Rich Countries and Asylum

The question of how to respond to people fleeing the risk of persecution is one of the touchstone political issues of our timesFootnote 1. In 2022, the UNHCR reported that there were over 100 million forced migrants for the first time (UNHCR, 2022), underscoring the importance of a coherent and humane response to human displacement at a global level.

Despite only receiving a relatively small fraction of forced migrants globally, however, rich countries have often been reluctant to welcome them. Indeed, when welcoming initiatives gathered momentum in Europe in 2015 and 2016, there was a rightward political reaction that saw a collection of anti-immigrant parties gain popularity and power and implement a swathe of exclusionary policies in response (Aisch, 2017). More frequently than welcoming forcibly displaced people, rich countries have engaged in efforts to impede migrants travelling to their territories: narrowing the legal obligations owed to them, intercepting them en route, and dissuading them from ever attempting the journey (Gammeltoft-Hansen, 2011; Moreno-Lax, 2017; Watkins, 2017). They have even coopted the language and imagery of humanitarianism, care, and safety to justify exclusionary policies and practices against them (Garelli & Tazzioli, 2018; Musarò, 2017).

These actions have been undertaken with astonishingly little reference to rich countries’, and in particular European States’, own roles in fomenting the very violence that has caused many of the world’s forcibly displaced people to move in the first place (Panayi & Virdee, 2011; Mayblin, 2017). Disregard for environmental sustainability in poor countries, reluctance to properly finance the initiatives needed to combat climate change, construction and participation in global neoliberal structures of profit-seeking, extraction, and exploitation that exacerbate resource scarcity and conflict, and the long shadows of colonialism, neo-colonialism, and unfair global trading laws all underscore Europe’s culpability in generating the very violence and hardships that its asylum policies keep at arm’s length.

In keeping with this truculent attitude towards their moral and legal international responsibilities for forcibly displaced people, rich countries’ treatment of asylum claimants once they have arrived within their territories is often similarly hostile and unwelcoming. Instead of allowing nationals from war-torn and violence-ravaged countries and regions immediate welfare support and legal routes to safety based upon the geopolitical circumstances giving rise to the migratory episode in question, many have chosen to require people seeking safety to individually undergo protracted, intrusive, re-traumatizing, inconsistent, and complex legal processes that take as their starting point not the human needs of the people seeking safety, but the risk that they might be “scrounging” or “bogus” in some way (Zimmermann, 2011; Tyler, 2013)Footnote 2.

This need not be the case. Ukrainian nationals were swiftly offered legal routes to, and access to support in, other European countries at the beginning of 2022 when Russia invaded Ukraine, for example, illustrating how effectively they can welcome people who have been forced to migrate if they choose to do so. Europe’s suspicious and cautious approach persists in relation to nationals from virtually every other devastating and bloody conflict around the world, however. This is despite the potential benefits of migration to rich, aging economies (Peri, 2020).

The Dual Role of Legal Processes

How is the law enrolled in these processes? On the one hand, legal processes represent an indispensable safeguard of human rights. European states are answerable to the obligations that they have taken on as signatories of the 1951 United Nations Convention Relating to the Status of the RefugeeFootnote 3 (henceforth the “Refugee Convention”), its ProtocolFootnote 4, and a series of other legal instruments. Together, these instruments offer one of the best ways available to ensure that signatories provide minimum levels of protection to forced migrants. There is now a veritable edifice of laws surrounding asylum at a variety of scales (global, regional, and national) that build on the Refugee Convention. The rate at which initial government decisions on asylum claims are overturned in Europe—33% of appealed rejections were overturned and awarded some form of positive decision between 2017 and 2021 amongst the EU-27 for exampleFootnote 5—illustrates how important appeal processes are in ensuring migrant safety. At its best, then, the law acts as a means of holding governments to account for their international obligations and duties.

There is, however, another side to asylum law that Johannesson (2022) touches upon in her article in this special issue: the legitimating role of legal processes surrounding asylum determination decisions. Legal processes employ specific symbolism, social norms, language, and dress to bestow an aura of legitimacy over legal decisions (Darian-Smith, 2004) including asylum determinations. Despite the overturn rate of initially negative decisions at appeal, for the majority of asylum appellants, the decision of the court, tribunal, or review board is again negative. A negative appeal decision often means that states can begin the process of enforcing the removal of a migrant from their territory, which can involve force in a variety of ways including splitting up families, detaining migrants, and coercing individuals onto return flights or voyages that they sometimes believe will deliver them into mortal danger. The symbolic nature of the law, which bestows the appearance of objectivity, reasonableness, and dispassion upon the deliberations that take place, often in power-laden contexts (Carlen, 1976), allows these forcible processes to cast themselves as “fair” and “just,” and we should never lose sight of the gravity of these claims.

It is important, then, to be cognizant of the dual role of legal processes in asylum systems: as a check and balance over state actions, and as facilitation and legitimation of state-sanctioned force. This latter function of the law is of particular interest and requires particular critical scrutiny. This is because there exists the possibility of a separation and disjunction between the actual quality of the law—in terms of the thoroughness and robustness of the checks that are undertaken during legal processes—and the impression of quality derived by means of the symbolism outlined. A raft of socio-legal scholarship is concerned precisely with the distinction between the law as it appears, and the law as it is actually practiced and experienced (see Bybee & Narasimhan, 2015, for a survey of this literature). One of the key lessons from legal anthropology is that the law is slippery and beguiling, often designed to satisfy the onlooker while remaining opaque, obscure, and unintelligible to the non-expert.

And the actual robustness of asylum law in rich countries, as opposed to its projected robustness and objectivity, is something we need to be concerned about for a host of reasons. From the perspective of asylum seekers themselves, asylum claimants in Europe are often unfamiliar with rich countries’ legal processes, distrustful of authorities (perhaps because of cultures of bribery and corruption that they have been exposed to, or ill-treatment at the hands of officials in the past), operating in a second, third, or fourth language, traumatized by their experiences, straining to recollect memories that are not only distant but also painful to recall, stigmatized in the society of their host country, poorly informed about their legal rights and the roles of the people involved in determining their claim, and distracted by health concerns and worries for their friends and family still in their country of origin or en route (Gill et al., 2020; Gill et al., forthcoming). From the perspective of the professional lawyers, judges, and interpreters involved in asylum determination, their work is frequently under-funded, poorly supported in terms of mental health measures (which is crucial given the traumatic content of many of the cases), exposed to negative political scrutiny or the constant threat of it, and subject to extremely demanding work schedules (Hambly & Gill, 2020). These factors can lead to burn-out and dissociation, pressure to perform the work in conditions that are not conducive to quality and consideration, and a tendency to turn towards their immediate, insular communities of practice for quality assurance rather than looking outwards to more independent benchmarking standards (Liodden, 2019). For all these reasons, asylum law in real life must be distinguished from its portrayal in legal texts, or how it is projected as firm, dependable, and objective via legal linguistic norms and symbolic architecture such as those employed during hearings. Asylum law is fragile—vulnerable to disruption from a whole variety of different intersecting factors: political, psychological, temporal, and social (Gill et al., forthcoming).

Legal Linguistic Fragility

Asylum law is also linguistically fragile. Indeed, the linguistic aspects of asylum determination processes are both constitutive of and reflective of the other forms of fragility that characterize them. The papers in this special issue expertly demonstrate this.

Smith-Khan (2022), for example, explores the way unexamined linguistic assumptions were identified via a judicial review in a case she discusses. She paints a relatively optimistic picture of legal authorities paying attention to the complexities and vagaries of language, demonstrating awareness of the subjectivity inherent to spoken communication, and being willing to hesitate about and revise legal decisions that have not carefully attended to linguistic complexity. While I am encouraged by Smith-Khan’s findings and hopeful that other legal authorities will internalize the insights into language that academic sociolinguists continue to produce, her paper also illustrated, for me, the unerring contingency of legal decisions on seemingly minor word choices and turns of phrase. The vulnerability of appellants’ access to justice and safety to linguistic choices made under time pressure during earlier rounds of decision-making on the case she examines reveals the absurdity of claims to legal objectivity and robustness that are embodied in a good deal of the architecture, dress, and rituals of asylum determination. Alas, not every erroneous or ill-considered decision will have a conscientious Justice Stewart willing to unpick and untangle the unexamined assumptions and linguistic blind spots therein.

Nikolaidou et al. (2022)’s paper exposes some of the same sorts of contingencies—their discussion of the different potential meanings of the word “brother,” for instance, conveys the very real risks of mistranslation, with potentially disastrous consequences. Their paper also points towards a different sort of fragility of the asylum determination process though: this time in relation to the power relations between the various actors involved in asylum determination. I was fascinated by their account of “face-threatening” situations which reminds us that the interpreter, the public counsel, and the case officer each have to approach their engagement with the specific case at hand in the context of their longer-term relationships with the other parties and institutions that employ them, vouch for them and will likely meet them again in the context of another case in the future. The sociology of encounters in the course of asylum determination, like those during asylum interviews at the Swedish Asylum Agency that Nikolaidou et al. examine, adds another layer of complexity to asylum determination processes. The power relations that structure them, as revealed and constructed through linguistics, represent another site at which applicants’ access to justice can be shaped and thwarted.

Verhaeghe et al. (2023)’s paper makes another important contribution, this time in relation to the obfuscatory effects of linguistic categories. Focusing on the commonly used category of LGBTI applicants, they are critical of the way this “umbrella category” fails to adequately address specifically lesbian experiences. The article goes on to expertly draw out the implications of this lumping together, examining its impact on credibility assessment, the credible performance of lesbian experience, and the ways lesbians are expected to conform to preconceived ideas of lesbian realities in the minds of decision-makers. All in all, the paper conveys the unhelpful consequences of obscuring lesbian narratives by using an essentialist discourse that runs the experiences of gay men and lesbians together. In response to what they see as a gender gap in the scholarly treatment of lesbian asylum claimants, they recommend an approach that is more nuanced, informed by intersectionality and feminist scholarship. Their analysis is incisive and arresting and, I hope, will be widely read and used.

Johannesson’s paper stands out for demonstrating a specific and different function of language in the courts. If the other papers pointed towards the fallibility of language to context, time pressure, power relations, and blunt categorizations, Johannesson’s paper reveals the power of language and, specifically, its ability to convey authority. She asks why academics have not had more influence over the practicing of asylum law given the high volume of studies that have identified inadequacies and the pressing need for improvements, including in relation to socio-linguistic approaches to legal determinations. She argues, by way of an answer to this question, that tacit messaging achieved through the symbolism of the courts establishes their objectivity, professionalism, and justness, which accounts for what she perceives as the relative impotency of academic work in the field in terms of real-life impacts. Crucially, the language of courts is a key component of this symbolic projection. Johannesson points, for example, to the authoritative and decisive language employed in legal decisions which leaves little room for doubt despite the complex nature of the phenomena under discussion.

Here, then, we have arrived at something of an inventory of five ways in which we can critically approach the role of legal language in the systems of asylum determination in rich countries. First, we have the range of risks associated with mistranslations, miscommunications, and partial or imprecise meaning conveyance between parties, as illustrated in Smith-Khan’s and Nikolaidou et al.’s papers. In the context of potentially life-changing and life-threatening decisions, the inherent potential for mistakes and ambiguities in language is unerring and should be a reason for constant vigilance in asylum determination processes. Second, Smith-Khan also offers us a perspective on the extent and conditions of careful reflection over language as part of legal review processes, illustrating how influential—redemptive even—such reflection might be. Her paper reveals the important metalinguistic role that legal review can play, providing an opportunity to reflect critically on the language used at earlier stages of the asylum determination process. Third, we have the power relations that legal language can both reflect and constitute, as evidenced by Nikolaidou et al.’s paper which shows how metacommunicative sequences are used by participants in the asylum determination process to position themselves and others, reflecting the power relationships between them. More broadly, the law can sometimes become very technical and is inherently case-specific, so it is important to be mindful that asylum determination takes place within fields of power such as the backdrop of long colonial histories as well as a range of inequalities across differences in gender, sexuality, race, and class. Fourth, Verhaeghe et al.’s paper offers us an insight into the treachery of essentialized thinking and its associated linguistic devices. The use of the LGBTI acronym has become so widespread and habitual, within and beyond legal settings (including in academia), that the ways it conflates very different groups and experiences have arguably been hiding in plain sight. Their paper thus demonstrates how even familiar and settled language can cement subjective and sometimes unhelpful ways of thinking and challenges all of us to be vigilant in identifying such mechanisms. Fifth, Johannesson’s paper provides us with a way to think about the deployment of language as a method of symbolic justification and legitimation of asylum determination processes. She establishes linguistics as a key form of symbolism and means of generating and conveying authority alongside architecture, dress, and body language. This is important in the light of the separation between the law as it is projected, and the actual efficacy of legal processes described earlier. All in all then, the special issue has illustrated a range of roles that language plays in asylum determination and has, importantly, pushed beyond the first element of the inventory, which has, until now, typically been the focus of scholarly efforts in this area.

Broader Lessons from the Special Issue

Alongside their valuable individual contributions, there are a variety of broader lessons we can learn from the papers in the special issue collectively. The first is the enriching value of international comparisons. The systems of law that underpin asylum determination in Belgium, Sweden, and Australia are different in various ways, and when progressive academics come together to hold workshops (such as we did online in 2020) and write together as we have done for this special issue, we have an important opportunity. That is to spot constructive, access-enhancing ways of doing things in different jurisdictions that we can then hold up as a model in our own countries. This does not necessarily require a peer-reviewed publication about every little difference, but rather a blog piece perhaps, or even just a quick mention to a policy maker, judge, or lawyer that we know. In this way, international networks of scholars working on asylum determination can contribute to slowly ratcheting up the quality of asylum determination procedures globally (or at least slowing its decline).

Another lesson that the collection of papers in this special issue holds for academics working in this area is the value of multidisciplinary research. This special issue powerfully illustrates that perspectives from sociolinguistics can help to cast new light on the way legal processes are operating. Other disciplinary perspectives too can be helpful in highlighting the nature of law, such as sociological, anthropological, and geographical (my own discipline) approaches. It is also interesting to reflect on the utility of multi-disciplinarity beyond this list of disciplines (which those familiar with the field might recognize as the usual suspects), such as historical, dramaturgical, literary, managerial, and economic perspectives on the processes at hand. The extent to which the integration of legal scholars, viewpoints, methodologies, and worldviews into such multidisciplinary projects is possible and desirable requires us to weigh up the relative merits of multidisciplinary and transdisciplinary research, which is probably the topic of another special issue. The point remains, however, that legal phenomena should not be seen as the preserve of legal scholarship, and, when it is not, interesting and useful insights can be generated.

The value of close empirical scholarship is also clearly in evidence from the papers in the special issue. While it is so important to have theoretical and doctrinal scholarship that advocates for better asylum processes and laws, empirically informed work on asylum determination procedures is also indispensable. Not only does it provide insights into a legal process that remains black-boxed and obscure to many, but it also offers a counterweight to representing the law in abstract form (textually or symbolically for example). The papers in this special issue illustrate these functions of empirical work superbly.

Scholarly Influence Beyond Academia

I want to close, though, by addressing the influence of scholarly work amongst the judges, lawyers, interpreters, and others involved in administering the asylum processes under investigation. As Hedlund and Johannesson (2023) make clear in their discussion of normative choices in the introduction to this special issue, there are different perspectives across the papers included in the special issue on the feasibility and utility of attempting to effect changes in policy and practice within the asylum determination systems under study. On the one hand, we might understandably be wary about policy engagement if, for example, it entails the uncritical use of common but problematic policy categories like those of voluntary economic migration and forced migration (Bakewell, 2008). As Hedlund and Johannesson (2023) discuss, citing Johannesson (2022), it may be that the best way to critically assess asylum law’s claims to neutrality and objectivity is from an “outside” (ibid: n.p.) position: exterior to the law and its discourse. A broader point could also be made that border systems actually thrive off low-level policy critique because, by responding to such critiques, they can demonstrate that they are “listening,” “democratic,” even “research-informed,” and adjust themselves in minor ways to appease localized criticisms. Via this process, the fundamental exclusionary logics of the system are never challenged. In this view, academic studies “can barely change the fact that the asylum determination process is unequal and asymmetrical in its core” (Nikolaidou et al., 2022: n.p.). Critical scholars have long warned about the limits of reformist scholarship and the risk that reformism might dampen the potential for more radical change. Indeed, localized system failure can be seen itself as a technique of government that draws critical voices into the repair and reproduction of the dominant system (Vianelli, 2017).

And yet in Johannesson (2022)’s paper, I also detected—and share—her frustration with the low rate at which academic work influences practice in this area. “Open debates,” she writes, “seldom reach beyond academic forums and the results from these discussions have so far had little impact on the criteria and practice of assessing credibility of asylum claims” (Johannesson, 2022: n.p.). In a similar vein, Smith-Khan’s paper conveyed a degree of dissatisfaction about the influence of academic work over asylum determination processes. Holding up an unusual example in which influence does appear to have been achieved, as Smith-Khan does in her paper, confirmed, paradoxically, the rarity of this occurrence, as well as underscoring how valuable the author took such influence to be. For their part, although Verhaeghe et al. (2023) do not focus on working out the policy implications of their insights, they advocate in their closing sentence for “a revision of this high-stakes process” (ibid: n.p.), hinting at the value they might place on such a course of action.

It is worth noting that the papers in this special are about the law, but do not constitute “Legal” scholarship in the sense of doctrinal or so-called black-letter law. As such, there is something of a linguistic gap that must be breached between the policy-makers and system elites, who are steeped in the legal system, with its language and teleology, and the language and concepts used here. But there are some deeper tensions at the heart of the slightly contradictory wariness and frustration I have described. To state the problem at a very general level: on the one hand, refusal to offer short-term, localized policy reforms could come at the price of paralysis and de facto irrelevance of scholarship to the everyday production of systems of domination like migration management systems. On the other hand, engaging in short-term reforms might deplete momentum towards more fundamental changes and might encourage progressive thinkers and activists to settle for a system that is not fundamentally altered.

Mathiesen (1974) was acutely aware of these difficulties when writing his seminal reflection on the politics of abolition. His solution was to identify and support only those short-term reforms that were commensurate with, and clearly made progress towards, the longer-term objective: what he called “reforms of the abolishing kind” (ibid.: 210). What is interesting about his point of view is that he sees no necessary contradiction between policy-relevant work and more radical scholarship. For him, under certain conditions, targeted and reflexive policy-related interventions can have the potential to build towards more fundamental system-level change.

We need to be careful here: advocating for some local policy interventions, that clearly contravene the principles of the larger system-level change we might be seeking should be avoided (a point Mathieson was at pains to reiterate). Scholars who are seeking to fundamentally alter social and governmental arrangements and who work with policy-makers, system designers, and system elites need to be constantly checking themselves to ensure that dissonance between their core values and the activities of their policy-relevant work does not arise. And such dissonance may be unavoidable. To take the example of immigration detention, the development of reforms within what Morris (2016: 66) calls an “‘improvement’ complex”, which describes efforts to make immigration detention more humanitarian and caring, could be seen to be so directly in service of perpetuating immigration detention itself, which many progressive scholars argue should be abolished, that it may not be possible to carve out reforms of the abolishing kind within this context.

With this important caveat in mind though, an emerging question for radical, progressive, and critical scholars is whether there are ways that policy-level improvements and recommendations can build momentum towards larger system change in the particular areas of migration management they are studying. For some, the answer may depend upon how effectively academics can center migrants’ own experiences of border control in their work, and how well academics themselves can translate these into policy-relevant propositions (Gonzalez Benson et al., 2020). The answer may well also depend upon the circumstances and context of the specific policy intervention in question. But is it possible that by building trust with policy-makers, system designers, and system elites in “small” matters, they are more likely to take heed when more fundamental changes are proposed? Could it be that small forms of cooperation with policy-makers, system designers, and system elites can constitute pedagogic opportunities, even if only via the publications listed in an academics’ email signature? Are policy-makers, system designers, and system elites more likely to invite academics to advise them (whereupon an opportunity to set out the broader parameters of critical scholarship’s concerns with the systems of migration management might be presented) if there has already been some prior engagement between the scholar and the policy maker on a more modest matter? Or are these tactics too risky, in the sense that they threaten to draw academics into the very systems they are trying to challenge?

There is room for more work that investigates these questions in order to allow scholars to reflect on the different approaches they have used and perhaps gather the views of policy-makers, system designers, and system elites on their experiences of and approaches to collaboration with academics. In general, the question of the nature and extent of academic engagement with policy-makers and policy agendas in the field of migration management highlights a series of delicate and difficult decisions that many scholars working in this field have to navigate, and that the papers in this special issue have pertinently highlighted.