Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  The level of probability that a refugee needs to show of being persecuted is low, and this is the case for two reasons. Firstly, it has always been recognised that it is difficult for a refugee to prove his or her case; repressive regimes rarely document their own crimes or allow them to be documented by others. Even if there was some documentary proof you could have brought with you, if you were a refugee would you have thought to do so or would you just have fled when you had the chance? Secondly, the consequences of making a wrong decision are also recognised: these are life-and-death cases. The words ‘being persecuted’ have now acquired a particular legal meaning, but broadly they mean ‘serious harm’. This might consist of serious one-off harm, like torture or rape. But lesser injury also qualifies if repeated over a long period. The persecution must also be experienced for one of the five reasons stated above, or else the person is not legally a refugee. For example, those fleeing drought or natural disaster might be referred to as refugees in news reports, but they are not technically refugees under the Refugee Convention.

  Returning to my client in south London, the X-ray had no name on it and could have belonged to anyone; there was nothing concrete to link it to the man in front of me claiming it was of his. It seemed miraculous that he had survived; perhaps, I had to consider, too miraculous to be plausible to a civil servant. There was no proof that the man had been shot for the reasons he claimed, and he might have been shot by accident or because of a personal dispute with a neighbour or while carrying out a bank robbery. There were no press accounts of the event in question, while it might be expected that an attack of that nature would be reported. My client’s problem could perhaps be interpreted as a localised one, and he might be expected to relocate elsewhere in the very populous country from which he came. Then, even if he was believed, the person who shot him was unknown, and as far as we knew not a state official; perhaps my client would be expected to seek protection from the authorities on his return. An official was likely to ask why he could not go to the police for protection in his own country rather than fleeing all the way to ours.

  We talked through the additional evidence he might be able to obtain and what medical evidence we could request from the doctors. I questioned him about what had happened to see if it all made sense, to determine whether he sounded ‘credible’ and to assess him as a witness. How would he perform in a Home Office interview, a notoriously hit-and-miss and sometimes very confrontational environment, in which the interviewer may insist that the account is told in reverse, starting at the most recent event and working backwards from there?

  Happily, he was granted asylum in the end. But what makes some officials so sceptical and even cynical about asylum seekers’ stories?

  THE CULTURE OF DISBELIEF

  The advent of the internet has altered the way that asylum claims are decided – gone are the days of using Lonely Planet guides and dog-eared photocopies of old Amnesty International annual reports – but the fundamental scepticism of officials at the Home Office has changed little. In 1999, Asylum Aid published a follow-up to its previously mentioned report, entitled ‘Still No Reason At All’. Amnesty International then issued ‘Get it Right: How Home Office decision-making fails refugees’ in 2004. The UN High Commission for Refugees has been working with the Home Office to improve the quality of decision-making since 2004, and in the Quality Integration Project First Report of 2010, for example, they criticised the ‘poor assessment of credibility by Case Owners when establishing the material facts of an asylum claim’.2

  Asylum Aid returned to the theme in 2011 with ‘Unsustainable: the quality of initial decision-making in women’s asylum claims’. The UK Lesbian and Gay Immigration Group also published ‘Failing the Grade: Home Office initial decisions on lesbian and gay claims for asylum’ in 2010 and followed up with ‘Missing the Mark’ in 2014. Medical charity Freedom from Torture for its part released ‘Lessons Not Learned: The failures of asylum decision-making in the UK’ in 2019. The fact that these reports continue to be published and continue to criticise what has become known as the Home Office’s ‘culture of disbelief’ tells us that problems remain.

  I was working as a legal adviser at the Oakington immigration detention centre near Cambridge in 2000 when one asylum seeker was told in his official Reasons For Refusal letter that his claim was, and I quote, ‘a pile of pants’.3 In another infamous example, a Home Office caseworker confused guerrillas with gorillas, earnestly writing, ‘Information from the World Wide Fund for Nature confirms that guerrillas are not native to that part of the country and in any event there are few recorded incidents of primates attacking humans unless their natural habitat is disturbed or their young threatened.’ This is an extreme, absurd example, but mistakes about countries, names and dates abound in these refusal letters. Meanwhile, and in spite of making such basic mistakes themselves, the letters continue to shamelessly seize upon the slightest of inaccuracies within migration applications.

  In 2010, a whistleblower revealed that asylum officials in Cardiff were humiliating colleagues who granted asylum by placing a stuffed gorilla they called the ‘grant monkey’ on their desks.4 Another official was reported to have boasted that he forced boys who said they had been forcibly conscripted as child soldiers to lie down on the floor and demonstrate how they shot at people in the bush. I have myself had conversations with Home Office staff who claim, with straight faces, that they can decide cases on instinct, as if asylum claims were some sort of movie poker game. One, who seemed to have quite an interest in firearms, would ask witnesses how to reload a Kalashnikov rifle. Another, who was gay, said they relied on their ‘gaydar’ when deciding how hard to fight cases based on sexuality. That this might be a problematic tactic when assessing people who came from completely different countries and cultures to her own did not seem to have occurred to her.

  There are perhaps three interlocking influences on officials, aside from their own personal beliefs. The first is government policy, whether official or unofficial. Civil servants are supposed to implement the policies of the government of the day, after all. Official government policy is, and has been since the 1990s, that asylum claims are bad. In 1991, Home Secretary Kenneth Baker said that the number of asylum claims being made at that time ‘cannot be sustained year after year’.5 Then, in February 2003, Tony Blair stated that he would like to reduce the number of asylum claims by half. ‘In the end,’ he said, ‘the only way of dealing with this is stop the numbers coming in.’6 In 2015, Theresa May said, ‘I want us to work to reduce the asylum claims made in Britain.’7 Blair got his way, as the chart below shows, but numbers actually rose on May’s watch, despite her best endeavours.

  Source: Migration Observatory.

  The second influence is perceived public opinion, both indirectly through their political masters, who are particularly sensitive to public opinion, and because civil servants are themselves human beings who read newspapers, watch television and are part of the society in which we all live. In the early 2000s, for example, tabloids were inventing stories of asylum seekers eating swans and donkeys. ‘SWAN BAKE: Asylum seekers steal the Queen’s birds for barbecues’ shouted the front page of The Sun on 4 July 2003. ‘Asylum seekers eat our donkeys’ added the Daily Star, not to be outdone, on 31 August of the same year. No doubt the journalists concerned thought these unsubstantiated headlines were a lark. Yet the media have since then constantly conflated asylum with crime, terrorism, illegality, fraud and worse.8

  The third thing hovering over government officials is departmental culture. We have seen, in not just this chapter but throughout this whole book so far, that the Home Office has repeatedly been criticised by a range of external observers, including most recently Wendy Williams in her ‘Windrush Lessons Learned Review’. It has particularly been faulted for its defensive, inward-facing mentality and an institutional culture of disbelief. You might even say that they seem to be like Millwall football fans, singing their infamous chant: ‘No one likes us,
we don’t care!’

  Finally, distancing and even dehumanising refugees is a matter of self-preservation in this current climate. An academic study of the effects of asylum work on officials, lawyers, interpreters, charity workers and judges found that all these professionals pay a price for dealing day-in, day-out with such highly emotive accounts of fear, trauma, violence and persecution.9 I have listened to clients describe horrific torture and seen their awful scars. I have heard detailed accounts of rape and violence. Clients have broken down in tears in front of me, both in court and outside, unable to continue. Others have described horrors dead-eyed and hollowed out. In this job, there is a high risk of ‘vicarious trauma’ and burn-out, leading to stress, depression and what the academics rather dispassionately call ‘task inefficiency’.

  Professionals thus quite understandably fall back on the emotional survival mechanisms of detachment and denial of responsibility, in order ‘to protect themselves from the contagion of these emotions’. One Home Office official, who had spent years listening to and evaluating asylum seekers’ accounts, told the academics, ‘I don’t think I’ve ever heard anything that’s been harrowing, you know, that’s distressed me in any way … I’ve never been personally bothered, I’ve never had a sleepless night about anything.’ That level of detachment, disinterest and denial is genuinely astonishing, to me at least. It must surely be founded on a coping strategy of refusing to believe anything the refugees say. Indeed, another official explained their approach to getting the job done, telling the researchers, ‘In your head, you have to go in thinking, “I don’t really believe this story,” because if you went in there believing that story, you couldn’t really do your job.’ The academics conducting the study found that it was common for officials (and judges) to refuse to engage with particularly traumatic incidents such as rape, and to avoid asking questions about them. Instead, decision-makers would focus on other, less unpalatable aspects of the case.

  Other decision-makers showed signs of ‘case hardening’; they were not just detached but actually started to regard the cases they encountered as routine and mundane. This led to an ever-escalating level of suffering for a story to break through these barriers and for the asylum seeker to win their case. Others avoided responsibility for their role by taking comfort in not being the final decision-maker, referring to the right of appeal to a judge and the low likelihood of an eventual forced removal, even if an appeal were to fail. One civil servant referred to the right of appeal as a ‘nice comfort blanket’ that cushions against the full weight of responsibility for making a decision.

  Officials, lawyers and judges often take solace in being cogs in the larger machine of the justice system. The eventual outcomes are not considered to be the fault or responsibility of an individual professional, but rather the system as a whole. It is sometimes even argued that the machine is needed because there are fake refugees and they need to be identified and ‘weeded out’. I have heard some say that this is required in order to do right by the genuine refugees, as if they benefit in some way by some claimants being refused. It is a false premise, though, and a transparently thin way of avoiding responsibility for deciding what may be life-or-death cases.

  JUDGING LIFE-OR-DEATH CASES

  None of this is to say that making decisions in asylum cases is easy. Some people coming to claim asylum probably do lie about what happened to them in the past. Some perhaps fabricate the whole story. Sometimes they are told what to say by a people smuggler. Other times they may pick up woefully misplaced ideas on the way to the UK, from within their community after arrival or at a notoriously gossipy detention centre, full of desperate people clutching at straws. Some might exaggerate or expand on what really happened to try to increase their chances of success and sometimes the events described just seem so unlikely that they might well sound made up. Sometimes asylum seekers say different things at different times, leading an observer to wonder which version is true, if any. I myself have been in a situation where a client has told me two different, seemingly inconsistent stories, and, when pressed, they asked me which I thought was better. I have also been told by a client, literally as I was about to step into court, that the documents he relied on were actually fakes.10

  If you were genuinely in fear of your life and you found yourself in a mysterious country surrounded by strangers, is it possible you might lie, fake or exaggerate too, if you thought it might save you?

  Rather unhelpfully for those trying to ascertain what really happened in the past, and then guess what might happen in the future, it is actually very hard for a person to accurately and reliably recall and describe the events in their life. Different experiences tend to blend together, the sequence becomes confused and it is hard or impossible to remember the specific day or date of a particular happening.

  Lawyers and judges working in other areas of law know this very well. If you ask two genuine witnesses to a traffic accident what happened to whom, where and when, they will inevitably tell you different things. They are not lying; they just remember things differently, or different details seem more important to one than the other. As a fifteen-year-old work experience student at a local solicitors’ firm in Northfield, Birmingham, I remember the principal asking a police witness what type of car was outside the shop at which a crime had allegedly taken place. I asked him afterwards why he was interested in the car, which seemed irrelevant. With the breezy, knowing air of a man dispensing questionable wisdom, he explained that no one remembers details like that, but the failure to answer the irrelevant question would then cast doubt on the rest of the witness’s evidence. The effect of hostile questioning is much worse for victims of trauma, and genuine refugees are sometimes so damaged by the horrors they have experienced that they cannot string a comprehensible narrative together.

  Asylum lawyers also know all of this well. We know that a client is unlikely to have perfect recall of the events about which they will be questioned, and we know that even if they can remember, they will be reluctant to disclose such horrible traumas, even to a sympathetic interviewer – which many are not. Good solicitors will spend many hours in multiple meetings with a client to try to piece together an account of what happened and when. The idea is that by answering questions, over time the client might, in a modern-day process of Socratic dialogue, eventually settle on what he or she considers, on reflection, to be a single version of the ‘truth’ of what happened. This will then be set out in black and white in a witness statement, at which point the ambiguity and uncertainty appears to the outside world to have fallen away. We lawyers know that this ends up producing an artificially certain, sanitised version of ‘the truth’, but we also know that failing to go through this process with a client is to consign that client to an inevitable refusal. The Home Office applies impossible standards in asylum cases, as the reports by Asylum Aid, Amnesty International and everyone else show, and the adversarial legal process does not allow any place for uncertainty.

  Like those in the legal profession, psychologists are also very aware of the impact of trauma on memory. One of the main symptoms of post-traumatic stress disorder (PTSD) – indeed arguably one of its defining features – is an inability to recollect and describe key distressing events.11 This is Psychology 101. Think about it for a moment: officials and judges expect genuine refugees to recount events accurately and consistently, and yet we also know that a truly traumatised individual will usually be unable to do just that. Returning to the traffic accident example, it is well known that the victim of an accident will often have no memory of the event itself. It is also, if you pause for a minute to think about it, really, really hard to tell a complete stranger about something that happened to you where you felt humiliated and vulnerable. Even if you can remember exactly what happened in detail, you might well be reluctant to tell an official about it in a formal interview room, through an interpreter, when you are meeting that person for the first time. On top of that, the official may not seem terribly fr
iendly and you have good reason to be afraid of authority figures in your own country. Having sat in on, read the notes from and listened to the recordings of thousands of interview records, I can tell you that the tone of many asylum interviews is not what you might hope for in an ideal world.

  Back in 2014, for example, I was increasingly horrified as I read through the notes of an interview that had taken place the year before. There had been no lawyer present. The questions were clearly intended to degrade, humiliate and intimidate and included the following:

  How often did you have intercourse together?

  Is that every day?

  Did you put your penis into X’s backside?

  When X was penetrating you did you have an erection?

  Did you ejaculate?

  Did X ejaculate inside you?

  Why did you use a condom?

  How did you feel when having sex?

  Did you have feelings for other boys?

  Did you have physical relationships with other boys in [city]?

  Did you love X?

  When was his birthday?

  Did you buy him presents?

  Did he buy you presents?