Bureaucracy, Law and Dystopia in the United Kingdom's Asylum System

John R. Campbell

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780367266370
• eBook ISBN: 9781315444789
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

The central concern of this book is to find answers to fundamental questions about the British asylum system and how it operates. Based on ethnographic research over a two-year period, the work follows and analyses numerous asylum appeals through the British courts. It draws on myriad interviews with individuals and a thorough examination of many state and non-state organizations to understand how the system works. While the organization of the book reflects the formal asylum process, a focus on specific legal appeals reveals the 'political' factors at play as different institutions and actors seek to influence judicial decision-making and overturn/uphold official asylum policy. The final chapter draws on the author's ethnographic findings of the UK's 'asylum field' to re-examine research on the Refugee Determination System in the US, Canada and Australia which has narrowly focused on judicial decision-making. It argues that analysis of Refugee Determination Systems must be situated and studied as part of a wider, political, semi-autonomous 'asylum field' which needs to be better understood.

Providing an in-depth ethnographic study of a national asylum system and of immigration law and practice, the book will be an invaluable resource for academics, researchers and policy-makers in the UK and beyond working in this highly topical area.

1 An anthropological approach to studying the asylum field

What happens to individuals fleeing persecution when they make an application for asylum in the United Kingdom? What role do government officials, lawyers and judges play in the asylum process? How is the asylum system organized? How are asylum applications argued and decided in British courts? Why is it that many more asylum applications are refused than granted? Is the process fair? These are the issues addressed in this book.

Research for this project was funded by a two-year grant from the United Kingdom’s Economic and Social Research Council to undertake anthropological fieldwork into the British asylum system between 2007 and 2009. My research followed asylum claims (litigation) in the Immigration and Asylum Tribunal (IAT, or Tribunal; also known as Asylum and Immigration Tribunal, or AIT) and the Court of Appeal (CoA), to understand how the asylum system was organized and worked, how different actors and institutions saw and performed their roles, and why relatively few asylum applications are successful.

This study is the first ethnographically informed analysis of a national asylum system. Bohmer and Shuman (2008) have written a comparative study of asylum in the US and UK based on analysing the personal narratives of asylum seekers. However, their study did not address asylum law or policy, nor did it look at how asylum narratives are assessed and decided. Furthermore, their material pre-dates major changes in law and policy which came into effect after 2000. Travers (1999) published an ethno-methodologically oriented study of asylum claims heard in the UK’s Asylum and Immigration Tribunal in 1997. While he interviewed key actors involved in asylum litigation, his principal focus was on ‘talk’, specifically how cases were argued and what different actors said about a case, legislation and so on. His findings also pre-date major legislative changes. Good (2007) has examined the role of expert country and medical evidence in asylum appeals in the UK, but he did not examine litigation or the wider context in which expert evidence is situated. Finally, Hamlin (2014) has undertaken fieldwork in the US, Canada and Australia to understand the similarities and differences between their respective Refugee Status Determination (RSD) systems. She argues that the differences between different national systems can be explained by the power exercised by the courts and the government, and by the extent to which administrative decisions on asylum claims are insulated from political interference and judicial review (JR).

Three of the aforementioned studies focus primarily on language/legal discourse, and they offer a fairly static picture of the asylum process. In contrast, Hamlin focuses on the relationship between the judiciary and the legislature without taking into account the wider political ‘field’ in which both operate. To address the limitations of the above studies, I have turned to the literature on the anthropology of law.

Anthropology, litigation and the state

In this study I focus on asylum-related litigation in British courts. In particular, I follow the trajectory of asylum claims as they move from the initial interview conducted by the United Kingdom Border Agency (UKBA), to a lawyer’s office and then to court. This approach allows me to understand the specific facts of each asylum claim, and it provides a window into the wider social field where government/administrative institutions, the courts, non-governmental organizations (NGOs) and other actors attempt to influence judicial decisions. To accomplish this task, I attend to the language used by different actors, including how an asylum claim is ‘translated’, how a claim is argued in court, how judges decide and rationalize their decisions, and how officials alter the rules of the game to make it more difficult for applicants to obtain asylum. However, my interest is not with legal discourse. Though the power of law is expressed in and through language, in the field of asylum and immigration the state exercises its power to block, restrict, refuse and grant (some) asylum applications while simultaneously arresting, detaining and deporting individuals who are refused asylum.

I argue that the asylum system can be studied using Sally Falk Moore’s (1973) concept of law as a ‘semi-autonomous social field’. Moore coined the term to underline the importance of the wider social context in which ‘law’ is situated. She wanted to analyse the norms, procedures and rules of law, the various ‘agencies’ involved in the administration and adjudication of law and other organizations linked to the legal process. In her view, it is important to look at how government departments and the courts work, at the work of judges, lawyers and associated professionals, and at how the ‘market’ affects the delivery of justice. It is in this sense that I argue that immigration law and practice constitutes a ‘semi-autonomous social field’ which is both encapsulated by ‘law’ but is also semi-autonomous from it, in the sense that asylum litigation is influenced by organizations and processes ‘outside’ the law.

Each institution/organization, and the individuals who work in them, can usefully be seen as pursuing different objectives. For this reason, and following Long (2004), I argue that institutions need to be analysed as social ‘actors’ capable of pursuing a range of ‘projects’/agendas. One way of thinking about the importance of actors in this field of study is offered by Conley and O’Barr (1998: 89), who observed that: ‘the entity we call the law manifests itself in the behaviour of legal officials . . . . Because these are real people, their orientations and reactions are not uniform, but rather vary in interesting ways.’

It is therefore necessary to understand the perspective of both individuals and institutions whose actions and interests converge in ‘a complex interplay of specific . . . strategies, “projects”, resource endowments (material/technical and social/institutional), discourses and meanings’ (Long 2004: 15). This approach allows me to understand how institutions and actors conceive of and act in the asylum field, where their actions converge in court to produce a legal decision.

Given the dominant role played by the state in the asylum field, it is necessary to sketch out my approach to it before describing the field. Studies of the state, and in particular the institutions responsible for immigration and asylum law and policy, have tended to follow the work of Max Weber by examining the formal, organizational nature of bureaucracy. Thus Heyman’s (1995, 2004) work on the US immigration service points out the importance of ‘bureaucratic thought work’, the power of senior officials, and the impact of training and bureaucratic ‘subculture’ (Gilboy 1991; Jubany 2011) on the way that bureaucrats administer, regulate and control migrants and asylum applicants. This approach stresses the importance of understanding how bureaucracy works, the nature of work routines and workloads, and the ‘local knowledge’/‘thought work’ of officials.

Another, complimentary, approach is to study ‘the signature of the state’. Thus Veena Das has argued that the state can usefully be perceived as ‘a form of regulation that oscillates between a rational mode and a magical mode of being’ (Das 2004: 225). From the perspective of undocumented migrants and asylum seekers who stand at the margins of the state, the state is revealed in the way that officials invoke the law and make discretionary decisions. Here the written decisions and documents issued by officials directly affect the lives of individuals and, through their iterability and citability, documents take on a ‘magical’ significance because at its margins the state is powerful and illegible (Hoag 2010). This is a useful counterpart to Weberian approaches, especially when officials deliberately seek to remain ‘invisible’ and unaccountable (Jubany 2011; see below).

Das’s notion of the ‘signature of the state’ can be stretched to include instances where officials fail to take a decision that falls within their discretionary power. Official failures/refusals to act affect asylum applicants who are refused status, deported or who are turned away at the border (Jordan, Strath and Triandafyllidou 2003). Instances of inaction or apparent failure to act in a reasonable or timely manner are rebuffed by officials who argue that all reasonable steps were taken and that complaints about inaction are unfounded. Typically, however, the underlying reason for inaction arises from ‘lack of governance’ within an institution, which leads to poor and/or unlawful decisions (UK 2012b: 2).

For instance, when an asylum applicant makes a fresh asylum application or files a judicial review against the decision of an official – which should suspend further state action against them – and the application is ignored or is not processed, the individual is left destitute or is deported. From the point of view of an asylum applicant who has complied with the law, it is not possible to understand why a petition succeeds or fails. In this context, official actions defy rational explanation. Both approaches outlined above – a concern with the state as a powerful bureaucracy and with how asylum applicants experience it – are pursued in this study.

There are a number of state institutions which directly shape the asylum field but which are normally seen as being distinct from or apart from ‘law’. For instance, in parliament, elected politicians review, debate and pass legislation that fundamentally shapes asylum and immigration law and the way the entire field functions. At one remove from parliament is the Home Office (HO) (see Chapters 2 and 3), which I argue is the central institution in the asylum system. This department, overseen by the Secretary of State for the Home Department (SSHD), is part of the executive branch of the state. The Secretary of State, an elected politician, is responsible for immigration and asylum policy and the administration of the Home Office and its operational wing, the UK Border Agency. In addition to implementing legislation, the SSHD also creates law and policy by making formal policy statements and by ‘laying statements’ before parliament or the House of Lords (HoL).

Cabinet decisions and those of the SSHD are communicated to the HO/UKBA via discussions with senior officials in the Policy Development Group before being transmitted downwards to a plethora of officials who are expected to implement them (see Chapter 3). Crucially, policy-making in the HO/UKBA is an intensely insulated process which results in policies and decisions that are frequently in tension with the wider legal/statutory framework, including the 1951 Refugee Convention (Campbell 2013a; see Chapter 8 in this volume).

I focus on asylum litigation for two reasons. First, an asylum appeal is shaped in important ways by the way in which the HO/UKBA process and decide the initial claim for asylum. This ‘pre-litigation’ work is directly affected by HO/UKBA policies and instructions and by internal bureaucratic processes, e.g. the imposition of management targets requiring quick decisions, the quality of training given to caseworkers and so on, which gives rise to litigation, i.e. judicial reviews against official decisions and legal appeals. Thus HO asylum case workers interview asylum applicants at the beginning of the asylum process and make an initial decision on the claim. Typically, about 80 per cent of initial applications are refused by HO caseworkers, though 25–33 per cent of these decisions are overturned on appeal (Asylum Aid 2013; Amnesty International 2004; Smith 2004).

A second reason for focusing on litigation is that it provides a window into the key issues raised by the asylum claim and the work of state institutions and other institutional and individual actors in the asylum field. The work of a range of institutions is revealed in the legal and policy issues argued in an asylum claim, including behind-the-scenes work to influence how a claim is decided. Furthermore, the analysis of legal cases reveals that, contrary to official statements, litigation is a key element of HO policy and is used to secure HO policy objectives.

Courts are important institutional ‘actors’ which can be examined through an analysis of the decisions of immigration and appellate judges. In the UK the work of judges has primarily been analysed by scrutinizing written decisions (e.g. Harvey 1998; Yeo 2005). Indeed, only determinations promulgated at a specific point in time have been examined, even though many decisions are overturned on appeal. More problematically, researchers have not had access to all the relevant material – i.e. a record of court proceedings and individual case files – to accurately assess how cases are argued and decided.¹

In the US and Canada, where statistics on judicial decisions are publicly available, researchers have provided a detailed analysis of judicial decision-making at all levels of the asylum process. For both the US and Canada, research has shown that a decision on an asylum claim ‘depends in large measure on which government official decides the claims’ (Ramji-Nogales, Schoenholtz and Schrag 2007: 296). Rehaag concluded his study of asylum adjudication in Canada in the following terms: ‘outcomes in refugee adjudication appear to hinge, at least in part, on the identity of the adjudicator assigned’ (2008: 335). These studies argue that the key problem is judicial decision-making. While this is certainly part of the answer, I argue that reliance on statistics is misleading unless it is goes hand in hand with in-depth, qualitative research that follows litigation and situates judicial decisions in a much wider political field.

Other important actors to understand are immigration caseworkers/solicitors and interpreters, who work in tandem to prepare an asylum application and the legal appeal. Due to the complexity of asylum law, applicants have little chance of obtaining asylum without legal assistance, and lawyers need interpreters to interview applicants. In effect, lawyers and interpreters (in the UK interpreters are barred from offering legal advice) function as ‘gatekeepers’ who can facilitate/block access to the legal system.

I draw on US-based research to set out my approach to these actors. Thus Mather and Yngvesson (1980–1981) look at the importance of language, lawyers and audience in the ‘transformation’ of disputes, and show how normative legal concepts and intervention by key individuals shape and influence the dispute process (cf. Conley and O’Barr 1998: chap. 5). Thus lawyers, judges, legal officials and interpreters use their skill in ‘manipulating the discourse’ of law to shape, redefine, redirect and argue a dispute. Indeed, Mather and Yngvesson argue that ‘disputing be viewed as a bargaining process in which the object of the dispute, and the normative framework to be applied, are negotiated as the dispute proceeds’ (1980–1981: 818). They note that is common to narrow the focus, restrict or exclude participation in the dispute beyond the immediate parties, and adopt a highly specialized form of discourse which the disputants are unfamiliar with and which prevents them from participating in the case. This aptly describes the trajectory of litigation in the UK’s asylum system.

In a similar vein, Galanter has described lawyers as ‘translators’ in the sense that they fit a client’s dispute into applicable legal categories and screen out claims they are not inclined to pursue (1983: 19). Indeed, Cunningham (1992) has argued that a lawyer’s ‘translation’ of a case may misrepresent a client. More specifically, McKinley discusses a case in which an asylum applicant’s narrative was substantially ‘recast’, initially against the wishes of the woman, ‘into a persuasive and intelligible format for the judiciary to render a favourable decision’ (1997: 70; see also James and Killick 2012).

The above observations raise three important concerns when examining the work of asylum case workers and interpreters. First, because the vast majority o...

Table of contents

• Cover Page
• Praise
• Bureaucracy, Law and Dystopia in the United Kingdom’s Asylum System
• Law and Migration
• Title
• Copyright
• Contents
• List of Boxes and Tables
• List of Cases
• Case Law, International Legal Conventions and Other Legal Documents
• Acknowledgements
• 1 An Anthropological Approach to Studying the Asylum Field
• 2 The Evolution of the British Asylum System
• 3 The Work of the British Home Office and the UK Border Agency
• 4 Taking and Making Refugee Claims: The Work of Immigration Caseworkers, Interpreters and Barristers
• 5 The Immigration and Asylum Tribunal and The Work of Immigration Judges
• 6 The Politics of ‘Permission’ and The Court of Appeal
• 7 The Kafkaesque Experience of Seeking Asylum In The Uk
• 8 Interest Groups, Asylum Policy and Home Office Intransigence
• Conclusion and Postscript
• Glossary
• Bibliography
• Index