Fair and Consistent Border Controls? A Critical, Multi-methodological and Interdisciplinary Study of Asylum Adjudication in Europe

Project Information

ASYFAIR

Grant agreement ID: 677917

DOI

10.3030/677917

Project closed

EC signature date 24 June 2016

Start date 1 September 2016

End date 28 February 2022

Funded under

• EXCELLENT SCIENCE - European Research Council (ERC)

Total cost

€ 1 252 067,00

EU contribution

€ 1 252 067,00

Coordinated by

THE UNIVERSITY OF EXETER
United Kingdom

Periodic Reporting for period 4 - ASYFAIR (Fair and Consistent Border Controls? A Critical, Multi-methodological and Interdisciplinary Study of Asylum Adjudication in Europe)

Reporting period: 2021-03-01 to 2022-02-28

Summary of the context and overall objectives of the project

ASYFAIR examined the legal procedures used to examine asylum cases in Europe. A team of researchers conducting observations of asylum appeal hearings and interviews with asylum appellants, legal representatives and judges. This generated ethnographic data, interview transcripts and numeric data on what happened at the hearings we observed. For asylum seekers, court proceedings can be hard to access, confusing and intimidating. This project examined the measures taken to allow them to take a full, active part in proceedings.
The EU has implemented the Common European Asylum System (CEAS) to harmonise the procedures of asylum determination in Europe. In line with the EU Charter of Fundamental Rights (Article 47), CEAS aims to guarantee the right to a fair asylum hearing and trial, which should ideally be consistent throughout the EU. Before this project no sustained multi-methodological assessment of progress towards consistency had been carried out. ASYFAIR assessed progress towards harmonisation of asylum determination processes in Europe, and provided new insights into the dilemmas and risks of legal practices concerning asylum adjudication.
ASYFAIR aimed to generate ideas about how to ensure asylum processes are fairer and more accessible. This is important for society because the legal processes being studied safeguard refugees against the risk of refoulement. Refugees are often also prominent in social discourse. Judges and courts are often also under pressure and were going through significant changes, including digitisation, at the time of the research.
Objectives were conceptual and practical. Conceptually we sought to advance understanding of legal materiality and practically to identify feasible improvements to asylum appeals.

Work performed from the beginning of the project to the end of the period covered by the report and main results achieved so far

ASYFAIR recruited a vibrant and talented group of postdoctoral researchers with disciplinary backgrounds in geography, politics, anthropology & law.
Ethnographic observations were conducted in Germany, France, the UK, Austria and Belgium, survey data collected, and interviews undertaken with both professionals involved in the asylum process and former appellants. An edited book was published entitled Asylum Determination in Europe: Ethnographic Perspectives edited by Nick Gill and Anthony Good (2019, Palgrave). Academic articles were written for Geography, Migration and Law journals. A monograph, Inside Asylum Appeals: Access, Participation and Procedure in Europe was contracted at the end of the project.

The mid project workshop occurred in 2019 in Exeter (UK), with two keynote speakers, Professors Tony Good (University of Edinburgh, Scotland) and Barbara Sorgoni (University of Bologna, Italy).
The end of project conference ‘Adjudicating Refugee Claims in Practice: Advocacy and Experience at Asylum Court Appeals’ occurred online in 2021. It involved over 250 participants and 50 paper presentations. The keynote speakers were Professor Nick Gill (Exeter University) and Professor Ashley Terlouw (Radboud University, Nijmegen, Netherlands). It drew together academics and practitioners from law with a range of social scientists, involving sessions on International Experiences of Refugee Status Determination, Credibility (two sessions), Legal Representation, Legal Aid and Information, Vulnerability (three sessions), The Challenges of Asylum Adjudication in Italy: Perspectives from the Field, Religious Conversion Asylum Cases, Asylum in Europe and the Common European Asylum System, Children in Refugee Status Determination, Asylum Determination and Adjudication in the UK, Country of Origin Information in Refugee Status Determination, Case Law and Evidence. The final roundtable, on Fairness and Access to Justice, involved Nick Gill (chair), John Campbell, Cristiano D’Orsi, Tobias Eule, Livia Johannesson, Rebecca Hamlin, Anthony Good, Austin Kocher, Ashley Terlouw & Helena Wray.
The conference programme is here: https://asyfair.com/output/events/asyfair-conference-2021/asyfair-conference-programme/ session recordings here: https://asyfair.com/output/events/asyfair-conference-2021/asyfairconfvideos/.
ASYFAIR’s results were also disseminated through the attendance of conferences & workshops throughout Europe and beyond.

Progress beyond the state of the art and expected potential impact (including the socio-economic impact and the wider societal implications of the project so far)

This project at the inter-face between critical human geography, anthropology, border studies and law, examined asylum appeal processes to identify how to make them more effective and fairer.
It revealed the confusion, improvisation, inconsistency, complexity and emotional turmoil inherent to the process of claiming asylum, underscoring the importance of attending to the social dynamics of legal processes alongside legal doctrine. For example, our work underscored how the atmosphere in hearings could act as a qualitative barrier to access to justice, and that the establishment of hearing atmospheres often hinged more upon security personnel and other seemingly peripheral figures involved than upon judges and lawyers. Our findings highlight the practical difficulties of attending and understanding hearings too, including the central but precarious role that memory plays in the reconstruction of past traumatic events for legal analysis. We also revealed that the speed of legal processes was important: too slow and appellants can forget their experiences or become disheartened, too fast and communication and perceived fairness suffer.
Judges adopted different styles, which we typologize in our work. Idiosyncrasies in judging are important. Choosing how to interpret and cite evidence from the country of origin of asylum seekers is a case in point: we found that judges are sometimes able to use similar sources of evidence to support different, sometimes opposed, viewpoints. One safeguard against idiosyncratic judging is the use of judicial panels, although this we found to be becoming rarer.
In terms of the consistency of appeal processes across Europe, we found a range of differences across countries that often lie outside the doctrinal frame of reference. The degree to which hearing processes were centralised varied significantly for example, as well as the provision of ‘backstage’ staff like ushers, secretaries, clerks and court writers, and the workload expected of judges. Judging asylum appeals is extremely challenging and our work offers various constructive suggestions intended to circulate practices that worked well for judges and appellants during the observations we made.
Other factors that impact upon the asylum process concern the smoothness of communication, which relies not only on interpreters (who are central) but also on an appropriate atmosphere and willingness to collaborate amongst the actors involved. Our work also points to the importance of the initial decision made by government officials in the asylum process. When these are of poor-quality judges must spend time correcting for ‘upstream’ mistakes. We found this to be common. Mistakes included administrative, typographical, transcription, translation and communication errors that could have been addressed easily with modest additional investment at the initial decision-making stage.

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