On Being Heard in Asylum Cases – Evidentiary Assessment through Asylum Interviews

IntroductionThe UN Convention on the Rights of the Child (CRC) accords children the right to give their views on all important decisions in their life (art.12 CRC). In the past decades increased awareness has risen among professionals who work with children in judicial and administrative proceedings, to hear their voices. The key question guiding this research was whether refugee children have the possibility to meaningfully participate in asylum proceedings, as required by international children's rights law and standards? Asylum application procedures are highly complex administrative procedures, that are often not adapted to the capacities and level of maturity of children. Recent studies suggest that the right to participation and information is insufficiently safeguarded for children involved in asylum procedures. Unaccompanied children seeking asylum as young as 6 years of age have to go through the asylum procedure in the Netherlands. Efforts have been put in making this procedure more child-friendly, by designing a child-friendly interview room and training immigration officers. The aim of this study was to explore to what extent the immigration authority takes into account children's voice, age and development, in line with international children's rights.MethodsObservations have been conducted of first instance asylum application interviews with children held by immigration officers. In total 13 interviews with children aged 7–11 have been observed, that were held between 2012 and 2019.ResultsThe results show that child-friendly conversation techniques and tools are used to some extent, however, immigration officers should be trained more extensively in order to enhance the effective participation of young children.DiscussionIt is concluded that interviews with children could be improved by giving children more information and using techniques to communicate with young children. In order to truly hear the child's voice the interviews should be better adapted to the age and level of development of unaccompanied children.

To qualify as a refugee, asylum seekers must have a well-founded fear of persecution in their country of origin due to reasons of race, religion, nationality, sexual orientation, or membership in a particular social group. Assessing the origin and identity of, and alleged acts of persecution against, the applicant is a key element of asylum procedures. Due to a general scarcity of documentary evidence, the decision to grant or deny international protection largely depends on a credibility assessment of the applicant’s oral statements. The study of interviewing and decision-making practices in asylum cases is relatively new to legal psychology. Some best practices in criminal fact-finding procedures, however, translate to the assessment of asylum claims. Even though the evidentiary and legal context of asylum procedures differs from criminal proceedings, the investigative tools and decision-making processes also show similarities. This chapter summarizes the available empirical evidence and uses insights from legal, psychological research to discuss the effectiveness of current interviewing practices and credibility assessments in asylum cases.

Adequate and fair asylum procedures are a precondition for the effective exercise of rights granted to asylum applicants, in particular the prohibition of refoulement. In 1999 the EU Member States decided to work towards a Common European Asylum System. In this context the Procedures Directive was adopted in 2005 and recast in 2013. This directive provides for important procedural guarantees for asylum applicants, but also leaves much discretion to the EU Member States to design their own asylum procedures. This book examines the meaning of the EU right to an effective remedy in terms of the legality and interpretation of the Procedures Directive in regard to several key aspects of asylum procedure: the right to remain on the territory of the Member State, the right to be heard, the standard and burden of proof and evidentiary assessment, judicial review and the use of secret evidence.


 
 
 Every year the Norwegian Directorate of Immigration (UDI) conducts approximately 10,000 interpreter-mediated asylum interviews in Norway. Each asylum interview ends with the interpreter providing a sight translation of the draft interview report (an oral translation of the text) to the asylum seeker. The UDI wished to find out why some interpreters took so much more time than others for sight translation. In response, Oslo and Akershus University College of Applied Sciences initiated a pilot project. The project’s working hypothesis was that slow sight translation was due mainly to a combination of three factors: interpreters’ poor reading skills; interpreters’ poor interpreting techniques; and/or interpreters’ unfamiliarity with the appropriate genre/style. A more complex picture emerged, however, from an analysis of 13 asylum interviews; group work involving 108 UDI interpreters; and discussions with UDI specialists. An asylum report is the joint product of all the participants in an asylum interview, who are typically the asylum seeker, the interviewer and the interpreter. The pilot study showed that each participant could contribute in various ways to slowing the speed of sight translation. Contributing factors identified that were unrelated to the interpreter included the interviewer’s competence in interview techniques; the interviewer’s competence in creating a written record of speech; the asylum seeker’s narrative ability; and the asylum seeker’s ability to correct mistakes in the draft report. All these factors may have just as much impact on the speed of sight translation as the interpreter’s competence. In addition, the physical strain caused by the length of asylum interviews (six hours plus) and the emotional stress potentially caused by such institutional interviews may affect the communicative abilities of all participants. As sight translation in the public sector is an under-researched area, the article starts with a discussion of terminology and an explanation of the UDI context. It then presents a possible explanation for slowness of sight translation and concludes that there is a need for more research into the various factors relevant to sight translation in the public sector and that there is a need to provide systematic training for both interpreters and interpreter users.
 
 

“An absolutely necessary piece”: A qualitative study of legal perspectives on medical affidavits in the asylum process

ABSTRACTAsylum seekers are rarely treated with respect. This is perhaps especially true of institutions that adjudicate the extension of refugee status. In asylum interviews, those seeking refuge are sometimes asked to reveal deeply upsetting stories of their persecution while facing hostility and distrust from their interviewers. I argue that this arises from a failure to properly balance respect with fairness. A maximally fair scheme may not promote respect because ‘fairness‐first’ systems require extensive information to make their judgements. A maximally respectful system might be unfair: without any questioning, some may free‐ride on the trust of others. This article argues that we often place too much emphasis on fairness to the detriment of respect, with a particular focus on the asylum interview. First, I outline the limited discussion of asylum interviews in political philosophy. Second, I consider striking a ‘dynamic balance’ between fairness and respect, as set out by Jonathan Wolff. Third, I argue that a highly idealised version of contemporary asylum interviews puts fairness first at the cost of respect. This fairness‐first model leads to respect deficits in how asylum seekers are treated. Finally, I consider what a respectful asylum determination system might look like, offering three possible routes: civility, humility, and abolition.

Although refugees are offered the potential of asylum protection through the 1951 Convention Relating to the Status of Refugees, many states are attempting to curtail the number of asylum applications received each year. Several scholars have argued that even without such deterrence measures, some refugees are less likely to receive a positive asylum decision than others. Using country level data for 32 European states, this project examines the effects of various characteristics – including gender, age, and state of origin – on the likelihood of being granted asylum. This study is a first attempt at empirically testing the asylum literature’s anecdotal evidence of bias in the decision-making processes in determining the outcomes of asylum claims.

U nlocking Human Dignity: A Plan to Transform the US Immigrant Detention System addresses one of the most troubled features of the US immigration system and highlights the need for fundamental changes to it. The report comes six years since the inception of the Obama administration’s detention reform initiative. In the interim, the number of immigrant detainees per year has risen to more than 400,000, the administration has opened immense new family detention centers, and the overwhelming majority of persons in the custody of the Department of Homeland Security (DHS) have remained in prisons, jails and other secure facilities where they are subject to standards designed for criminal defendants and, in many ways, treated more harshly than criminals. The report’s overarching recommendation is that the US immigrant detention system be dismantled and replaced with a network of supervised release, case management, and community support programs, designed to ensure court appearances. It recognizes that detention may be necessary for short periods and in certain cases, but it rejects detention as a central immigrant “management” tool, and argues that detention should only be used as a last resort if less harmful strategies and programs—viewed on a continuum beginning with the least restrictive and moving to release programs with different levels of supervision, monitoring, and support—cannot reasonably ensure court appearances or (in rare cases) protect the public. It opposes the detention of pregnant and nursing women, bona fide asylum seekers, the very ill, the disabled, the elderly, and other vulnerable persons. It calls for the substantial contraction of detention facilities and “bed space.” As the first step in this process, the report urges Congress to commission a comprehensive study on the benefits, challenges, cost, and time frame for creating a civil immigration detention system. It also proposes that the administration create a full menu of court compliance programs, with varying degrees of supervision, reporting, oversight and monitoring. In order to realize this vision, it offers several additional recommendations. T he Obama administration should desist from using detention as a “deterrent” to illegal migration and de facto refugee flows . DHS should close its family detention centers in favor of community-based supervision and support programs for immigrant families. The vast majority of families would appear for removal proceedings with appropriate orientation, supervision and community support. The growth of an immense family detention infrastructure will not (as intended) deter imperiled persons from seeking refuge in the United States, but will invariably lead to the return of de facto refugees to their persecutors in violation of international law. C ongress should pass legislation to repeal mandatory detention in all but the most egregious criminal and national security cases . US mandatory detention laws cover lawful permanent residents, asylum seekers, petty offenders, and persons with US families and other enduring ties to the United States. By definition, they prevent individualized release determinations based on family ties, employment, housing, criminal history, and other factors. In the overwhelming majority of cases, immigration judges or judicial officers should be permitted to consider the full range of equities and release options for persons in removal proceedings, whether formal court proceedings or non-court, administrative and summary processes. P r ivate corporations should have a more limited, regulated and modest role in a shrinking detention system . The federal government has increasingly ceded responsibility for detention to entities whose loyalties run to their shareholders, not the common good. By some estimates, for-profit prison corporations administer more than 60 percent of the “beds” in the US immigrant detention system. Rather than expanding its reliance on for-profit prison companies, the federal government ought to decrease the use of detention, develop greater government expertise, and strengthen oversight of private contractors. D etention reform should include a significant expansion of Alternative to Detention programs (ATD) . Detention should only be used sparingly, for brief periods (when necessary), and as a last resort when less restrictive strategies cannot reasonably ensure appearances during the adjudication and removal process and cannot protect the public. ATD programs can offer effective, humane alternatives to detention. However, they should not be used to expand detention capacity. Like detention, intensive reporting and monitoring programs can stigmatize and incapacitate persons. If necessary, ATD programs should be treated as a form of custody, which would open them to mandatory detainees. Immigration and Customs Enforcement (ICE) should undertake a comprehensive analysis of its information systems . The proposed review should identify the information ICE tracks on those who are subject to its custody; how, when, and which officials collect, enter, and can access this information; its quality control procedures; and the accessibility of information to congressional oversight committees, government watchdog agencies, relevant ICE officials, and the public. D etained immigrants—those who do not qualify for release or ATD programs—should be held in non-penal settings which reflect the conditions of normal life to the extent feasible . DHS should provide generous access to international organizations, faith-based groups, nongovernmental organizations (NGOs) and the press, to all of its facilities. Immigration judges should adjudicate removal cases now handled through administrative, informal and non-court processes, and should make release and custody determinations soon after their detention for all persons in DHS custody . They should also regularly revisit custody decisions for detainees. However, these responsibilities—added to an immense yearly workload and a daunting backlog of more than 440,000 cases—will require increases in funding and staffing by an order of magnitude. As it stands, the immigration court system receives less than two percent of the combined funding of Customs and Border Protection (CBP) and ICE. The cost of “right-sizing” the immigration court system may well be offset by reductions in DHS detention funding and diminished federal court expenses from habeas corpus petitions. U nrepresented, indigent persons in removal proceedings should be provided with legal representation at the government’s expense . As numerous studies have revealed, legal counsel is one of the most important factors, even more important than the strength of the underlying legal claim, in influencing asylum and other case outcomes. Representation also increases court appearance rates and leads to decreased overall costs to the government due to reduced use of detention, more efficient court proceedings, and less frequent placement of the children of detainees in foster care. More importantly, it contributes to the right decisions being made under the law. Migration and Refugee Services of the US Conference of Catholic Bishops (MRS/USCCB) and the Center for Migration Studies (CMS) approach the detention of immigrants from a pastoral perspective. Each day US Catholic institutions minister to detained immigrants, represent them in removal proceedings, tend to the material and spiritual needs of their families, and witness the pain of traumatized children and the anguish of divided families. Because of the detention system’s devastating effect on the lives of millions of persons each year, MRS/USCCB and CMS strongly support the transformation of this system and urge the Obama administration and Congress to proceed with the proposed reforms with all deliberate haste.

Several studies indicate that immigration is associated with a higher risk for mental disorders, particularly in refugees and asylum seekers. We investigated migration-related distress in outpatients with Turkish migration background and a psychiatric disorder. Asylum applicants (ASA) and migrants with a permanent residency status (PRS) from a specialized German psychiatric outpatient service were compared with respect to clinical variables and stressors related to migration and acculturation. Of n = 620 migrant outpatients (main diagnosis: 3.9% ICD-10 F2, 58.2% F3, 36.5% F4, 1.5% F60), n = 78 (12.6%) were ASA with larger proportions of illiteracy and language difficulties. Communication problems, stress related to migration, shame feelings, homesickness and perceived discrimination occurred more often in ASA whereas family conflicts were more frequent in PRS (P < 0.05). According to our results, adaptation to the new environment of asylum applicants implies more difficulties, especially language problems, feelings of shame, and experience of discrimination. Asylum seeking seems to denote an additional severe psychological stressor.

Despite the existence of the provisions of the Procedures Directive 2013/32/EU, the case law of the Court of Justice of the EU on the right to be heard and well-established case law of the European Court of Human Rights concerning the requirements of a rigorous judicial scrutiny in asylum cases, the assessment of the credibility of the submissions of asylum seekers in procedures for the determination of international protection remains one of the main challenges of the Common European Asylum System (CEAS), which aims to harmonise basic procedural requirements for the rule of law in terms of the effective protection of rights in the Member States of the European Union. The author’s approach in dealing with the question of whether an asylum seeker has a right to be confronted with inconsistencies or implausibilities in his/her submissions, in order to be able to provide a satisfactory explanation for alleged inaccuracies in his/her submissions before a decision is taken, is a methodological one. In the paper, the author follows a particular interpretative pattern that could also be used in cases of other pertinent and open questions on the interpretation of EU law.

Asylum claimants’ experiences of crimmigration controls are shaped by gender, race, and class. This article seeks to show how intersecting identities of women seeking asylum interact with stigma. The article draws from research with 16 asylum seekers in the UK which incorporated narrative interviews, ethnography, and the use of text messaging as a diary method. The article finds that intersecting identities are impacted by crimmigration controls to develop a stigmatised identity. Despite attempts to hide their immigration status, the stigma associated with ‘being’ an asylum seeker was internalised and this became women’s dominant identity, resulting in a series of harms including social isolation.

The United States requires asylum applicants to provide their own interpreters for their interviews at the Asylum Office, barring exceptional circumstances. Applicants can face significant hurdles in finding suitable interpreters, who play a critical role in giving them a voice in the asylum process. Inaccurate interpretation can have serious ramifications such as denial of an applicant’s asylum claim. Despite the critical need for meaningful language access in the asylum process, interpretation at the Asylum Office remains understudied. This article represents a first attempt at bringing the scholarly and practitioner communities together to rethink interpretation at the Asylum Office, with the goal of identifying feasible steps that the Asylum Office can take to enhance language access. This article proposes the below five holistic policy recommendations to improve interpretation at the Asylum Office, based on data from 28 interviews with attorneys who practiced before either the Arlington or Houston Asylum Offices, as well as the authors’ own prior professional experiences advocating on behalf of asylum seekers. 1. Government provision of telephonic interpreters. 2. Advance notice when a bilingual asylum officer can conduct an asylum interview in a language other than English. 3. Additional institutional support for asylum officers including lunch breaks. 4. Improved data collection regarding interpretation. 5. Additional research including analysis of how the COVID-19 pandemic affected interpretation at the Asylum Office. These recommendations are a starting point to improving language access at the Asylum Office. With this article, the authors hope to spark future research and conversations to ensure that individuals with limited English proficiency have meaningful access to asylum interviews.

With 1 in 3 women affected, accounting for one billion women worldwide, Violence Against Women (VAW) constitutes one of the widest reaching human rights violations globally. Although the forms they take may vary, these abuses are not confined to a single social class, geographic region, or culture. Existing studies have yet to describe the full burden of abuse that asylum-seeking women endure throughout their lifetimes. We describe a novel coding tool that classifies types of abuse, identifies abuse perpetrators, and estimates how long and how often each abuse was experienced. The authors used this tool to describe and categorize the abuses endured by 85 cisgender, adult women seeking asylum in the United States who presented to the Weill Cornell Center for Human Rights for forensic medical evaluations from 2013 to 2017. We reviewed a total of 180 legal and forensic medical affidavits that were written in support of the applicants’ asylum claims. Using the coding tool, we identified each abuse, classified every perpetrator, and, whenever possible, estimated how long and how frequently each abuse was endured. Interpretations of the raw data contained in this article and a discussion of their significance can be found in our associated publication: “Gender-Based Violence experienced by Women Seeking Asylum in the United State: A Lifetime of Multiple Traumas Inflicted by Multiple Perpetrators” [1]. The coding instrument described herein characterizes VAW by classifying the narrative data that are included in interviews, focus groups, medical records, and the like. Our coding instrument is the first of its kind to describe all types and severities of violence endured by women, classify the perpetrators of that violence, and delineate the timeline of violence over each individual's life. We hope that this holistic approach to classifying and describing VAW will enable other research groups to examine untested or unrealized associations between victims, perpetrators, and abuses. Ultimately, obtaining more complete data will empower us to advocate more effectively and to design more comprehensive care for victims of VAW.

Anerkjennelse av flyktninger i Norge

The five-minute film Mouth of a Shark (Isobel Blomfield, 2018) conveys a young woman’s experiences and precarious situation while she awaits an outcome on her refugee status determination in Australia. Aasiya (pseudonym) lives in community detention. Her interest in creating the film stemmed from her own acknowledgement that she had a platform as a young, literate asylum seeker woman with a “strong” story, and was therefore in a position to portray asylum seekers in a positive light. However, she cannot be identified in the film, even though it depicts her story, due to concerns over safety and her claim for asylum. We use this example to illustrate issues of anonymity and representation, and suggest strategies in line with our commitment to avoid depersonalising tropes in filmmaking. While we are committed to ensuring that people from refugee and asylum seeker backgrounds exercise agency in filmmaking, protecting Aasiya’s identity had to prevail. We wanted to avoid depersonalising tropes, and instead devised filming strategies that were more respectful of the protagonist and, within the constraint of anonymity, ensured that Aasiya could still represent her story in meaningful ways. We argue for an ethical model that reconciles the need for both anonymity and representation in filmmaking, especially through collaborative editing.