by Lauren Cooper, School of Law and Politics, Cardiff University.
Headlines such as ‘Britain swamped by asylum-seekers’ are an almost daily occurrence within the UK press. However, data actually shows a consistent decrease in success of asylum claims. According to the Refugee Council, the UK received 26,350 asylum applications in 2017, a 14% decrease on the previous year. 68% were refused, but 35% of these were subsequently granted on appeal showing that erroneous decisions were made in over a third of refusals. 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.
To do this, I am undertaking court observations and interviews with judges, Home Office and legal representatives and asylum seekers, to start to create a holistic picture of the role (perceived and actual) of asylum seekers in their claim process. This includes whether asylum seekers play an active role in their asylum claim, the enablers and constraints that legal structures and actors place on that process and the agency of the asylum seeker. This blog focusses on some preliminary findings from the observations in this study.
The vast majority of asylum appeals are heard at Columbus House, situated in Newport, South Wales. Each day, 2 appeals took place in the same courtroom, one after another, with a short break in between. Having completed 22 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 focussing 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.
I observed 22 cases, 11 male appellants and 11 female appellants. They originated from Iran (9), Pakistan (4), Iraq (3), Bangladesh (1), Ethiopia (1), Mongolia (1), Romania (1) Somalia (1), and Sri Lanka (1). I observed 4 different male judges, and 3 female judges. All of the cases had a legal representative and a Home Office Presenting Officer (HOPO), and all but one had an interpreter present. I observed 15 legal representatives (9 men, 6 women) and 8 HOPO’s (4 men, 4 women). The main themes that have emerged in this pilot study are: Language and the role of interpreters, legal representation, and the tactics employed and resources used by appellant asylum seekers.
Language & Interpreters
Language played a largely constraining role in the observed appeals. Most of the appellants had a limited knowledge of the English language, and all but one required an interpreter. When an asylum seeker tried to speak English either the judge, HOPO, or legal representative would stop the asylum seeker; asking them to choose one language.
Content analysis of the observations found 9 examples of good interpretation, and 23 examples of poor interpretation. Good interpretation included whispering by the interpreter throughout HOPO submissions, keeping the appellant informed and as up to date as possible, and the interpreter interrupting the legal representative or HOPO if they had forgotten to pause. Some went beyond literal translation, to convey meaning; one interpreter said ‘In Farsi, we say bible and CD, but that doesn’t necessarily mean singular items’.
There were however, far more examples of inadequate interpretation. Appellants complained that interpreters had trouble understanding them or the legal representatives, and in some cases it was unclear whether, even after several restatements, the interpreter understood. In other instances, the asylum speaker spoke at great length, yet the interpreter only translated for a few seconds. Often during submissions, the interpreter said nothing at all.
All of the hearings observed have had some form of legal representation present. However, that is not to say this was all of the same quality. Content analysis showed 23 examples of poor representation and 31 examples of adequate representation. Legal representatives were often unprepared and had failed to explain the procedure to their client. There were many fumbles, pauses and struggles to find evidence.
However, other representatives furthered the case, and enabled the asylum seeker to assert their agency; often by asking open questions, allowing the asylum seeker to answer in their own words. One representative ensured clarity and consistency throughout, by repeatedly pausing to check that the asylum seeker understood. Legal representatives were also more likely to be both engaged and engaging during the hearing than the HOPO; seeing the asylum seeker as a person rather than a case.
Tactics & Resources
The observations also shed light on the asylum seeker’s ability to assert their agency. Observations uncovered 57 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. Appellants also used hand gestures to clarify what they meant; an example of using the available resources. 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.
These preliminary findings show that the agency of asylum seekers is both constrained and enabled in asylum appeal hearings. The results 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!
Refugee Council, Statistics on refugees and asylum (2018) https://www.refugeecouncil.org.uk/stats