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.
