Doing Bad By Stealth?

By Anthony Good

FROM OUR SERIES, SPEAKING JUSTICE TO POWER: APLA / POLAR RESPOND TO THE TRUMP EXECUTIVE ORDER ON IMMIGRATION

While the Trump administration’s arbitrary curbs on would-be refugees are provoking demonstrations worldwide, it is ironic to reflect that many of the demonstrators live in countries where the immigration rules are just as restrictive, though less overtly discriminatory regarding nationality and religion. Such is certainly the case in the United Kingdom, thanks to the actions of successive Labour and Tory régimes. Why have this week’s demonstrators not directed similar protests against their own governments? In part, this reflects the different means whereby the restrictions were put in place. Whereas Trump’s executive order was theatrically delivered, U.K. immigration restrictions were stealthily established through procedures that were largely invisible to broader British publics.

The U.K. only considers asylum claims from persons already within its borders, but there are many obstacles preventing potential asylum seekers from entering; for example, since 1987 ever stricter carrier liability rules have forced airlines and shipping companies to police the U.K.’s borders on the government’s behalf. Would-be applicants therefore have no legal way of arriving in the U.K., yet the illegality of their arrival may then serve as a basis for rejecting their asylum claim – and even imprisoning them – under legislation in place, with virtually no popular opposition, since 2004.

Most asylum applicants cannot provide supporting evidence that meets normal legal standards; all they have is their narrative of persecution. The United Nations High Commissioner for Refugees (UNHCR) Handbook (paragraph 204) therefore concludes that if that narrative appears credible – “coherent and plausible,” and consistent with “generally known facts” – they should receive the benefit of the doubt.

United Kingdom Visas and Immigration (UKVI) decision-makers are also told to follow paragraph 339L of the Immigration Rules. This lists five preconditions for granting the benefit of the doubt, including that the applicant’s “general credibility… has been established.” However, their attention is also drawn to Section 8 of the 2004 Asylum and Immigration Act, which states that behavior such as not producing a passport or offering a false one, is “damaging” to a claimant’s general credibility.

It was argued that Section 8 violated the integrity of judicial decision-making, so in SM (Iran), the Asylum and Immigration Tribunal stressed that Section 8 did not have to be the starting point for credibility decisions. In JT (Cameroon) the Court of Appeal agreed; section 8 should be read as saying that those forms of behavior were ‘potentially damaging’ to credibility. While these interpretations of Section 8 ease the situation somewhat, the key problem with Section 8 remains the fact that it links credibility to actions completely unrelated to the substance of the asylum claim; actions, indeed, that only arise because of the U.K.’s own policies of restricting entry even for those whose asylum claims prove genuine.

Moreover, whatever the nuances proposed by the courts, the implementation of Section 8 by UKVI is far more crude. The Reasons for Refusal Letters that unsuccessful applicants receive often begin by noting that they entered the U.K. on a false passport, and that under Section 8 their credibility has therefore been damaged. On that basis the letters go on to discredit the applicant’s narrative. In a typical example where I acted as expert witness, the applicant’s account was admitted to accord with “generally known facts” and was also, in my opinion, “coherent and plausible.” Yet in order to justify rejecting each incident that the asylum-seeker described, the Refusal Letter constantly repeated the phrase, “In light of your credibility having been damaged.” The only reason given for this “damaged” credibility concerned her means of entry into the U.K. On that sole basis her account of being raped and tortured was entirely rejected.

These are, of course, somewhat technical points requiring close attention to the minutiae of legislation and bureaucratic regulation, whose impact therefore remains virtually unnoticed by the general public. Nonetheless, it can be argued that aims similar to those that the Trump administration is seeking to achieve in bellicose and incompetent fashion, in the full glare of publicity, were long ago accomplished in the U.K. by stealth, thanks to Theresa May’s predecessors as Home Secretary.

Anthony Good is Professor Emeritus of Anthropology at the University of Edinburgh. He has conducted extensive research on the administrative and legal processes involved in claiming asylum in the U.K., and provided expert testimony in asylum appeals in the U.K., U.S., Canada, and several European countries. His  principal overseas research sites are in Tamil Nadu, India, where he has conducted research on development, kinship, and ceremonial economies. He has acted as a senior consultant for the UK’s Department for International Development (DfID), and conducted projects funded by the ESRC and AHRC on asylum processes in the U.K. and France. In June 2017, he and Dr Daniela Berti (Centre d’Etudes Himalayennes, CNRS, Paris) will co-host a workshop in Edinburgh, funded by the Wenner-Gren Foundation for Anthropological Research, entitled “Taking Nature To The Courtroom. Development Projects, Protected Areas And Religious Reform In South Asia.”