In June 2018 our postdoctoral researcher, Dr Daniel Fisher, presented at the 7th Ethnography and Qualitative Research Conference in Bergamo. Our paper was presented at the panel focused on ‘Contested Rights: Minorities and Justice’, convened by Paola Bonizzoni (University of Milano) and Alberta Giorgi (University of Bergamo). Below you can find the abstract on which the conference paper was based.
More information on the conference can be found here.
Fair and Consistent Asylum Adjudication? A Multi-sited and Interdisciplinary Study of Judicial Asylum Appeals in Europe
We would all like to think that wherever our case is heard in an independent court, consistent procedures and standards of fairness will be applied. We would like to believe that the world outside of the court – such as politics, public discourses and the media – have no influence on court proceedings. However, socio-legal research often shows that these ideals are unlikely to come true in the very real (and material) space of the courtroom. Instead, legal proceedings are frequently heavily influenced by what is happening beyond the walls of the courts. Sometimes the outcomes of legal cases differ significantly between courts in the same country; thus demonstrating a troubled geography to/within legal systems bound supposedly only to the law.
Perhaps these differences have little bearing on the case, and regardless of external influences, we experience a fair legal process. However, for asylum seekers in Europe, court proceedings are highly problematic. Asylum seekers usually have the right to appeal the asylum decision in court, but may not have a choice on where their case is heard and who represents them (and to what extent), and may have little knowledge of the practices that make up court proceedings. If factors related to the fair running of an asylum appeal are inconsistent between hearing centres or EU countries this could be problematic, and even dangerous for asylum seekers.
The Common European Asylum System (CEAS) in the EU intends to standardise 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 be consistent throughout the EU. However, both first instance asylum procedures and judicial asylum appeals differ widely between EU countries, impeding the harmonisation of asylum determination processes in Europe.
As yet no sustained multi-methodological assessment of the claims of consistency inherent to the CEAS has been carried out. An interdisciplinary team at the University of Exeter (UK) have launched a research project to address this issue, entitled ASYFAIR. ASYFAIR is an ERC-funded, multi-sited study to assess progress towards harmonisation of judicial asylum determination processes in Europe. This research – based on both qualitative and quantitative data – aims to provide new conceptual frameworks with which to approach the dilemmas and risks of inconsistency in bureaucratic and legal practices concerning asylum adjudication in the EU.
Consistency is regularly cited as a desirable attribute of border control and asylum procedures, but it has received little critical social scientific attention. Although consistency and fairness are routinely utilised by legal scholars and policy makers to evaluate legal systems, there is a risk that consistency as a concept becomes detached from the concerns of migrants, activists and policy makers and is reduced to little more than a system parameter rather than a principle of law.
The proposed paper draws upon on-going ethnographic observations and preliminary qualitative data analysis. It examines whether consistency (defined as treating like cases alike) is possible given the disruptions that everyday life introduces to systems of control, and raises the question of whether a fair, European asylum adjudication system can actually exist. In this way ASYFAIR critically reflects on the notions of ‘fairness’ and ‘consistency’ that circulate in political, public, legal, media and academic debates on justice.
Rather than focusing on substantive consistency – that is, in outcomes and decisions of asylum appeals – ASYFAIR examines the consistency of legal procedures, and thus goes beyond approaches that valorise decisions, outcomes and legal results. ASYFAIR researchers conduct legal ethnography, observing asylum appeals at hearing centres in France, Germany and the UK in order to develop thick descriptions of judicial behaviour in situ. Ethnographic observations of on-the-ground happenings in these courts allow comparisons of centralised vs. dispersed systems, of common vs. civil law systems, the multiple forms of arbitrariness in asylum adjudication, and the disciplinary uses to which understandings of procedural consistency have been put.
Doing so subjects the lynchpin concept of procedural, judicial consistency to sustained, multi-methodological social scientific scrutiny, and provides an innovative lens through which to critique and inform policy and legislation during a crucial period of consolidation in Europe. The project aims to debunk the myths surrounding the possibility of fair and consistent asylum adjudication in Europe and elsewhere, which are fraught with political controversy and uncertainty.
In summary, ASYFAIR – and the proposed paper – explores the extent to which the complexity of human life is irreducible to procedures in asylum adjudication and seeks to determine the administrative differences across space and time which might affect the ways in which appeals function and proceed.