'Undoubtedly an Expert'? Anthropologists in British Asylum Courts

Article excerpt

A 1987 dictum by Lord Bridge during an appeal hearing in the British House of Lords is often cited by lawyers representing asylum seekers, to remind the court about the seriousness of the issue before them: 'when an administrative decision [is] one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny' (Bugdaycay v. Secretary of State for the Home Department [1987] Imm AR 250). These words carried particular force because there was then no appeals procedure for refused asylum claimants in the United Kingdom, whose only legal remedy was judicial review. Since 1993, there has been a statutory right of appeal under almost all circumstances, yet the consequences of being disbelieved remain just as drastic. Moreover, most asylum seekers cannot, for obvious reasons, produce corroborative evidence of their ill-treatment, much less call their persecutors as witnesses. Asylum decisions therefore depend heavily upon assessments of claimants' credibility, and on the plausibility of their stories in relation to general background information--referred to in the courts as 'objective evidence'--on the situation in their countries of origin.

Many British anthropologists have been asked in recent years to provide such 'objective evidence' in the form of written reports (oral evidence by experts is rare in asylum hearings), but little has been written from an anthropological perspective about this, or indeed about any other aspect of the asylum process. (1) Mahmood (1996a; 1996b) addresses the ethical implications of involvement in asylum cases, and Daniel's study of Tamil torture victims contains vignettes from asylum hearings (1996: 180), but the only detailed account of direct anthropological involvement in an asylum claim remains that by Alvarez and Loucky (1992). It is hard to generalize from this, however, because Loucky was in the unusual position of being hired by the asylum seekers' attorney to conduct fieldwork in their clients' home area.

This article describes the administrative and legal decision-making processes to which asylum claims are subject, and considers how the courts respond to objective evidence from so-called 'country experts'. (2) It looks also at medical expert evidence, which I had assumed--wrongly, as it turned out--would be less problematic for lawyers because of its greater familiarity. Fieldwork in 2000 to 2001 involved observation of about 320 asylum hearings, as well as interviews with adjudicators, tribunal chairs, barristers, solicitors, doctors, and country experts. Rather than focusing on the cut and thrust of oral proceedings themselves, however, this article is concerned solely with their written outputs--known as 'determinations' in the asylum courts themselves and 'judgments' in higher courts--in which members of the judiciary assess the documentary and oral evidence before them, and provide explicit reasons for their decisions.

Whereas for lawyers these decisions serve as vital sources of legal precedent, the concern here is primarily ethnographic. Rather than taking legal discourse at face value, this discussion treats it as an object of study in its own right (Humphreys 1985), contrasting it with discourses employed by experts themselves. In that sense, the analysis belongs squarely in the tradition of the 'new legal pluralism' (Merry 1988: 872) exemplified by recent work on low-level courts in the United States (Conley & O'Barr 1990; Merry 1990).

The 1951 United Nations Convention Relating to the Status of Refugees

The 1951 Refugee Convention, as modified by a 1967 Protocol, defines a 'refugee' as someone who: 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. …