Looking beyond the law: the insanity of refugee status determination

Is promoting the Refugee Convention a massive waste of time? As long as international refugee law is transposed at the national level to the personal and unreviewable judgements of adjudicators within quasi or non-judicial settings, such advocacy barely scratches the surface. So it follows that scrutinising the asylum adjudication process must be an urgent matter. But how to approach ‘the single most complex adjudication function in contemporary western societies’?[1] Testimonial evidence is central to the process and a particularly thorny issue: the psychological factors involved in asylum hearings, the complexities of the oral testimonial as a cross-cultural and multilingual encounter and the narrative mode of the interview all demand highly nuanced analysis. To effectively critique refugee determination processes, we need to look beyond traditional legal scholarship and seek approaches that are sensitive to the complex dynamics involved. I looked around and found such perspectives in the fields of psychology, narrative theory, discourse analysis and sociolinguistics.

Despite the acknowledgement by commentators, governments and UNHCR of the importance of psychological factors in assessing asylum claims, there is little empirical research that specifically addresses the interface between psychology and the implementation of refugee law. In a paper that makes a persuasive appeal for further empirical research in this area, psychologists Herlihy and Turner draw upon theories and models from psychological literature to suggest ways in which perspectives from their discipline may be brought to bear on the asylum process.[2] A refugee claimant, they argue, is not only likely to have had traumatic experiences, these are often exacerbated by stressful – and in some cases painful – conditions that have developed after arrival, such as weight loss, lack of sleep, malnutrition or brain injury. Trust is likely to be a major issue, particularly trust towards government officials, a factor that may cause extreme anxiety in the interview setting. The oral testimony of the claimant is likely to reflect these factors, especially in the ability of the claimant to construct a coherent and consistent narrative, which is a key criterion for credibility assessment.

Herhily and Turner cite psychological literature on the recollection of traumatic events to suggest that sensory events such as those contained in traumatic experiences are significantly different from normal memories, and are very unlikely to be remembered in narrative form. Avoidance of, and dissociation from, past experiences is found to be common in those who have experienced traumatic events. This can impact not only what a claimant might say, but how they say it. Traumatic memories also change over time: in a UK study, 65% of Kosovar Albanian and Bosnian interviewees who had experienced trauma in the past recalled events differently in repeat interviews.[3] Further, the expectations, demands or attitudes of interviewers are also likely to shape the way a story is told. The interviewer brings their own mindset to the interview and has a range of psychological reactions that may be brought to bear on the process.

Cultural differences between claimant and adjudicator can form other barriers to communication. Cultural assumptions and contexts – ranging from beliefs and attitudes, cultural references and codes, to ways of perceiving fundamental concepts such as space and time – can cause enormous difficulties in communication, resulting in frustration, suspicion or downright rejection. Cultural factors were included in an empirical study by Rousseau et al. which leveraged expertise from the disciplines of anthropology and intercultural communication to address what they perceived (in 2002) as a ‘dearth of information’ regarding the impact of cultural difference on the refugee determination process.[4] This Canadian case study focused exclusively on the Immigration Review Board members’ cultural perspectives. All the difficulties in communication, the study found, were owing to a lack of knowledge on the part of the Board members.  This included a thin grasp of the ‘political complexities of violence’, little understanding of everyday life in a war zone, ignorance of the abuse of power by authorities and insensitivity to ‘the use of rape as a political weapon’ among Board members.[5] Lack of knowledge, the study argued, led to an overall suspicion of the testimony and of the claimants themselves. In his analysis of the Swiss application procedure, chiefly based on his own observations as an asylum lawyer and on recorded proceedings, Walter Kalin identified obstacles to ‘undistorted interaction’ but focused on the interaction between the applicant and adjudicator: a) the applicant’s manner of expression; b) the interpreter; c) cultural relativity of concepts – especially regarding truth and d) different perceptions of time.[6] Both these studies articulate a practical reform objective based on the premise that the testimony can be ‘undistorted’ by training individual adjudicators.

Others see the so-called ‘distortion’ as the inevitable enactment of power relations inextricably bound up in the language institutionalised social discourse. No discussion of communication barriers would be complete without some analysis of the use of language itself, but as far as I can see the body of work discussed here has not yet found its way into the legal reform agenda. Indeed, for those sociolinguists, discourse analysts, anthropologists and literary theorists who have brought their theoretical and methodological expertise to bear on the asylum testimonial, the idea of overcoming differences through better knowledge and training would barely scratch the surface of the inequalities embedded in the interaction. This does not imply that such studies express a lack of hope in the role of testimony in the application procedure, on the contrary, the focus on constraining or limiting narrative possibilities is usually accompanied by a reaffirmation of the value of personal testimony as a means to assert individual agency.

Empirical inquiry in this area ostensibly involves local interactions and individual instances but, depending on the aims of the research, most scholars have found the testimony/interview an ideal site for examining ‘global processes of power and domination’.[7] Such is the case in Jan Blommaert’s analysis of the refugee determination process as experienced by African asylum seekers in Belgium. Blommaert juxtaposes records of interviews with the reports of immigration officials to demonstrate inequalities in access to ‘discursive resources’ that characterises the asylum adjudication process.[8] For Blommaert, the term ‘discursive resources’ relates to his overarching claim that communication in our society is not a free-flowing currency shared by all, but a hierarchical system of literacy and communication skills that perpetuates enormous, and for the most part, invisible, inequalities – particularly in institutional settings.

Also in Belgium, but with interview transcripts as data, sociolinguist Karijin Maryns emphasises the extent to which institutional discourse constrains creativity by ‘framing’.[9] In Maryns’ account the discursive mode of the interviewer – emphasising temporal order, accuracy, detail, coherency and consistency – does not take into account the speaker’s linguistic or narrative resources. Maryns notes that asylum seeker narratives are spatially structured – memories are recalled through specific places – and that there are rarely temporal references. Accordingly, the interview transcripts show officials frustrated attempts to contain claimant narratives as per institutional requirements.

The ways in which interview processes and institutional environments can constrain or silence asylum seeker narratives is explored from a range of disciplinary backgrounds. For communications scholar Marco Jacquemet, whose research was undertaken in UNHCR offices in Albania, the refugee narrative is a performance that could potentially empower the speaker/performer but was severely restricted by UNHCR policy and practice in his sample interviews.[10] Jacquemet’s fascinating account explains the context that led the UNHCR office in Tirana to silence applicant narratives in order to better distinguish between Kosovar refugees and Albanians attempting to pass as Kosovars.  Rather than tell their stories, applicants were required to answer quiz-like questions about Kosovar history and geography. For Jacquemet the new procedure was not only confusing for applicants – who were disorientated and agitated by the interrogative and seemingly irrelevant process – but also deeply dehumanizing.

Other scholars indicate the ways in which the asylum interview dehumanizes applicants, though perhaps none so directly as Robert Barsky whose distinctly literary approach to narrative as a powerful source of human expression has influenced several of the scholars mentioned here.[11] For Barsky, efforts to impose even more scientific and formal constraints on a form of human expression that is, by nature, resistant to ‘categorisation and rationalisation’ will only further disempower those seeking refugee status, it is the legal system that needs to accommodate ‘outsider narratives’.

For anthropologist Liisa Malkki another mode by which dominant discourses and institutional practices dehumanize refugees is by essentialising their ‘refugeeness’.[12] Malkki’s work in refugee camps is far away from the testimonial setting but seems to me to have an enormous potential to influence reformist critique. For Malkki, who gets the last word, testimonial narratives are not simply about giving people a voice, but are the means by which we can understand the ‘messy historical stuff’ – not simply a tick boxes for human suffering. In hearing refugee narratives, we open the door to understanding historical processes, their interplay with human agency, and perhaps better understand the causes of displacement. What impresses me most about Barsky and Malkki’s critiques is that they invite us to take a step away from bureaucratic processes and question the very idea that a refugee can be defined by generic criteria. Could it be that international laws which impose common standards on the infinite variety of human experience, and societies that measure human decency by adherence to such laws, will inevitably generate insane procedures? Next time I’m panning out: taking my reformist critique away from the determination process to international refugee law itself – for fear I miss the forest for the trees.

[1] A former Chair of the Canadian Immigration and Refugee Board quoted in Millbank, J. (2009) ‘The Ring of Truth: A Case Study of Credibility Assessment in Particular Social Group Refugee Determinations’, International Journal of Refugee Law, 21 (1), pp. 1-33.

[2] Herlihy, J. and Turner, S. (2009) ‘The Psychology of Seeking Protection’, International Journal of Refugee Law, 21 (2), pp. 171-192.

[3] A 2002 study by Jane Herhily, Peter Scragg and Stuart Turner cited in Herlihy and Turner (2009) ‘The Psychology of Seeking Protection’, International Journal of Refugee Law.

[4] Rousseau, C., Crepeau, F., Foxen, P. and Houle, F. (2002) ‘The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-making Process of the Canadian Immigration and Refugee Board, Journal of Refugee Studies, 15 (4), pp. 43-70.

[5] Ibid. pp. 61-62.

[6] Kalin, W. (1986) ‘Troubled Communication: Cross-Cultural Misunderstandings in the Asylum-Hearing’, International Migration Review, 20 (2), pp. 230-241.

[7] De Fina, A., Schiffrin, D. and Bamberg. M. (2006) ‘Introduction’, in Discourse and Identity. Cambridge: Cambridge University Press, pp. 1-26.

[8] Blommaert, J. (2001) ‘Investigating Narrative Inequality: African Asylum Seekers’ Stories in Belgium’, Discourse and Society, 12, pp. 413-449.

[9] Maryns, K. (2005) ‘Displacement in Asylum Seekers’ Narratives’, in Baynham, M. and De Fina, A. (eds) Dislocations/Relocations: Narratives of Displacement. Manchester: St Jerome, pp. 185-196.

[10] Jacquemet, M. (2005) ‘The Registration Interview: Restricting Refugees’ Narrative Performances’, in Baynham, M. and De Fina, A. (eds) Dislocations/Relocations: Narratives of Displacement. Manchester: St Jerome, pp. 197-218.

[11] Barsky. R. ‘Stories from the Court of Appeal in Literature and Law’, in Baynham, M. and De Fina, A. (eds) Dislocations/Relocations: Narratives of Displacement. Manchester: St Jerome, pp.221-339.

[12] Malkki, L. H. (1996) ‘Speechless Emissaries: Refugees, Humanitarianism, and Dehistoricization’, Cultural Anthropology, 11 (3), pp. 377-404 and Malkki, L. H. (1995) ‘Refugees and Exile: From “Refugee Studies” to the National Order of Things’, Annual Review of Anthropology, 24, pp. 495-523.

One comment

  1. […] asylum seekers enter exchanges for material resources in receiving countries. In the process of refugee status determination, their complicated narratives are reduced to a core “case” of traumatization, which is then […]


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