when we cannot observe behaviour, feelings, or how people interpret the world around them’, and therefore is particularly fitting
to ascertain the individual perspectives and psychological processes of DMs and lawyers on the complex topic of credibility. I interviewed seven lawyers who represent asylum-seekers; two solicitors who usually work at the initial interview stage, one legally trained immigration advisor and four barristers, who are generally present at the appeal stage of the asylum application process in court. I also interviewed one DM from the HO and one retired tribunal judge to hear their perspective on how decisions are made. I chose to interview these actors as they provided experiences from the perspectives of both the legal representatives of asylum-seekers being assessed and the DMs who are making the assessment, as well as an understanding of both the legal guidelines and the practice of credibility assessment through experience of all stages of the asylum process from interview to appeal. Lawyers have important experiences to be shared regarding potential weaknesses in the system and how they see credibility being assessed in practice, whilst DMs can provide invaluable insight into how credibility is being assessed in practice by the HO, what guides them in their judgements, and any factors that may constrain them in their role. Through interviews, I explored their views on what is meant by credibility in practice, how this is measured and assessed, and any issues they saw with the system. Each interview took between 55 and 100 minutes and was conducted via Skype due to the Covid-19 lockdown in the UK. I used a semi-structured interview, allowing me to lead with open-ended, general questions and follow up interesting elements of interviewees’ answers with further questions as the interview progressed, and finishing by asking them if they had anything to add (Merriam, 2009). This allowed interviewees to express their opinions naturally and with minimal external influence, maximising the authenticity of the data. I wrote an interview guide in advance based on previous research and undertook a pilot interview beforehand to check that the questions functioned correctly (Merriam, 2009).
7.2.2. Access to Participants
I gained access to these interviewees through a snowballing technique in order to get as many options for interviewees as possible. Although selection bias must be taken into account, this technique provided me with an ‘effective and efficient way to generate a sample through the internet or social media’ (Patton, 2014; p298) which was useful during the Covid-19 lockdown. I used LinkedIn as well as emailing relevant legal and charitable organisations and personal contacts from asylum charities in Bristol.
7.3.Delimitations
I have limited the scope of my study to the assessment of credibility in the UK asylum system to allow for a manageable workload; I have not focused on the guidelines themselves due to time restrictions, instead analysing how these are applied in practice. I have looked at factors relating to the evaluation of credibility and am not judging whether different applications are objectively true or false. I have only looked at factors relating to credibility through the experiences of my interviewees, and do not suggest that this provides access to an objective ‘truth’ nor aim to judge whether asylum applications are objectively true or false.
7.4.Validity and Reliability
In qualitative research, general proxies for reliability and validity can be ‘dependability, confirmability and audibility or transparency’, and therefore I ensured that my ‘protocols for recording and analysing case study data (were) constructed purposively, explicitly and transparently’ (6 & Bellamy, 2012; p115). I interviewed to the point of saturation, to be sure that I had covered the topic in sufficient breadth and depth. I analysed and interpreted my interviews clearly to increase transparency and reliability, showing a clear process of interpretation from the transcripts that could be checked by external actors. My interview guides (attached in the appendix) ensure that these interviews are transparent and auditable. I made accurate written transcripts of recorded interviews which will be kept in case of audit and have used direct quotes in my analysis to increase transparency. By using interviews across a variety of roles in relation to the asylum system, I aimed to analyse the complexities of credibility assessment in the UK in a comprehensive manner and increase the validity of the study. To increase validity and reliability, I have clearly defined my understanding of key concepts such as ‘credibility’ above, which I operationalised using the HO guideline indicators in the API as well as Section 8 (Home Office, 2015; p13). I used an inductive and iterative approach, moving ‘constantly between the data, the theory and the research design’ throughout the research to maximise verification (6 & Bellamy, 2012; p116), and have thus organised my results by themes that arose during the course of the interviews, linking these to my theoretical framework.
7.4.1. Limitations
I am aware that each of the interviewees may have their own agenda in participating in this research which could affect the validity of their contribution, and that it is therefore necessary to remain critical of their perspectives. For example, the lawyer’s role is for their client to succeed, so they may be biased as to the ‘reality’ of credibility assessment or influenced by personal activism or beliefs. There is also a possible negative bias in the barristers’ interviews, as they only work at the appeal stage with cases who have already been rejected at first instance. Furthermore, DMs may not be able to speak openly or be objective; there may be restrictions on current HO employees, they may fear losing their jobs despite anonymity, and they may not want to admit faults in the system of which they themselves are a part. DMs may also not be aware of their own psychological processes when assessing credibility, and thus may not provide a deep insight in this regard. Interviewees could also be influenced by what they think I want to hear rather than giving honest answers. It must be noted that despite having extensive relevant experience in the field, the tribunal Judge’s knowledge may not be fully up to date as they are now retired.
It is important to acknowledge that due to the relatively small sample size of 9 interviewees, reached through snowballing techniques, my findings will not be representative of the UK asylum system as a whole and cannot be generalised to other contexts (6 & Bellamy, 2012). It would improve reliability and validity if this study was able to control for selection of interviewees, using a representative sample that may be more appropriate to generalise from.
7.4.2. Role of the Researcher
I am aware that qualitative research is heavily reliant on the subjectivity of the researcher as ‘the instrument of inquiry’, that my personal background and experiences will inform my view of the world (Patton, 2014; p3) and could potentially lead to biased interpretations of my data. As I have previous experience volunteering with asylum-seekers and am personally aligned with their cause, I was conscious to ensure that I remained critical and open-minded to the results of the data, that my analysis and interpretation were objective and empirical to the best of my ability, and that my interview questions were not leading.
7.5.Ethical Considerations
To comply with ethical and data protection guidelines (Merriam, 2009; p233), I made sure my research was conducted in an ethical manner to ensure that no harm should come to my participants. I received written consent from all interviewees, who were sent an email in advance outlining that their identity would remain anonymous with any distinctive details omitted in the thesis; that they had the right to withdraw from the project at any time; and that their interviews would be recorded for the purpose of this research but permanently deleted after the thesis had been graded. At the start of each interview I asked if they have any questions about this information before I commenced so that they felt comfortable and fully informed about their participation before we began. This email also outlined the areas to be covered in the interview so that the interviewees knew what to expect beforehand.
7.6.Interviewee Profiles
Lawyer 1 (L1) Male barrister, over 10 years’ experience in immigration tribunals Lawyer 2 (L2) Female solicitor, almost 10 years’ experience in asylum cases Lawyer 3 (L3) Male immigration advisor, legally trained, representing
asylum-seekers for almost 10 years
Lawyer 4 (L4) Female barrister, 3 years’ experience with asylum
Lawyer 5 (L5) Male barrister also trained as a solicitor, 22 years’ experience in immigration
Lawyer 6 (L6) Male barrister, 20 years’ experience in immigration Lawyer 7 (L7) Female solicitor, over 15 years’ experience
Decision-maker 1 (DM1)
Female decision-maker, under 5 years’ experience at the HO
Judge 1 (J1) Experienced female tribunal judge, now retired
8. RESULTS AND ANALYSIS
I will now set out the results of my data in order to answer my two research questions, analysing these in connection to my theoretical framework, before concluding and offering suggestions
for further research. I will start with outlining the specific areas seen as problematic in the practice of credibility assessment, and then move on to exploring broader contextual factors that might help to explain the occurrence of such problems in the asylum system.
8.1.What specific areas are seen as problematic in the practice of credibility assessment? Two main themes arose in answer to this question; the first was DMs’ application of HO guidelines and expectations of asylum-seekers, including consistency; plausibility; Section 8; details, coherence, memory and trauma; evidence, standard of proof and weight; and narrative. The second theme looks at the justification for decisions, featuring a lack of considered reasoning and a difficulty appealing negative verdicts.
8.1.1. Application of Home Office Guidelines and Expectations of Asylum-Seekers 8.1.1.1.Consistency
(In)Consistency is a main guideline indicator of credibility which is cited by the HO in many Reason for Refusal Letters (RRLs), and the data suggested that this term is often used inappropriately and inaccurately in credibility assessments (L2, L4, L5, L6, L7), supporting previous research such as Sweeney (2009) and Abbas et al. (2020). L2 claimed that internally consistent accounts can be labelled ‘inconsistent’ in RRLs, which may state:
… ‘this seems unlikely therefore this is inconsistent’; they don’t say what it’s inconsistent with, it’s just inconsistent, full stop.
Minor and seemingly irrelevant inconsistencies in someone’s account were said to often result in the refusal of their claim on grounds of credibility: L7 gave an example where an appellant claimed that he was threatened by three of his relative’s brothers, and then was consequently considered not-credible by a judge because that relative had six brothers, although he had mentioned only the three who threatened him.
8.1.1.2.Plausibility
Confirming previous research such as Good (2007), concerns around the use of plausibility in assessment also arose (J1, L1, L5). J1 considered it a ‘real problem’ that plausibility is being assessed in relation to the DMs ‘own personal world’ and that these judgements are ‘not backed
up with anything… but (the HO) will rely on it’. L5 also took issue with this individual notion of plausibility and reason:
You might get for example a judge for the Home Office saying – ‘why, you couldn’t remember your son’s birthday’… But in some cultures, they don’t really celebrate birthdays! So it’s those types of westernised perceptions of what is common sense, against which decision-makers are using to make these rather bold and unsubstantiated findings of inherent implausibility of an account.
In contrast, DM1 stated that ‘we can’t make…silly arguments (about plausibility) …if it’s something minor, we don’t consider it.’
8.1.1.3.Section 8
Most of the lawyers (L2, L3, L5, L6, L7) mentioned Section 8 as being controversial and problematic within credibility assessment, representing a disproportionately negative weight against clients’ credibility. L6 connects this legislation with the HO’s ‘preconceived ideas of how…refugees should behave, as opposed to how they actually do behave’, stating that Section 8 ‘mandates that certain things will be held against refugees which have got no relation to actually genuine refugee behaviour’ and is thus contradictory to the principle of the benefit of the doubt. Despite the absence of legal routes into the UK to claim asylum, L3 stated that:
…they are required now to use against someone’s credibility the fact that they entered the country illegally or they used a false passport… all that stuff, is automatically going to be on the… negative side.
L2 agreed that the use of false documents was being held against asylum-seekers’ credibility under Section 8 despite UN guidance advocating against this, and that delay in claiming asylum was often counted against an appellants’ credibility ‘even when it’s perfectly sensible, or you can see what’s happened’. L5 referred to Section 8 as ‘another legislative way of saying – “we don’t believe you’”.
8.1.1.4.Detail, Coherence, Memory and Trauma
Considering the general scarcity of evidence in asylum cases, the amount of detail an applicant can provide was seen as an important element of determining credibility. DM1 explained how to be seen as credible:
To be honest, so the more detailed their account is, the more helpful it is…you then also have to understand that it’s not everyone that can be able to give you those concrete details –…it really does help us, the more we have, you tend to believe that person – because it’s like ‘okay, they have given me everything that they claim has happened to them’.
However, confirming previous studies such as Abbas et al. (2020), other interviewees (L1, L2, L6, L7) expressed concern that the guideline indicators and assessment process rely upon unrealistic expectations of human memory, and do not take into account the effects of trauma on an individuals’ ability to disclose their experiences and produce a detailed, coherent and consistent account:
(Asylum-seekers) are expected to remember everything and remember things that are so specific…there is so much emphasis and so much pressure on asylum-seekers to
know…because there is no other evidence. (L7)
The client often won’t remember the sequence of events, and they will say sometimes slightly contradictory things about what happened…because that’s how memory works, and especially if you are traumatised, that’s literally one of the symptoms of trauma! So, you would expect if this person is telling the truth, they ought to be able to barely string it together, essentially. (L6)
The HO was said to show a lack of understanding of the effects of trauma, especially regarding sexual assault, which could lead to problematic credibility assessments:
It’s not a trauma-informed approach… It’s a very Wild West approach…I had a young person who was told that it wasn’t credible that she was a victim of sexual assault, because as a 14-year-old child she returned to the family home and they didn’t believe that real child victims of abuse return to the family home. (L2)
The HO’s expectation of immediate and detailed disclosure from asylum-seekers was also shown to be especially inappropriate regarding traumatic experiences, with authorities not sufficiently aware that ‘disassociation is protective against trauma’ (L7) and that describing experiences can be re-traumatising for applicants:
I have had boys who were raped who will just say – ‘he raped me’. And unfortunately, what the tribunal want to hear and the Home Office want to hear is… ‘they did this, they did this’… (L7)
8.1.1.5.Standard of Proof, Evidence and Weight
Confirming previous research such as Sweeney (2009) and Good (2007), most lawyers (L1, L2, L3, L7) interviewed believed that the standard of proof was much higher in practice than the low standard advocated in the guidelines:
It’s amazing that so many cases are refused when you consider that the standard is not that high. Of course, in practice, it is much higher than that, it’s nowhere near that. (L3)
I asked L1 what they thought was valued by the HO in credibility assessment:
They want evidence, and it doesn’t matter how many cases there are that say that… asylum-seekers don’t really have evidence, the lack of evidence is often a point taken…
DM1 explained their approach to the standard of proof and evidence:
We are just told to really question on the job.… we do question a lot of the evidences that they do submit…for example if…they made a report to the police, then we are expecting that they should be able to provide that evidence. If not…it’s not used against them because we know the standard of proof is low with asylum.
However, the HO’s approach to the standard of proof was often seen to be contradictory, with certain elements being disproportionately weighed:
It’s so important…to get any evidence that you can. But… when you do get evidence, they will mostly say it is not true…the test of ‘real risk’ or ‘real likelihood’ is conflated to ‘beyond all reasonable doubt’ which is a criminal threshold, not an immigration threshold. (L7)
Do you give no weight to a document because it’s from Pakistan and everything from Pakistan is a fake? … That’s the way the Home Office would look at it… especially when it comes to a lot of countries, they will just assume (a document is) probably a fake…It doesn’t look like they are actually weighing up all the evidence, creating a column, you know, pros and cons, … Or if they do do that, it doesn’t reflect in the decision. (L3)
J1 also found the low standard of proof to be problematic in practice, with errors made regarding weighing pieces of evidence together as a whole, whilst L3 argued that the ‘law is generally not applied that well’, leading to important evidence such as psychiatric reports not being given due weight. Furthermore, minor and seemingly irrelevant details were also said to have major effects on the determination of claims and the assessment of appellants’ ‘general credibility’. L4 believed that there is no system for weighing evidence, and that:
…in the particularly poorly written decision letters…(immaterial) points are carried through and permeate the rest of the decision. So – ‘Because you lied about what colour top you wore on that Tuesday meeting, we now don’t place weight on what you have said about something else’ which is entirely unrelated, but is then material to the claim, so I do find that as being an issue.
The evaluation of expert reports was also said to be affected by immaterial factors being given disproportionate weight:
Whenever I see it, the HO are arguing against the objective expert reports…saying ‘we don’t have to take into account your country expert report because (it) has been produced on the basis that what you say is true and we don’t think what you say is true'. (L1)
8.1.1.6.Narrative
Another aspect of assessment which was said to be problematic by L2 and L6 was the HO’s expectation of certain behaviours or narratives against which credible refugee behaviour is judged:
…decision-makers and judges have this …sort of stock narrative of a refugee… these expectations of how a real refugee would supposedly behave… how a civil servant or an official would like a refugee to behave quite often…but there is no evidential base at all to suggest that genuine refugees do behave in those preordained ways, and I think a lot of the problems with credibility assessment essentially flow from that. (L6)
L2 agreed that an asylum-seeker’s story must ‘comply’ with the narratives that the HO are looking for, but that these are ‘very difficult to work out’:
There are pre-imagined narratives… the narrative of a trafficking victim…of a gay person… of a convert… children and young people are highly likely to be refused on credibility grounds because they …are not able to produce a narrative or answer the questions in the way that it’s designed… You’ve got some clients, some people who are never going to be able to produce what the Home Office want, this does not mean that they are not telling the truth, they’re just never going to fit into that.
For example, L2 finds it very difficult to persuade DMs of the vulnerability of young male asylum-seekers; ‘it’s just not part of the narrative; girls are vulnerable, boys aren’t’.
In order to meet such expectations of narratives, drafting crucial witness statements and presenting a case was shown to involve construction on behalf of lawyers:
We are doing something very artificial, which is trying to turn something that is inherently uncertain into something that looks much more certain than it is…it is presented to the court in this lovely cleaned up, shiny certain narrative account that just doesn’t really bear any relation to how the client would have told it. (L6)
In practice a lot of the times it’s whether the judge believes the client, so I try and isolate bits of the evidence that sound true…some kind of fact that gives someone what we call the ‘ring of truth’ and you can kind of hang things on. (L1)
8.1.1.7.Summary
The interviews suggest that the guidelines on credibility are often applied inconsistently, inappropriately, or in an unsubstantiated manner, and that the quality of decision-making varies according to the perspective of the relevant DM, supporting previous research such as Jubany (2011). The power of the legal system to divide and distribute resources through the use of symbolic violence is highlighted here: asylum-seekers’ accounts are divided into constructed categories such as ‘(in)consistent’ and ‘(im)plausible’ according to the individual habitus of the DM and often against alternative notions of fairness or justice (Bourdieu, 1987). It is suggested that the HO expectations for credibility cannot necessarily be met by a ‘genuine’ asylum-seeker simply recounting their story, and that there may be unrealistic and over-demanding expectations of asylum-seekers with regards to production of evidence, certain behaviours and narratives, memory, provision of detail and disclosure of traumatic experiences as seen in Abbas et al. (2020), Herlihy et al. (2012) and Sweeney (2009). The HO’s seemingly unrealistic requests even for ‘genuine’ refugees suggest that legal judgements on credibility in practice may often be based on unstable and ambiguous legitimation and problematic assumptions and reflect the selected nature of facts translated into law in practice (Bourdieu, 1987). The data suggests that weighing evidence is an issue, with minor and even irrelevant details affecting the judgement of an applicant’s ‘general credibility’, and that Section 8 adds a negative weight against asylum-seekers, resulting in a distortion of neutrality in decision-making, supporting the work of Thomas (2006). The actions said to represent deceitful behaviour and potentially damage credibility under Section 8 being potentially immaterial to an applicant’s claim may illustrate how state power and political influence can affect the nature of the assessment process by evoking suspicion of a crime against the state (Foucault, 1996). The focus on an applicant’s ‘general credibility’ reflects Foucault’s suggestion that law may focus more on the characteristics of the individual themselves than on establishing their actions or fear of persecution (Suntrup, 2017). Accordingly, the apparent lack of allowance for alternative explanations of ‘non-credible’ behaviour supports the idea that the modern inquiry produces a type of ‘power knowledge’ (Foucault, 1996) and that the legal system may have a monopoly over truth (Bourdieu, 1987).
8.1.2. Justification of Decisions
8.1.2.1.Lack of Considered Reasoning
Confirming previous research such as Amnesty (2013), there was a general sense of confusion as to the reasoning behind many credibility assessments, especially decisions given by the HO in the initial RRLs. L3 argued that the HO lack ‘a fair and consistent approach’, whilst L4 described the process as ‘a complete Catch-22’, citing an example of how religious conversion cases are often heavily tested on knowledge of the Bible:
If they have not answered any correctly or not enough correctly, the Home Office will say – ‘well that’s because you’re not a Christian’. If they answer the questions correctly, the Home Office will say – ‘oh well that’s all available online in the public domain, so it still doesn’t show you’re a Christian’.
It was said to be difficult to meet HO expectations for credibility in practice, with RRLs often said to lack transparency and effective reasoning:
(RRLs are) extremely long and just going through some arbitrarily determined standards of what is expected, without really stating what the actual reasons for refusal are…they’re done to be legally defensible, but without really serving the sort of proper purpose that they are supposed to… stuff that just doesn’t make any sense when you start to read it…it’s not a fair reading of the answers that were given… (L6)
…the basis on which someone’s credibility is found not to be accepted is often quite spurious or quite stupid…‘you can’t be gay because you said you were married in the 1990s’, or …‘it’s not credible that your family was threatened by the Taliban because the Taliban would have just killed you if they wanted to kill you’, you know you see a lot of crap decision-making. (L1)
L2 doubted the DMs’ research into and knowledge of relevant topics, questioning why she sees Protestants being questioned about Catholic saints. There were also concerns about errors made by DMs in RRLs:
I have had cases where they have clearly used a template of a previous decision and accidentally left the wrong country in! In one case, they made up a country! (L7)
…you get…decisions where there are whole chunks of cut-and-paste…which doesn’t make any sense, can refer to the wrong country sometimes… it’s mystifying how they come to such awful decisions so often. (L3)
8.1.2.2.Difficulty Appealing Negative Verdicts
Supporting previous research (Sweeney, 2009; Kagan, 2003), negative credibility assessments were said to be difficult to appeal in practice:
(A poorly reasoned decision) sounds like it should make it quite easy to appeal, but sometimes it doesn’t, because you’re not really sure what you’re arguing with…It goes into- ‘well I say this, you say that’. It’s not a sensible way of conducting litigation. (L2)
I can hand-on-heart say I haven’t once seen a decision of the first-tier tribunal judge that hasn’t been legally challengeable in some sort of way. And in order to…challenge the first-tier (tribunal) decision on credibility…the thresholds…are set really high. So, you’ve really either got to take leave of your senses, from a rationality perspective, or your reasoning has got to be so bad that you really can’t understand why you have come to that decision. (L5)
…often what… judges will say when they are refusing your permission is… ‘You may not like their judgement, but that was something that (the judge was) entitled to come to unless they’ve applied the law incorrectly’. (L7)
8.1.2.3.Summary
The justification for decisions in RRLs were said to often contain arbitrary logic or careless errors, with the interviews suggesting a sense of frustration at the apparent lack of considered reasoning seemingly present in many adverse credibility findings and confusion about what the HO require regarding credibility in practice. This results in a sense of ‘Catch-22’ (L4) or despair that an asylum-seeker can’t win because the system is not providing a fair opportunity for applicants to be successful, evoking Foucault’s (1996) notion of the épreuve as a verbal game without relation to truth. The power of the legal system to validate particular information
as ‘true’ or ‘false’ despite its potentially unsound basis in reality and opposition to lay interpretations of justice highlights Bourdieu’s (1987) notion of the ambiguity and obscurity of legal judgement and legitimation, and the effects of habitus on individual decisions. The difficulty of appealing negative decisions indicates the apparent powerlessness of asylum-seekers against the dominance of the legal system, which may prevent challenges to its authority in order to limit reallocation of state resources given through refugee status (Bourdieu, 1987).
8.2.What broader contextual factors might help to explain these problems with credibility assessment?
The key themes evoked by the data which may help to explain the issues outlined in section 8.1 were: a culture of disbelief, a lack of resources, information and communication issues, inefficacy of guidelines and subjectivity.
8.2.1. Culture of Disbelief
The data suggests that a culture of disbelief may relate to the issues outlined in section 8.1 with application of the guidelines in practice as well as the justification for decisions shown in RRLs.
8.2.1.1.Increased Importance of Credibility
Confirming previous research such as Muller-Hoff (2001), the existence of a culture of disbelief in the HO, and to some extent, among judges in the tribunal, was seen to exacerbate the importance of credibility within asylum assessment. Credibility was seen by DM1 to be important to national security and to distinguish ‘genuine refugees’ from ‘bogus’ asylum-seekers:
There are people that are… just using the system, they are making … bogus claims for staying here, so yeah I guess …(assessing credibility) does help us protect the country to make sure that we are letting people who deserve to be in, in, and that people are protected…from persecution.
However, a culture of disbelief was explicitly mentioned in every interview except for L4, including DM1 who agreed it was a huge and dominant problem:
… you would hear maybe one of your colleagues…say – ‘oh, I’ve had this applicant downstairs, trying to tell me that he is gay, I don’t believe he is gay, I know he’s lying’…and in my head I’m thinking – ‘How do you know that?’ …the culture of disbelief is really, really strong in the Home Office.
This culture was said to lead to a desire to ‘trip people up’ (L5) and refuse cases; giving a sense that the HO ‘are looking for the negative’ (L6) and that the burden of proof on asylum-seekers is magnified by having to start from ‘-10 rather than zero’ (L3). J1 suggested that credibility is being used as a tool or excuse in order to refuse asylum claims, and this focus on credibility and belief was seen to supersede the emphasis on risk to the applicant outlined in the guidelines and the Refugee Convention. L6 argued that as laws have changed including the introduction of the Human Rights Act, credibility has become more important:
If somebody is in serious danger, then basically, they are going to be entitled to protection, and your means of refusal, your excuse for refusal is going to have to be that you just don’t believe them, in a lot of cases…The cases which I think are most vulnerable to bad credibility assessment tend to be the cases that basically if true, then the person would be a refugee.
L5 highlighted the prioritisation of credibility over assessment of risk within asylum decision-making:
The way that the courts are structured is – ‘Do I believe this person, yes or no’? And then if I believe them, then ‘are they at risk?’… everybody is just attacked on credibility first off…so there is a skewed way of looking at things…where credibility looms as the key factor right from the beginning because of the culture of disbelief…it’s difficult to actually think of a case where it wouldn’t be the most important thing...
Supporting Muller-Hoff’s work (2001), DMs were seen to place too much weight on guideline factors related to credibility when making their final decisions, and not enough on contextual, medical, expert and documentary evidence, contributing to the high standard of proof in
practice and making it harder for appellants to be granted asylum (L1, L2, L3, L4, L5). DMs and Judges were also said to use this focus on disbelief and credibility as an excuse to avoid engaging with the potential risk posed to the applicant or examining all of the evidence:
… ‘if they are not credible, that’s that- we don’t even have to look at the rest of the evidence’… ‘if I don’t believe them then I don’t have to worry about whether it’s safe for them to go back or anything’… It is a shocking use of the credibility to say that – ‘yes these circumstances pertain in your country and they do qualify as a refugee…however, I don’t believe you’. (J1)
8.2.1.2.Benefit of the Doubt
Confirming previous research such as Sweeney (2009) and Good (2007), the equation of credibility with belief in practice was said to restrict access to the benefit of the doubt principle outlined in the guidelines. DM1 explained that in their experience, benefit of the doubt was only currently given in sexuality-related claims, as these were particularly problematic to determine and have been scrutinised in recent media coverage. None of the interviewees were confident that the benefit of the doubt was being given to asylum-seekers in practice:
It is pretty rare to get the benefit of the doubt, I would say, pretty rare. Because it’s pretty hard to meet all the conditions of the benefit of the doubt really, because there are so many places you can trip up on. (L3)
No, you don’t see that in the Home Office decision-making …the Home Office was very good at making sure (the benefit of the doubt) was so meaningless that it doesn’t really help anybody. (L6)
8.2.1.3.Other Motivations for Rejection
Some interviewees intimated that this culture of disbelief was linked to a desire to reduce immigration numbers in the UK. J1 described a restrictive ‘floodgates approach’ from the HO, who fear that groups or characteristics who are granted status will lead to large influxes of asylum-seekers in the future. L6 gave an example where rising asylum applications from one country was followed by a crack-down on those types of cases by the HO, which was later overturned in court:
