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Appeals, Immigration and asylum, Research, Tribunals

Justice as Fairness: Observations of Asylum Appeals

In this blog post. Lauren Cooper discusses her research on agency and fairness in the asylum process and the strategies used by asylum seekers, based on ethnographic observations of tribunal hearings.

UKAJI blog Lauren Cooper

By Lauren Cooper

Justice. Everyone recognises the word, yet the meaning is often contested. Dictionary definitions indicate ‘fairness’ and ‘reasonableness’, but it is rarely that straightforward. My thesis analyses different frameworks of justice and how they apply to asylum seekers. Last year, 68% of asylum claims were refused, but 35% of these were subsequently granted on appeal, showing that erroneous decisions were made in over a third of refusals. To me, this doesn’t seem ‘fair’ or ‘reasonable’.

My research asks whether there is a relationship between structures and the agency of asylum seekers and access to justice in the context of these ever-decreasing success rates. The overarching principle in asylum tribunals is fairness, and part of this is the ability of an asylum seeker to adequately present their case.  Results from five months of ethnographic observations of tribunal hearings highlight several structures which influence this ability; the asylum process, language and the role of interpreters, luck, disbelief, legal representation and the behaviour of other parties. However, this blog focuses on some of the tactics employed and resources used by appellant asylum seekers to put their story forward and assert agency.

Methods

The vast majority of asylum appeals are heard at Columbus House, situated in Newport, South Wales. Each day, two appeals took place in the same courtroom, one after another, with a short break in between. After I completed 24 observations, and coded these in NVIVO, it became apparent that different structures and the agency of others were influencing the agency that an asylum seeker was able to assert over their own case. By focusing on significant aspects of interaction between parties, and the situations they found themselves in, I was able to begin analysing the role of structure and agency in these cases.

(Brief) Results

I observed 24 cases, 13 male appellants and 11 female appellants. They originated from Iran (9), Pakistan (4), Iraq (3), Afghanistan (1), Bangladesh (1), Ethiopia (1), Mongolia (1), Romania (1) Somalia (1), Sudan (1), and Sri Lanka (1). All of the cases had a legal representative and a Home Office Presenting Officer (HOPO), and all but one had an interpreter present.

Tactics and resources

Observations uncovered 63 examples of asylum seekers asserting agency in some way. One of the principal ways they achieved this was through making eye contact with the other parties. The layout of the court facilitated this, as they were able to look at everyone. I expected some of the appellants to be nervous, and to look at the floor. However, all of the appellants I observed made eye contact with at least one of the parties, although whether the other parties maintained this eye contact was another matter. The appellants also used hand gestures to further clarify what they meant. This is an example of using the available resources to assert their agency; here, body language played an important role. One appellant also glanced at the bundle whenever the HOPO referred to it; playing an active role in proceedings.

Other tactics included correcting the HOPO or interpreter, or speaking louder when one of the other parties tried to interrupt. This shows an engagement with the process and a desire to get their story straight before the judge. Appellants’ tone of voice also changed throughout the hearing; becoming more confident and forceful when they thought that they weren’t being believed. Other examples include putting evidence forward (such as a medication box), or proceeding without an interpreter (when he cancelled at the last minute). With the help of her representative, this asylum seeker was able to give evidence in English.

Support networks

A further way asylum seekers asserted their agency during these observations was through informal support networks. Several appellants told their representatives that they received information and evidence from friends they had made since arriving. British citizens attended four cases, and I observed the appellants asking questions about the process. Two asylum seekers brought members of their church with them, not as witnesses but as friends to help ease the anxiety.

Conclusion

These preliminary findings challenge the notion that asylum seekers play no active role at all, as they employ tactics to assert their agency, using the available resources. However, it may not be the case that they can be deemed effective agents because so many structural factors constrain their ability to present their own case. These results will form the foundation of my PhD, which will consider the actual and perceived role that asylum seekers play in their claim. If you have any comments or would like any further information about the project, please get in touch!

About the author:

Lauren Cooper is a PhD researcher at Cardiff University. She can be reached at Email: CooperL7@Cardiff.ac.uk

Twitter: LaurenCooperl7

 

Reference

Refugee Council, Statistics on refugees and asylum (2018), https://www.refugeecouncil.org.uk/stats

 

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