Knowledge as Practice: Producing Decisional Certainty

Abstract

Much uncertainty inheres in refugee status determination and particularly credibility assessments. This chapter deals with how asylum caseworkers attempt to overcome such uncertainties in order to reach enough decisional certainty for categorising asylum seekers into one of four legal categories: refugee with asylum, refugee with temporary admission, non-refugee with temporary admission and non-refugee without temporary admission. I argue that decision-makers’ explicit “country knowledge” as well as their implicit know-how of how to carry out their tasks and their “gut feeling”—which building on Reckwitz (Zeitschrift für Soziologie 32:4: 282–301, 2003) I conceptualise as professional-practical knowledge—plays a crucial role thereby. Furthermore, this chapter shows how basing negative asylum decisions on non-credibility rather than non-eligibility to refugee status serves as a means for overcoming uncertainties inherent in asylum decision-making, leading to the (re-)production of the so-called “culture of disbelief” in asylum administration.

Over lunch Julie tells me that she still really struggles with assessing the credibility of asylum claims. She has only started working in the SEM a couple of weeks ago and so far, finds credibility determination the most difficult part of her job. “I keep having doubts”, she tells me. She knows that stories ‘only’ have to be “predominantly credible” to fulfil the requirements, but she finds this incredibly difficult to assess. She explains that, at the moment, she is luckily only dealing with asylum applications by Eritreans and they “anyway always receive temporary admission [on humanitarian grounds] or temporary admission as refugees. So, either way they are in safety”. But in other cases assessing credibility “must be so much more difficult”, she fears.¹

Julie’s statements are characteristic for what new decision-makers experience on the job. Many told me that they found reaching final decisions very difficult, especially regarding the assessment of asylum seeker’s credibility—or, more precisely, the credibility of asylum seekers’ statements.² Julie’s statement hints at one important reason for this: Asylum caseworkers’ decisions have very serious consequences for asylum seekers’ lives. In case of a “wrong decision”, asylum seekers may experience further traumatisation, be imprisoned, tortured or even killed, a fact that decision-makers are well aware of. This creates a high emotional burden for decision-makers, making it important for them to reach as much certainty as possible that—to the best of their knowledge—they are taking “the right decision” (see Liodden 2016: 235, 277; Sweeney 2007: 31). This emotional burden is not something that goes away, however, as I will show in this and the following chapter, credibility assessment is something that becomes easier over time, with decision-makers gaining experience and professional-practical knowledge.

That Julie finds credibility assessment so difficult, moreover, has to do with the “fundamental unknowability” (Poertner 2018: 218) inherent in asylum decision-making or what Tobias Kelly (2012) calls “known unknowns”. The term stands for the things decision-makers are aware of that they can never truly know but which, nevertheless, play a crucial role in decision-making. In asylum decision-making, I identify four such major “known unknowns”. In order to be recognised as refugees, applicants must have been persecuted (or—in the words of Article 3 AsylA—have been subject to serious disadvantages) in the past or have a “well-found fear” of being persecuted in the future. The first “known unknown” therein is that decision-makers can never know for sure what will happen to an applicant in the future, of which they are well aware. Assessing the probability of future persecution and, connected to this, the well-founded-ness of fear of future persecution is, therefore, highly challenging for decision-makers. A second “known unknown” is that decision-makers realise they cannot know for sure what “really happened” to the applicant in the past (see Poertner 2018: 218). The fact that they do not and cannot know this is mostly put down to the particular standard of proof in asylum procedures (see Chapter 3). Since credibility assessments are mainly done on the basis of applicants’ statements, decision-makers know that there is always the possibility that applicants could lie—this is something they themselves would probably do, I was often told (see also Kelly 2012). The third “known unknown” is that decision-makers are conscious that they can never—and are also not required to—know for sure whether what the asylum seekers are telling them is “the truth” or not. According to Article 7 of the Asylum Act, the veracity of a story must “just” be probable, that is what credibility means. Many decision-makers told me that, in theory, this meant that a claim must be regarded as 51 per cent probable in order to be deemed credible, which again leaves a lot of room for uncertainty. The fourth “known unknown” in this is that decision-makers are aware of the fact that one can never really know what it means for something to be 51 per cent probable because it is not something that can be measured in numerical terms. Nevertheless, despite these uncertainties, as is characteristic of legal categorisations, asylum decision-makers must in the end reach clear-cut either/or decisions: asylum applicants must either be recognised as refugees and be granted asylum or not, or they must be granted subsidiary protection or not. Hence, as Tobias Kelly claims, a “forced migrant” cannot be “half a refugee” just like a “convict is not a little bit guilty [and] a couple is not partially divorced” (2015: 188). This is illustrated by the statement made by Alexandra when describing her task as a decision-maker to me. Alexandra is a decision-maker close to retirement, who has been working at the SEM for most of her adult life.

Decision-making, well, that’s our trade, […] that’s our main business […]. This might be a bad comparison, but it’s a bit like Caesar in the arena going like this [thumbs up] or like that [thumbs down]. We either say yes or no. There is a little bit of grey area in-between, but in the end we say yes or no, that’s the decision.³

What I am mainly concerned with in this chapter is how SEM officials like Alexandra attempt to overcome the uncertainties described above in order to reach such clear-cut either/or decisions. Thus, rather than dwelling on what these uncertainties are and how they are experienced by the decision-makers, in this chapter I focus on the techniques they devise to overcome these uncertainties and to manage their doubts (see Kelly 2012: 765–766; 2015: 188). By doing so, I follow Tobias Kelly who argues that

[t]he sense of known unknowns and, more importantly, the techniques we devise to try to overcome such ignorance, whilst also being aware of the limits of our knowledge, are central to the ways in which we try to make important decisions. […] The key point […] is not that things are uncertain. Rather, it is that we need to grasp the conditions under which attempts are made to overcome these uncertainties in the full knowledge of their existence. (2012: 765–766)

That decision-making is about reducing uncertainties and doubt is not specific to asylum administrations, but appears to be characteristic of bureaucratic decision-making in general (see Lahusen and Schneider 2017: 12; Liodden 2016: 274; Lipsky 2010: xiii). It is also typical that doubt and uncertainties can never be fully eradicated (see Downs 1967: 3). However, for caseworkers to be able to feel sufficiently confident about their decisions, doubt must be reduced as much as possible. In the SEM, as my analysis in this chapter shows, different factors contribute to this. These include: practice doctrine, “country knowledge”, the production of “on-file facts”—mostly through the questioning techniques in asylum interviews but sometimes also in form of so-called “expert reports”—and, very importantly, decision-makers’ professional-practical knowledge.

This chapter contributes to the overall argument of the book in a threefold way. First, by shedding light on how uncertainties, ambiguities and doubt are reduced in and through the decision-making processes while never being fully eradicated, I contribute to gaining a better understanding not only of how asylum administrations work but also of bureaucracies in general. Nevertheless, it is worth noting that while not being unique to asylum decision-making, the “psychological weight” of taking asylum decisions in the light of their potential consequences for asylum seekers’ lives appears to be particularly elevated in asylum administrations (Rousseau et al. 2002: 44). Furthermore, the specific “known unknowns” arising from the standard of proof in asylum determination constitute another particularity of asylum administrations. Second, this chapter brings out the ways in which structural constraints posed by the law itself—or, more precisely, arising from the clear-cut form necessarily required of legal categorizations—as well as regulatory frameworks in the form of practice doctrine, shape what decision-makers do. Third, as Julia Dahlvik argues, from a praxeological perspective “every practice is first and foremost a knowledge-based activity” (2018: 57). This means that if we want to understand what administrative caseworkers do, we need to pay attention to the knowledge that constitutes their practices. Much of this knowledge is implicit, embodied and non-verbalisable. As I show in this chapter, this kind of non-verbalisable, implicit knowledge—which, building on Andreas Reckwitz’s (2003: 289–294) definition, I call professional-practical knowledge—plays a crucial role in credibility determination by guiding decision-makers’ practices, but also by providing them with the necessary conviction or “sense of security” that they are taking “the right” decision (see also Dahlvik 2018: 57–62). In other words, it shapes what decision-makers do. Drawing on Julia Dahlvik (2018: 58), I argue that this kind of knowledge, on the one hand, shapes the meanings ascribed to certain objects, persons and situations. On the other hand, it provides decision-makers with a sense of what the procedural steps are and of “how a chain of action is competently produced” (ibid.). Finally, it gives decision-makers an understanding of what they want; of what seems appropriate and desirable (ibid.). As such, it becomes clear that professional-practical knowledge—and, more generally, knowledge decision-makers have acquired through experience—constitutes part of caseworkers’ institutional habitus, their schemes of thinking, acting, feeling and desiring that arise from belonging to and working in the SEM.

This chapter mainly focuses on the first above-mentioned aspects of knowledge: how it shapes the meanings ascribed to certain objects, persons and situations. The other two aspects are addressed in Chapters 5 and 6. I start this chapter by introducing a case example to provide an image of what dealing with uncertainties may look like in practice. Following this, the chapter sets out the different means and moments through which uncertainty is turned into decisional certainty, allowing decision-makers to take clear-cut either/or decisions, and the role different types of knowledge play.

Ben’s Case

Ben is a decision-maker in his early thirties, who had been working in the SEM for a couple of months at the time I first met him. It was by chance that I sat in on his interview one morning. Originally, it was planned that I would spend the day with one of Ben’s more experienced co-workers. However, this decision-maker suddenly decided he did not want me attending his asylum interview after all so the head of the asylum unit took me to Ben’s office.⁴ At this point, Ben is just about to start an asylum interview so he hurriedly briefs me on the ‘case’. He tells me that the applicant is a young man from Afghanistan, who claims to have been persecuted due to his former occupation as a bodyguard for an official of the Afghan authorities. He explains that he has already interviewed the same applicant once before, but, because he still does not know how to decide on the case, he has decided to conduct a supplementary interview. The difficulty, he says, lies in the credibility assessment. He explains that while the applicant has told his asylum story in a very detailed manner, there are also serious contradictions in his story. That is why, he says, he just does not know whether to believe the applicant or not. Ben hopes that after the second interview he will finally be able to reach a decision. I ask him how he has prepared for the interview and he tells me that, as usual, he has prepared questions he wants to ask the applicant and that he also wants to confront the applicant with some of the contradictions in the story to see if they can be resolved. Also, because Ben is not very familiar with ‘cases’ from Afghanistan yet, he has read the Asyl- und Wegweisungspraxis (APPA) for Afghanistan. APPAs are institutional guidelines on how to decide asylum cases from specific countries or regions and with specific flight motives. Furthermore, they provide internal “country of origin information”. Studying the APPA, he explains, is important in order for him to have something to compare the applicant’s statements to. He adds that if one already knows the country well, it is not necessary to read and prepare an interview as much as he has in this case. He explains that “knowing the country” is important, because it helps to assess whether what the applicant is saying could be true or not.

Then, Ben gets a phone call from a security guard at the main building, informing him that the applicant, the interpreter and the social aid representative have all arrived. Together we go to collect them, while the minute-taker stays behind in Ben’s office. When we return to Ben’s office everyone takes their assigned seats around a square table on which there are glasses of water and a box of tissues. The interview starts as usual. Ben introduces all the people present and asks the applicant whether he knows what his rights and duties are. The applicant—through the interpreter—confirms that he does. Then, Ben asks the applicant about his family and his education. Next, he questions the applicant thoroughly about his activities as a bodyguard and then requests that the applicant tell him about the different threats he experienced in a chronological order. In his account the claimant says that he and his family had received several death threats from the Taliban; that once he was beaten up by a group of four men who he identified as being Taliban; and that once he was abducted for three days by his persecutors but was released after his father paid a significant amount of ransom money. Ben then continues to ask specific follow-up questions on the different threats. At the end, as is common practice in the SEM, he confronts the applicant with the contradictions he has “found” in the applicant’s narrative.

After the interview, and also during breaks, I ask Ben what he thinks about the ‘case’ and what decision he is going to take. Ben tells me that he still finds it a very difficult ‘case’ and that he is pretty sure not everything the asylum seeker has told him is true, especially not the part about being abducted. Noticing from my puzzled look that the reasons for this are not as clear to me as they are for him, he goes on to explain: “He got really worked up there, emotionally, that just did not seem very authentic”. However, Ben tells me that he does believe the applicant was a bodyguard and that he might really have been threatened a couple of times. And since the requirements for Afghanistan are “quite low”, as he puts it (which is something he considers to be “not so fair”), believing the applicant when he says that he used to be a bodyguard for a government official would probably be enough to give him asylum. Ben also points out that, as a consequence, there is no need for him to “find out the truth about everything”. But, because he still feels unsure about this ‘case’, and says that the second interview has produced even more contradictions in the asylum narrative, he decides to weigh all the credible elements against the non-credible ones. He also thinks that he will probably take another look at the APPA before making the decision.

Unfortunately, by the time Ben writes his decision, I have already left his unit. However, I return a couple of months later for the final decision. Ben has, indeed, taken the decision to grant asylum. On the internal request form for positive decisions—forms which must be counter-signed by a superior but never leave the institution to prevent applicants learning from them how to present a successful claim—Ben has, as requested, identified a persecutor (the Taliban), a “persecutee” (the applicant), a motive for persecution (that the applicant worked for the Afghan authorities) as well as measures of persecution the applicant had suffered (the death threats, beating and abduction). He has also quoted a passage from the APPA to justify his decision: “Intentional attacks on people collaborating with the Afghan government or seen to do so occur frequently”.⁵ In addition, with reference to the claimant’s credibility, he has written that the claimant told his story with a lot of detail and that the story seemed largely plausible, coherent and substantiated. However, he also notes that there were a lot of contradictions in the story, which probably meant that the applicant had invented parts of the story (especially the part about being abducted). But, he writes, the contradictions could have also arisen from the fact that a lot of time has passed between the events in Afghanistan and the asylum interviews. These remarks are followed by a long list of material evidence the applicant has submitted, such as identity documents, a death threat the applicant had received by email as well as a letter confirming that he used to work as a bodyguard for the government official.

Ben’s case is illustrative in many ways. It exemplifies the unease arising from the above-mentioned uncertainties in decision-making. Ben feels equally uneasy about either taking a positive decision in spite of the “severe contradictions” or else taking a negative decision on the basis of these contradictions, even though the applicant had told his story in a “very detailed manner”. Although Ben and I did not talk about this, I assume that one reason for his unease with taking a negative decision despite his uncertainties has to do with him knowing what potential consequences his decision could have on the asylum seeker’s life. Likewise, as I will discuss in more detail in Chapter 5, he wants to avoid having the decision quashed by the Federal Administrative Court. The reason for his unease with taking a positive decision in spite of his uncertainties, have to do with the ideological environment in which Ben works or, in other words, with the ethics and ethos of the office (see Eckert 2020). For Ben, it is important not to be perceived as “too easily” taking a positive decision and not “too naively” believing applicants. Also, in order to get the decision past his superior, Ben needs to convince the latter that his decision is “correct”. All these issues are discussed in Chapters 5 and 6. What is of interest for this chapter, in turn, is rather how Ben goes about overcoming his uncertainties.

The unease Ben feels is something I often encountered in the SEM. Commonly, in order to turn ambiguous situations into unambiguous decisions, caseworkers turn to so-called experts for help or ask colleagues—and sometimes their superiors—for their opinion and advice. The latter they usually do by orally describing the ‘case’ to their colleagues or superiors and asking them for their impression, but occasionally they also ask them to take a look at the minutes of the asylum interview or at the whole case file. Ben has chosen a different solution here, namely to conduct a third supplementary interview. This is not a very popular strategy since supplementary interviews are often perceived as hindering effective decision-making because they cost both time and money, but it is also not uncommon for decision-makers to opt for this solution.

Ben’s case shows how the APPA on Afghanistan helps him manage his uncertainties in two different ways. First, the APPA provides him with “country knowledge” that helps him assess whether what the applicant has told him is likely to have happened in that way or not. Second, it provides him with an “on-file fact”, a fragment of text that can be used for writing and reasoning the final decision. Furthermore, Ben’s case draws attention to the important role the asylum interview plays in helping decision-makers gain enough certainty for taking clear-cut either/or decisions. This has mainly to do with the production of what I call “on-file facts” in the interviews through the usage of specific questioning techniques. The technique Ben uses of starting with questions about family, education and life “at home”, then going on to more and more specific questions about the reasons for applying for asylum and finally to confronting the applicant with contradictions is exemplary of how I observed all but two—very experienced—decision-makers proceed and plays a crucial role in the production of “on-file facts”. But interviews are not only important because of that. They are also vital for decision-makers to develop a better “feeling” of the ‘case’ and to gain a personal impression of the asylum applicant, which Ben’s example also hints at.

In the end, Ben’s final written decision was not quite unambiguous, since on the internal form for positive decisions Ben noted that he had doubts about some parts of the applicant’s story. This is not uncommon for positive decisions. However, final negative decisions never make reference to such ambiguities. This has to do with the fact that, different to positive decisions, the reasoning for negative decisions is sent out to the applicants, leaving no room for ambiguities. Any ambiguities, I was told, would leave the SEM vulnerable to attack and open the door to an easy appeal. This does not mean that there are never any ambivalences and doubts which arise while taking negative decisions. However, in the process of fitting ‘cases’ into legal categories, they are made to disappear. With positive decisions, in turn, if decision-makers feel that there are “still” ambiguities, they will often mention them in case their superior examines the case file closely before the final decision is counter-signed or in case someone else reads the case file. They want to make sure that anyone who appraises the case file sees that they were aware that there were “indicators of non-credibility” in the applicant’s statement—and, thus, possible reasons for rejecting the claim—but that, in the light of the overall picture, they considered these to be irrelevant for the decision.

“Country Knowledge”

Where applicants come from is crucial for decision-making because the applicants’ so-called “country of origin” constitutes an important factor of eligibility. Both the “evaluation of their ‘well-founded fear of persecution’ […] and the possibility of enforcing an expulsion in case of a negative decision” greatly depend on the “country of origin” applicants are associated with (Poertner 2018: 182; see also Bohmer and Shuman 2008; Cabot 2014; Poertner 2017). My sample of case files provides a clear picture of this. The decisions were taken for applicants from nineteen different countries. The claimants who in the end received a positive decision came from only six different countries. Hence, this shows that where the asylum seekers are from is a very strong factor in determining whether they will (or could even) receive asylum (and temporary protection) or not. In this sense, APPAs provide decision-makers with significant guidance. APPAs are internal guidelines on how to decide asylum cases from specific countries or regions and with specific flight motives. They identify certain profiles of people at risk of future persecution. There are APPAs for all the most common “countries of origin” in the SEM. They are created and kept up to date by the Federführungen. In the SEM, the term Federführungen refers to a person or group of people in the SEM responsible for a particular “country of origin”.⁶ They are involved in setting the institution’s decision-making practice for dealing with ‘cases’ from “their” country and—to some extent—try to monitor other decision-makers’ practices regarding ‘cases’ by applicants from the country they are responsible for.⁷

APPAs are always built up the same way. They consist of an introductory part with general remarks on the situation in the country at issue, one part each on how to conduct the first short asylum interviews and the second longer interviews, a section on different asylum motives and the corresponding decisions, and the same for the issue of removal where, for example, the (un-)reasonableness of return for certain groups of people or to certain regions within the country is determined. The part on asylum motives usually includes different possible motives for claiming asylum. Each motive is followed by a guiding principle as to whether in that particular case asylum should be granted or not. The principle is then explained in more detail and recommendations are made on what needs to be examined. In order to create these APPAs and keep them updated, the Federführungen try to keep track of all the relevant judgements by the FAC regarding cases from the country they are responsible for and to see whether they have any effect on the institution’s practice. They also work closely together with the SEM’s country analysts and use the information the latter produce in their so-called country of origin reports to upgrade the APPAs. The country analysts work in a different division of the SEM, namely the division “analysis and services”, and are responsible for writing and updating the internal country of origin reports (COIs) as well as for making COIs written by their counterparts in other countries internally available.⁸ They do not take any decisions and do not set the institution’s decision-making practice. However, decision-makers can consult the analysts in individual cases, as I will show below.⁹

As Ben’s case indicates, APPAS—and “country knowledge” in general—may not only be useful for assessing asylum seekers’ eligibility to refugee status or subsidiary protection, but may also help decision-makers assess the credibility of asylum claims. Country knowledge is mainly used in three different ways for determining the credibility of asylum claims. Firstly, it is used to assess whether applicants are ‘really’ from the place/country they claim to be from. Secondly, they are used to assess whether what the applicants are saying is plausible or, in other words, whether what they claim happened to them could feasibly have taken place in the way described. Thirdly, decision-makers use country knowledge in order to know what kind of behaviour (for instance, concerning manner of speaking or topics of conversation) can or cannot be expected from applicants from different countries. The type of country knowledge used for this varies. There is the country knowledge decision-makers themselves hold. It is knowledge they have acquired through experience on the job, by having dealt with many ‘cases’ from a particular country; and through their preparation work for individual ‘cases’, by having read APPAs and country of origin reports; from having studied maps (nearly all the offices I entered at the SEM had at least one map of the world or a particular region hanging on the wall); and from having done research on the Internet. Furthermore, many decision-makers also try to keep up to date on countries they are dealing with by reading news reports and watching TV documentaries. There is also county knowledge so-called experts hold, which caseworkers can refer to for decision-making. These experts are mainly the SEM’s country analysts, the external language specialists employed by the LINGUA unit of the SEM and to some extent also the Federführungen.

Determining Applicants’ “Country of Origin”

“Finding out” where asylum seekers are from is crucial for the reasons discussed above. Or rather, what is important to “find out” is whether asylum seekers are “really” from where they say they are since, if the applicants are, in the end, considered not to be from that place by the decision-makers, their “actual” origin becomes irrelevant for decision-making. All that matters then is that their stated “country of origin” is not credible. Usually, the assessment of applicants’ “country of origin” is done in the first short asylum interviews which take place at the reception and processing centres (RPC). If asylum seekers do not hand in identity documents which decision-makers believe to be genuine, this assessment is done through what Thomas Scheffer calls an examination of applicants’ “membership knowledge” (2001: 146–127; see also Griffiths 2012; Poertner 2018: 183–185). This test consists of questions about things that people coming from a certain country or place are expected to know, as this extract from the minutes of a first asylum interview illustrates:

Q::

What is the international dialling code of Morocco?

A::

00212.

Q::

What is the name of the king of Morocco?

A::

(asylum seeker smiles) That’s Mohammed the sixth. I am a real Moroccan.

Q::

What’s the name of his wife, the queen?

A::

I know she’s from Fes. When he got married, I wasn’t in Morocco.

Q::

What are the places surrounding Kneitra called?

A::

Kneitra lies about 40 km away from Rabat. There’s an American base camp in Kneitra. The surrounding places are called Sidi Yahia, Sidi Suleiman and Sidi Kassem.¹⁰

The decision-makers then check asylum seekers’ answers against their own country knowledge that they have acquired from previous experience or from doing research on the Internet and studying maps, often as part of the preparation of the interview, but occasionally I also observed decision-makers directly checking the asylum seekers’ answers on the Internet during the interview. It is then up to the decision-makers to set the bar for applicants to pass this test, which in the case cited above, the applicant did (see also Poertner 2018: 183). For caseworkers, it is often more important how applicants answer their questions rather than whether their answers are correct or not as indicated in the following statement made by Angela, a SEM official working in one of the RPCs: “I might ask the claimant how far it is from village A to village B. This is not something I can check, that we can find out whether it is true or not, but that doesn’t really matter. What is much more decisive is how the claimants react and whether what they then say seems realistic”.¹¹ Nevertheless, sometimes the “correctness” of the answers does play a decisive role. Yet, because the information decision-makers use to assess applicants’ answers is potentially also available to the latter—anybody can look it up on the Internet, I was often told—decision-makers do not always automatically equate “correct” answers with credibility. This becomes apparent in the following statement made by Klaus:

I have this case, a Somali, but I’m not sure he’s Somali. […] He could tell me the colour of the number plates; he could name villages, the distances between them […]. He could tell me where the buses leave from, where to buy the ticket […]. All this he knew. But there are two radio stations in Somalia and one TV station and those he didn’t know. Maybe he was in Somalia a long time ago. Maybe he’s not even Somali, but Kenyan and just went to visit someone in Somalia, maybe he has relatives there, maybe he was there, but didn’t grow up there. So how can we evaluate this? I mean, you can look the number plate up. Maybe he heard that we were doing country tests and looked up a couple of things on Wikipedia. But the radio stations he should know. And he gave me the international dialling code of Ethiopia. So what I did then was to look at the minutes and to underline everything in green that was correct and everything in red that wasn’t. And now I have to make an evaluation of it and that is difficult. But according to the interpreter I asked, he should really know the two radio stations.¹²

Because decision-makers, like Klaus, often suspect asylum seekers of having prepared for the “country tests”, it is common practice to regularly keep changing the questions asked during the interviews, with ideas for new questions being frequently exchanged amongst colleagues. In Klaus’s case, it was very important for him to know whether the applicant was from Somalia or not because it determined whether the latter was to be granted temporary protection or not. Therefore, Klaus’s solution was to weigh all the things the applicant had known against the things he had not known and he had also turned to the interpreter for help. The latter is something decision-makers are officially not supposed to do, but, at least in the two RPCs I did fieldwork in, this was quite a common practice. While the opinions provided by the interpreters cannot be used for reasoning final decisions in writing, decision-makers nevertheless perceive them as useful guidance for determining the credibility of applicants’ stated “countries of origin”.¹³ What Klaus could have done instead of asking the interpreter for help, would have been to request a so-called LINGUA test. However, as he explained to me, he had decided against that because for applicants from Somalia there was quite a long waiting list and he wanted to decide the ‘case’ as quickly as possible since it had already been on his desk for quite a while.

LINGUA reports are done by so-called external experts, which are commissioned by the LINGUA unit of the SEM, “a specialised unit for analysis of origin”. These experts examine the applicants’ speech and their “culture knowledge” in order to “determine the country and/or region or, at least, the milieu, which have had the biggest influence on the […] [asylum applicants] in […] [their] process of socialization”.¹⁴ They then send a report with their assessment to the decision-maker in charge of the ‘case’. From what I observed in the SEM, the LINGUA experts’ assessments are generally accepted as a fact, meaning that they are not challenged and are used as “facts” to legitimise and reason final written decisions (see also Dahlvik 2018: 134). Finally, decision-makers also have the possibility to ask the Swiss embassy in the applicant’s “country of origin” to try and find out whether the applicant is really from a particular place in that country. However, as Ephraim Poertner writes, embassy enquiries are “considered the ultima ratio of clarification” because they are “a very costly and time-consuming form of gathering information” (2018: 185). Furthermore, such embassy enquiries can themselves potentially “create a well-founded fear of persecution by placing the applicant on the radar of local authorities” (ibid.). Caseworkers can, therefore, only request that such enquiries be carried out with the permission of their superiors.

Assessing Reasonable Likelihood

Country knowledge is not just used to determine asylum seeker’s “country of origin”. It is also put to use in trying to find out whether what the applicants are saying could have happened in the way they describe and, to some extent, assess asylum seekers’ “overall credibility”. Often, decision-makers rely on country information they themselves have access to and knowledge they have acquired through “experience in the service” (Weber 2013 [1978]: 225) in order to appraise whether what the applicants have told them could be possible or not. This was one of the reasons why Ben read the APPA for Afghanistan before conducting the interview. He said he needed information he could then compare with the applicant’s answers. He also said that if one already knew the country well—which in this case he did not—it was not necessary to read the APPA and prepare oneself as extensively as he had for the interview. Thus, often country knowledge for assessing the plausibility of stories also comes from decision-makers’ experience (see Dahlvik 2018: 57; Jubany 2017: 146). As an example, in one ‘case’ I observed, the decision-maker did not test credibility at all in the asylum interview. When I asked her about it she said: “I just looked at the minutes [of the first interview] and knew it was credible. [The applicant] mentioned so many things we know about Sri Lanka”.¹⁵ However, while stories fitting with what decision-makers know from experience about a country are—as in the example above—usually considered as an indicator of credibility, stories which are seen to be “too standard” are sometimes also read as a sign of non-credibility.¹⁶ At the time of my research, examples of what were commonly referred to as “standard stories” were Iranians claiming to have become known to the authorities due to their political activities in exile, Nigerians claiming to have been persecuted on the grounds of their homosexuality and Tibetans claiming to have been persecuted after participating in a rally: “They were all at a rally, waved around a Dalai Lama flag and then heard that they were being persecuted. That’s the standard story with Tibetans”.¹⁷ Decision-makers took such “standard stories” to mean that they were not true but had been prepared by the asylum seekers because the latter knew that with such stories they could be granted asylum.

Like with the assessment of asylum seekers’ “country of origin”, decision-makers sometimes also turn to so-called experts for help in determining the probability of something having happened in the way it was described by the applicants. Hence, they might go to the Federführung and ask them what they think or they might request help from a country analyst. Decision-makers are not allowed to ask the country analysts for recommendations on how to decide a particular case or for assessments of whether something could be “true” or not, but they can ask them for specific information, for instance, if it is possible to buy a certain medicine in a particular county or if documents are (or could be) genuine and official. In one ‘case’, for example, the decision-maker posed the following questions to the country analyst:

Is marriage forbidden in Egypt between a Christian [man] and Muslim [woman]? If so, does the law order punishment for people trying to enter into such a marriage? […] If a Christian [man] and a Muslim [woman] have children together, who is regarded as the legal guardian of those children? Can an unmarried couple live together in Egypt and have children?¹⁸

The decision-maker was, thereby, trying to find out whether it was likely that the applicants had been persecuted due to their “mixed-religion” marriage. In this case, the decision-maker furthermore decided to request an embassy enquiry, asking the officials at the Swiss embassy in Egypt to investigate the following:

Does the copy of the family register which the applicants have handed in correspond with the records of the registry office in X, respectively is the family register genuine? What can be found out about the people named on the family register (stay, current residence, job, identity, etc.)? Are the applicants known at the above-mentioned address in Y? What can be found out on-site about the time of departure, their reasons for leaving and other useful [aspects], such as professional activities, family background, religious affiliation?¹⁹

The decision-maker finally ended up rejecting the asylum claim following the response she received from the embassy, namely that the family register which the applicants had handed in was a fake.²⁰

Assessing Demeanour

Officially, caseworkers in the SEM are instructed to ignore asylum seekers’ demeanour and emotions and to not let them influence their decision-making. However, caseworkers’ stance towards this is ambivalent. Many agreed that this should be the aim, while several others explicitly stated that they found applicants’ behaviour a useful source of information for assessing credibility. However, regardless of these different opinions conveyed to me, in practice I observed that applicants’ demeanour does very often serve as an indicator and useful source of information for assessing credibility, even if this is not something that can be used to reason final written decisions with (see also Jubany 2011, 2017: 157).

[T]he more you have seen, the better you can judge… Especially with nations - Asians just behave differently to Africans [laughs], Arabs different to Persians. […] [A]t the beginning I found this very difficult. […] But the longer you do this kind of thing, the better you feel what is culturally driven and what just simply isn’t true.²¹

Regarding applicants’ manner of speaking I was, for instance, told by several decision-makers that Iranians spoke in an over-embellished way, but that did not necessarily mean that what they were saying was true, that one could expect Sri Lankans to give detailed accounts of what had happened to them and that Eritreans were not very talkative and could not always be expected to provide many details. This type of country knowledge may, therefore, also influence how high decision-makers set the bar for different groups of asylum seekers to fulfil the credibility requirements.

So far, I have shown how “institutional practice”—or practice doctrine—in the form of APPAs as well as country knowledge help decision-makers’ reduce uncertainties, providing them with what Thomas Scheffer (2003) calls “power of judgement” (Urteilskraft) which allows them to take and justify decisions. Whereas the country knowledge which exists in writing—the LINGUA and embassy reports, country analysts’ answers to consultations, COIs and country of origin information in the APPAs—can be used to reason final decisions, country knowledge decision-makers have themselves acquired through “experience in the service” (Weber 2013 [1978]: 225)—for instance, knowledge of what “standard” or typical stories are or of how people from certain places typically speak and/or behave—cannot. However, this does not mean that this kind of knowledge does not play an essential role in overcoming uncertainty and producing clear-cut either/or decisions. On the contrary, it plays an important part in guiding decision-makers’ practices: what arguments they dig for in the interviews; how they do so (e.g. if they ask many questions to test an applicant’s credibility or if they refrain from doing so because they “already” believe an applicant); and what arguments they look for in the minutes when writing decisions, for instance. But country knowledge is not the only type of knowledge to do so, as the next section of this chapter brings to light.

Producing Decisional Certainty: The Role of Professional-Practical Knowledge

This part of the chapter is essentially about decision-makers’ “gut feeling”, which plays a crucial role in assessing asylum seekers’ credibility as numerous researchers writing about asylum administrations have shown (see, for instance, Dahlvik 2018; Fassin and Kobelinsky 2012; Fassin 2013; Johannesson 2017; Jubany 2011, 2017; Kelly 2012; Liodden 2016; Macklin 1998; Miaz 2017; Thomas 2009). However, this is not specific to asylum administrations. Anne Lavanchy (2014), for instance, describes how “feeling” essentially guides officers’ work in Swiss registry offices when trying to assess the genuineness of marriages—or to “debunk” so-called “bogus marriages”—and Vincent Dubois shows how “instinct” shapes how French welfare workers engage with their “clients” (2010: 98–100).

“Gut feeling”, I argue, can be understood as an expression of what Andreas Reckwitz calls “practical knowledge”. He defines “practical knowledge” as a type of know-how which already forms part of what the practice itself is. It cannot be thought of independently from the practice. It is embodied and incorporated knowledge; a conglomerate of everyday techniques; and a practical sense of self-evident understanding (Reckwitz 2003: 289–294; see also Dahlvik 2018: 57–62; Wagenaar 2004: 651).²² Thus, this knowledge forms part of “the doing” itself (Dahlvik 2018: 57). The “gut feeling” which guides asylum decision-makers’ credibility assessments constitutes precisely this kind of knowledge. This is nicely exemplified by a SEM decision-maker saying to Jonathan Miaz that she could not really explain to him how she took decisions, that was just something one did, just like skiing (Miaz 2017: 212; see also Bloch 1991: 189). Hence, this is why I draw on Reckwitz’s term. However, I add the word “professional” to Reckwitz’s term, making it professional-practical knowledge, to stress the fact that the type of knowledge I am referring to develops on the job and grows out of decision-makers’ profession.

Professional-practical knowledge is not something that can be used for reasoning final decisions. This means that decision-makers cannot write in the final decision: “The claim is credible (or non-credible) because I just know or I can feel that it is”. However, like I described for country knowledge above, it essentially guides decision-makers’ practices. Furthermore, it plays a crucial role in helping decision-makers feel certain about their decisions. More explicit knowledge—like country knowledge—can over time also turn into professional-practical knowledge once it becomes so incorporated by decision-makers that it becomes self-evident and, through this, very difficult to verbalise (see also Miaz 2017: 213).

Since the data I draw on in this book is “conversational in nature” (Affolter et al. 2019: 266), approaching professional-practical knowledge is methodologically challenging (see also Chapter 2). Hence, as soon as we ask a person to put such “gut feelings” into words, we provoke a kind of ex-post rationalisation. Nevertheless, I argue that we should try and come as close as possible to analytically describing this type of knowledge and the role it plays in bureaucratic decision-making because, as Georg Breidenstein et al. (2013: 36) argue, what counts as “normal” and “self-evident” is precisely what we should attempt to grasp as researchers. Furthermore, such ex-post rationalisations can tell us a lot about what decision-makers think they should be doing which is important for understanding bureaucratic work (see Eckert 2020).

All the decision-makers I spoke to in the SEM told me that they preferred interviewing asylum seekers themselves rather than having to decide upon ‘cases’ in which the interview was conducted by a “pooly” or another caseworker.²³ One important reason for this is the “feeling” they get when listening to asylum seekers’ stories during the interviews. During breaks in asylum interviews when I asked decision-makers if they already knew what decision they were going to take, it was common that they explained their decision by referring to their impressions about authenticity, like Ben did. They would claim that an applicant’s story (or parts of a story) was either “authentic” or “not-authentic”, that a story was “clearly true” or that there was something “off” about a story. This was also reflected in the answers I got from many officials when I asked them in a more abstract way how they knew—in general—whether a claim was credible or not. The following statement by Andrea represents a common response I got to this question: “It’s more like a feeling. And then I look for it in the text”.²⁴ What Andrea means by “And then I look for it in the text” is that she looks at the minutes of the asylum interviews to see if she can find any fragments of texts in them that confirm her “feeling” and allow her to develop legal arguments for reasoning her decision with. Professional-practical knowledge structures how and what arguments are looked for in the minutes but also what questions are asked in the interviews, and when and how thoroughly credibility is tested. My reaction to officials telling me that credibility decisions usually started with a feeling was to ask them: “Well ok, yes, but how do you feel this?” The following two statements by Theodor and Ralph indicate how difficult it often was for decision-makers to articulate this feeling:

I don’t really know, maybe some who’s new could [explain how to assess credibility to you] better. I just do it “out of feeling or intuition” (aus dem Gefühl heraus). […] With experience you just somehow know, for instance, that it is “incompatible with practical experience” (erfahrungswidrig), or I don’t know, you just know what arguments there are for non-credibility. […] I mean, it’s not just “intuitive” (gefühlsmässig). Your common sense also develops.²⁵

Well, I have to say, in interviews you realise quickly if it’s credible or not, if a person has experienced something or not. Um, it’s difficult to put into words. It has substance and, you know, such “reality criteria” and the narrative is just different from a person’s who is lying.²⁶

Apart from showing how Theodor and Ralph struggle to verbalise their professional-practical knowledge, their statements also attest that professional experience is crucial for developing professional-practical knowledge. Furthermore, in the explanations they offered me, they rationalise their decisions just like they would in writing final decisions, as I show later on in this chapter. By stating that there are “arguments for non-credibility” and that if something was “incompatible with practical experience” then that was an indicator of non-credibility, Theodor makes reference to criteria from the Swiss Asylum Act and case law. Ralph, in turn, refers to the reality criteria from Criteria-Based Content Analysis. What I mean by criteria from the Asylum Act and case law is the following: article 7 of the Asylum Act sets out the subsequent denominations of non-credibility: “unfoundedness in essential points”, meaning that asylum seekers cannot speak in a detailed manner about events relevant for asylum; “inherent contradictions”; “contradictions to facts” (Tatsachenwidrigkeit) and “forged or falsified evidence” (Art. 7, paragraph 3, AsylA). Thus, credibility is defined negatively. Further criteria are provided by case law, most notably by a judgement made in 2004 by the Commission for Asylum Appeals (now the Federal Administrative Court). In the judgement, it is declared that applicants’ statements are credible if they are sufficiently substantiated, coherent and plausible. Their statements should not be limited to vague descriptions and there should not be any contradictions in the main issues of their stories. Moreover, they should not lack what is called an “inner logic” and should also not contradict facts and “general experiences” (EMARK 2004/1). Finally, the judgement reads that the applicants themselves must appear credible, which is particularly declared not to be the case if they base their claims on forged evidence; conceal or deliberately change important facts (Tatsachen); change or up their claims and add parts to their stories without good cause; do not show sufficient interest in the procedure; or refuse to cooperate (ibid.). For all of these criteria, decision-makers have boilerplates at their disposal for reasoning negative asylum decisions. Boilerplates are fragments of pre-written text that can be used to develop legal arguments.²⁷

The reality criteria Ralph, in turn, refers to are indicators of credibility rather than of non-credibility. They come from Criteria-Based Content Analysis (CBCA), a method/theory from forensic psychology which was originally developed to evaluate testimonies of “victims of child sexual abuse” (Amado et al. 2016: 201). CBCA identifies nineteen “reality criteria” (Realkennzeichen) which are seen as indicators of the statements being based on events that the narrator has experienced.²⁸ At the time of my research, all new decision-makers learnt about these reality criteria in their initial training; and professional development courses were regularly taught by Swiss university forensic psychologists on the method.²⁹ In theory, according to CBCA, narratives need to be systematically analysed in order to see whether any reality criteria can be found, which should then be read as an indicator for credibility. However, this is not how credibility is done in practice in asylum proceedings, with the focus being on trying to find markers of non-credibility and, rather in the absence of these, finding accounts credible, as I will show later on in this chapter.

What role exactly CBCA plays in credibility determination in the SEM remained somewhat of a puzzle to me. One impression I got was that pre-eminently CBCA gives credibility determination a scientific legitimation. This is clearly illustrated in a comment made by Hannah, a head of an asylum unit at an RPC, when I told her what I was working on: “Credibility determination, that is truly an interesting topic. Especially if you take into account how it has developed. In the past, we just did it any old way. Today it is done on the basis of scientific findings”, she said.³⁰ Nevertheless, I also found that to some extent knowledge of the reality criteria is incorporated into decision-makers’ professional-practical knowledge as my encounter with Theodor illustrates:

Laura::

Could you tell me what makes a case so clearly credible for you? […]

Theodor::

There are documents for that. If you want to, I can send them to you. I’m not so up to date (à jour) with that. Well, credible [accounts] are, for instance, nuanced, really well described, and mention minor matters. […] If it’s not just a smooth story, if there are stumbling blocks (Stolpersteine) and irrelevant details. For instance, if [the applicant] says that the light flared and suddenly the light went out. You know, things like that. […] And substance, particularly with events that had a traumatising effect. Not with regard to the traumatising event, but with what happened around it; that one focuses on a particular [aspect] of the man appearing, for instance: “I saw that he had sweat beads on his forehead”. You know, something special like that. But I would have to [look for] some [documents]. I can’t tell you just like that.³¹

In his description, Theodor brings up the narration of “minor matters”, “stumbling blocks” and the applicant mentioning some of the perpetrator’s physiological responses (the sweat beads on his forehead). Each of these issues bears resemblance with one of the nineteen reality criteria. Thus, the mentioning of “minor matters” fits with the reality criterion of “superfluous details” and the “stumbling blocks” can be read as the reality criterion “unexpected complications during the incident”. As a further point, Theodor’s “sweat beads” reminded me of one of the training courses when the participants were told that the narration of perpetrators’ physical responses (like the sweat beads) formed part of the reality criterion “attribution of perpetrator’s mental state”. Theodor himself did not use the word “reality criteria” and did not make any explicit reference to CBCA. However, the documents he kept referring to were about CBCA and reality criteria. The way I interpret this quote, is, therefore, that Theodor, like many other decision-makers, has selectively internalised this knowledge of the reality criteria; not necessarily by memorising it, but possibly by using the documents on CBCA to assess the credibility of asylum claims when he was new to the job and had not acquired enough professional-practical knowledge to “simply” know whether a claim was credible or not and by learning from others, who had also been schooled in CBCA, in what credible accounts “looked like”. Theodor struggles to verbalise what exactly characterises credible stories. That is why he wants to show me the documents on CBCA because they explicitly describe this. However, it becomes apparent that for his day-to-day work, he does not need the documents. Despite looking for them on the SEM’s internal server for over ten minutes, he is unable to find them, indicating that in his daily practice he never, or at least only very rarely, needs to look them up. He already knows due to his practical experience and internalised knowledge what makes a story credible. Many other decision-makers, like Louis for example, defined credible accounts as creating a feeling as if one were in a film: “[…] if a story’s credible, it’s just a flood of words. Everything just figures. When you listen to them talk it’s just like being in a film. These stories, they really live”.³² Furthermore, credible stories were said to be told “straight from the heart” and that, therefore, in such ‘cases’ it was not necessary to ask many questions, because those stories “just came pouring out”. Hence, in the words of one official, all one had to do was to “lean back and listen to them talk”³³ (see also Pelosi 1996: 59).

By allowing decision-makers to intuitively know whether asylum claims are (probably) credible or not, such knowledge provides caseworkers with a kind of “felt certainty”, which is crucial in the light of the “known unknowns” introduced at the beginning of this chapter. Professional-practical knowledge helps decision-makers feel certain that they are taking the “right decision”. This becomes apparent in the following example in which caseworker Andrea—a caseworker who had at the time already been working at the SEM for a couple of years—has lost faith in her “feeling”:

Andrea and I are sitting together during a coffee break. She tells me that there’s soon going to be a training session on credibility assessment that she recommends me to attend. She tells me that she would really like to go, but that she’s not allowed to because only two people from each section can take part. She says she would have really liked to have gone, because she was going through a bit of a crisis at that time because she couldn’t really trust her intuition anymore: “Not so long ago I had this woman from Turkey”, she tells me. “She didn’t know anything and she barely spoke any Turkish. I was so sure that she wasn’t from Turkey. But then I asked for an ‘embassy report’ and it turned out that it was all true”. Andrea explains that this has really thrown her off balance, because she had been so sure about it not being true. If she hadn’t had this possibility for investigation she would have said it wasn’t credible. She tells me that, because of this, she currently feels so insecure about her assessments that the other day she told a colleague who had wanted her opinion on a ‘case’ because he thought he might be biased, to go and ask someone else for help.³⁴

For Andrea, no longer being able to trust her “feeling” was a problem, hindering her from carrying out her everyday credibility assessment tasks as she used to. She therefore hoped that she would soon regain confidence in her “intuition” again.

Producing On-File Facts: The Asylum Interview

Even though professional-practical knowledge plays a vital role in caseworkers’ decision-making, it does not appear in the final written decisions. Hence, if we were to solely analyse final written decisions, we would not learn much about the reasons for reaching a certain decision. What we would instead learn about are the justifications for the decision at stake (see Kelly 2012: 762; Miaz 2017: 327; Poertner 2018: 194). Thus, every decision a caseworker takes, must be justified in writing. There are two main formats for this. In the case of positive decisions, applicants are informed about the decision and what this means in terms of rights and obligations, but not about the “reasons” for the decision. These “reasons”, or rather justifications, are listed solely on the internal application form that goes into the applicant’s case file and might potentially be checked by the head of the asylum unit before the positive decision is sent out. With negative decisions, a letter is sent to the applicants informing them of the outcome of the decision, but also providing them with the decision’s legal reasoning. The part which outlines the legal arguments for the decision in these letters is always structured in the same way:

The considerations always begin (in the case of decisions that enter into the substance) with an introduction: “The decision of the SEM on your asylum application is based on the following considerations: Switzerland grants asylum to applicants if they make a persecution in the sense of Art. 3 Asylum Act at least credible (Art. 7 Asylum Act) and no grounds for exclusion exist”. The next set phrases state the legal content of Article 3 or 7 of the Swiss Asylum Act or both […]. The argumentative part consists commonly of a number of syllogisms – formal legal arguments – that have the structure of: (A) the legal norm (major premise) → (B) the specific facts of the case […] (minor premise) → the application of the legal norm on the specific case (consequence or legal subsumption). (Poertner 2018: 200–201)

The “specific facts of the case” Ephraim Poertner refers to are fragments of texts decision-makers can use to reason their decisions with as well as documents they can refer to, which is why I have opted to call them “on-file facts”. The previous parts of this chapter have brought to light some potential on-file facts: the LINGUA and embassy reports, country analysts’ answers to consultations and country of origin information reports. Furthermore, any material evidence asylum seekers hand in may also become an on-file fact. An observation I made in the SEM—similar to what Julia Dahlvik describes for the Austrian Federal Asylum Office (2018: 141)—is that material evidence handed in by asylum seekers is often met with suspicion and that the authenticity of such documents is frequently doubted. This does not necessarily mean that such material evidence no longer functions as an on-file fact, but rather that it is turned into a different kind of “fact”, namely one which attests the non-credibility of the applicant rather than what is stated on the documents themselves (see also Jubany 2017: 166). The most important on-file facts, however, are asylum seekers’ statements as they are recorded in writing in the minutes of asylum interviews (see also Jubany 2017: 134). In the SEM, during the first short asylum interview at the RPCs, it is the decision-makers themselves who write the minutes on a standardised form at their disposal for this purpose. During the second (and potential third) longer asylum interviews, the minutes are written by minute-takers who are employed by the hour for their work and are often university students. At the end of the interviews, asylum seekers are requested to sign each page of the minutes—after they have been read back to them by the interpreters—to confirm the veracity of the recorded statements. Through this, the recorded statements become authoritative facts (Dahlvik 2018: 133), enabling the justification of final decisions. That is why decision-makers are very reluctant to question the veracity of such recorded facts. For example, Mauro, deputy head of an asylum unit at the headquarters, explained to me that, of course, sometimes when asylum seekers complained that something had not been correctly translated in the first interview and one could see from the minutes that there really were communication problems, then once could not use this against the asylum seekers. But, he added,

on the other hand, we have to be really careful when asylum seekers claim things like that, we cannot really accept that. We say: “We have the written minutes, we translated everything back to you, you have signed the minutes so now they are legally valid (rechtsgültig) and can be used”. Because if we start questioning everything then we might as well just stop.³⁵

Mauro’s statement shows that the authoritative character of the minutes is vital for decision-making. Without such “facts”, turning uncertain situations into decisional certainty would be impossible. But for minutes to be viable for decision-making they must meet certain expectations. This is one of the reasons why decision-makers prefer interviewing asylum seekers themselves rather than relying on interviews conducted by “poolies” or other caseworkers. That way they can steer the interview better and ask questions that will produce the arguments they need for the final decision; this is what is called “goal-oriented questioning” (zielorientiertes Fragen). Many decision-makers, furthermore, explained to me that during the interviews they always had the decision in mind and, only when they thought they had enough arguments for reasoning, stopped the interview.

Writing about asylum procedures in different countries such as Canada, Germany, Spain, Sweden, the UK and the USA, scholars have argued that the focus of asylum interviews is on uncovering lies (Jubany 2017: 137), “checking for discrepancies” (Bohmer and Shuman 2008: 136), identifying weaknesses inherent in asylum stories (Jubany 2017: 135) and “searching for untruth” (Kelly 2012: 765).³⁶ Thus, decision-makers focus more on finding indicators of non-credibility than of credibility (see also Johannesson 2017: 12). This is something I also observed in the SEM and is a practice I have elsewhere opted to call “digging deep” (Affolter 2020; see also Affolter 2017: 155). Digging deep refers to the practice whereby decision-makers interrogate asylum seekers until they have enough arguments to reject an asylum claim on the basis of non-credibility, or are convinced that the applicant’s story is true “after all”. This is how asylum interviews are usually done, but in some cases decision-makers might also decide not to dig deep because they already know from professional experience that the asylum seeker is telling “the truth”. Samuel’s statement illustrates this practice of “digging deep”. Talking about how to properly conduct asylum interviews he explained: “And then you have to probe [the asylum seekers]. You can’t content yourself with an answer that doesn’t convince you. But then there might still be something to [what they have told you]. So you have to probe them until you’re either convinced that it’s true or that it isn’t.³⁷ Two distinct metaphors were used by decision-makers to describe what I have called “digging deep”: “It is like a funnel (Trichter)”,³⁸ one said and another one compared it to the “tightening of a noose (Zuziehen einer Schlinge)”.³⁹ The first metaphor seems to indicate that through this kind of questioning one gets closer and closer to the heart of the matter; “the truth” (or “non-truth”) of what happened.⁴⁰ The second metaphor fits with the prevalent “institutional mistrust” I encountered, with the assumption that asylum seekers can and will often lie, which is an issue I deal with in detail in Chapter 6.

In what follows, I now turn to how “digging deep” works in practice and how through “digging deep” on-file, facts are created in order to justify written decisions. I do so by showing on the basis of a specific example, how one such a viable on-file fact is generated in the asylum interview. The case concerns a man in his early-forties from Eritrea. The caseworker in charge, Bernard, who is an “old stager” working in one of the RPCs, rejected the man’s asylum claim on the grounds of “non-credibility”. The sole legal criterion Bernard used to justify his decision was that of “inherent contradictions”, which, as my research showed, is the criterion must commonly applied for reasoning negative credibility decisions. One of the on-file facts Bernard refers to in justifying his decision is this one:

Whilst in your free narrative you said that about 20 days to a month passed between the first time the authorities came to your house and the time the military searched your house (see file A9, p. 8), you later said that only two to three days had passed between the questioning by the authorities and the searching of the house. (see file A9, p. 22)⁴¹

But how was this particular on-file fact created? When Bernard brought me the applicant’s case file a few days prior to the interview, he told me that he thought his ‘case’ would probably lead to a negative decision (with temporary admission). He told me that he had already found a couple of contradictions in the minutes of the first short interview and, therefore, thought there was probably nothing to the applicant’s story. Because of this he planned on asking some “mean questions”—as he called them—in order to see whether they would lead to further contradictions in the second interview. On the day of the interview, Bernard, as usual, started the part about the applicant’s reasons for applying for asylum in the interview with an open question: “Ok, so now you can freely tell me about what happened to you personally in Eritrea and why you left Eritrea”.⁴² In his narrative, the asylum seeker mentioned the following event: “Two or three armed people came to my home. They asked me questions. They insulted me verbally. Then they beat me. I don’t remember what happened after that […]. They left us alone for roughly 20 days to a month. […] The soldiers then searched our house”.⁴³ Later on in the interview, Bernard began asking the asylum seeker “wh-”⁴⁴ and “yes or no questions”:

Q::

To confirm, just a quick question: If I’ve understood you correctly, the authorities came to your house twice. The first time you were interrogated and beat and the second time your house was searched. Is that correct?

A::

Yes. They knew I had contact with X. The government has spies everywhere.

Q::

How much time passed in-between these two events, roughly?

A::

A short time; about two or three days. They really wanted to know what X had said to me.

Q::

Can you name the date your house was searched and you left [your home town]?⁴⁵

Finally, at the end of the interview, Bernard confronted the applicant with contradictions:

Q::

You said today that you were left alone for about 20 days after the first interrogation by the authorities. Later you said that two or three days passed between the two interrogations. Which one is true?

A::

It was two or three days. If last time I said 20 days I was referring to the time span when I left [my home town]. There were so many problems. That’s why I can’t remember everything too clearly.⁴⁶

Bernard already had an idea what decision he was going to take before the interview. Thus, he already knew what “direction” his questions would go in, before even starting the interview. This is something I came across frequently. What makes decision-makers already have such preconceptions differs. Sometimes, as with Bernard, it is because they have found contradictions in the minutes of the first interview or because of a particular “feeling” when reading the minutes of the first interview. And sometimes it is related to what—from experience—they expect from applicants “belonging” to certain groups.

Another typical aspect the example brings to light is the questioning technique used to test credibility. It is common for decision-makers to start the part about applicants’ reasons for leaving their country and applying for asylum in the interviews with an open question such as “Why did you leave country XY and apply for asylum in Switzerland?”.⁴⁷ After that the decision-makers follow-up up with specific “wh-questions” and some yes or no questions. And, at the end of the interview, decision-makers usually confront asylum seekers with contradictions they have found in their story, which already counts as granting applicants the right to be heard (rechtliches Gehör gewähren). This technique is taught to all decision-makers in the initial training they receive. The open question at the beginning is intended to give asylum seekers the opportunity to tell their stories. At the same time, several decision-makers told me that this strategy of starting with an open question was useful because in their “free narrative” (freien Erzählung) asylum seekers tended to get tangled up in contradictions—“if the story was not true” (see also Jubany 2017: 136; Poertner 2018: 161–162). One purpose of the follow-up questions (the wh-questions in particular) then is to enable the decision-makers to collect all the necessary information for taking their decisions (e.g. who exactly the persecutors were and what might have been motives for persecution). Another purpose of these questions is to see whether asylum seekers can talk in detail about certain events they are asked about (e.g. “please tell me in detail about the daily routine in prison”) or to generate answers the decision-makers can then compare with “facts” they can look up (e.g. “what was the name of your church that was bombed?”). Both these things—depending on whether asylum seekers manage to answer them adequately or not—serve as indicators of credibility or non-credibility; if they are found as non-credible, the corresponding criteria would be “unfoundedness” and “contradiction to facts”. Finally, as Bernard’s example shows, these questions allow for comparisons.⁴⁸ Hence, in order to “be able to” reason non-credibility decisions on the basis of contradictions, decision-makers need on-file facts that they can compare with. Three possibilities for comparison are created through the asylum procedure. Decision-makers can compare asylum seekers’ recorded statements from the first interview with those from the second (and possibly third) interview. They can compare the statements of people who share certain experiences, such as siblings or spouses, for example, and they can make comparisons between statements from the one and the same interview, as Bernard did (see also Dahlvik 2018: 144; Scheffer 2001: 160–165; 2003: 438–443).

Writing Asylum Decisions: The Final Creation of Legal Facts

If interviews are “done well”, writing asylum decisions is usually not very difficult anymore I was often told by decision-makers, as exemplified by Ralph’s statement: “If the interview and your preparation work was good, then the decision itself does not require so much effort. I mean, then it’s just committing to paper what you’ve found out. […] The most elaborate and time-consuming part happens before. By the time you write the decision, you’ve already made up your mind” (see also Kelly 2012: 762).⁴⁹ Yet, occasionally, even after having carried out the asylum interview, decision-makers are still unsure how to decide. I never observed this happening in practice during my fieldwork, but several caseworkers told me that in such cases they usually just started writing a decision to see if they could find enough arguments for it and, if not, they would try taking a different type of decision until they found one that worked (see also Poertner 2018: 194). Thus, as Jonathan Miaz argues, “in sum, the civil servants take a certain decision because they have the arguments for justifying it” (cited and translated by Poertner 2018: 196; see Miaz 2017: 327).

Asylum decisions consist of two main parts. The first part describes the “facts of the case” (Sachverhalt) and, in the second part, the legal justifications for taking a particular decision are outlined. All decision-makers I observed writing decisions kept going back and forth between writing the two parts, adding bits and pieces that they had found from reading through the documents in the case file and adapting the first part which describes the “facts of the case” so that it would fit the reasoning part. This is important because, in the end, the first part should only indicate aspects that are then also mentioned in the legal justifications part. Ephraim Poertner fittingly calls this process “decision-editing” rather than “decision-making” (2018: 194). The example below shows how Manuela, a historian who, when I met her, had been working at the SEM for just over two years, struggles but finally succeeds in finding the necessary on-file facts in the minutes for justifying her decisions:

I am sitting next to Manuela at her desk. She is writing a decision for a woman from Sri Lanka. Manuela tells me that for her it is clear what the decision is going to be. She will not grant the woman asylum, but temporary admission. She says that the ‘case’ is clearly not credible; the woman’s statements completely unfounded. However, she explains that upon every question the applicant added some more information, which makes it difficult for her to take a negative decision solely on the basis of “unfounded-ness”. Manuela regrets that there aren’t any contradictions in the asylum seeker’s story, because this, she says, would have made reasoning the ‘case’ with non-credibility much easier. She tells me that she has also had a quick look at the applicant’s brother’s case file, just to see whether it confirms her feeling, which it does.

Manuela starts by summarising the “facts of the case”. Then she selects two boilerplates: one for Article 3 and one for Article 7. She starts working on the Article 7 argument, selecting the boilerplate for “unfoundedness”. For this, she then starts looking for on-file facts which show the “unfoundedness” of the applicant’s claims in the minutes of the asylum interviews. Every time she finds one, she makes a bullet point of it in the reasoning part of the decision and then goes back to the part on the “facts of the case” to make some changes. When looking for such text passages she discovers some contradictions between statements in the minutes from the applicant’s case file and those from the applicant’s brother’s. She makes a note of those contradictions and adds the boiler plate for “inherent contradictions” to the decision. She explains to me that this comparison is important because otherwise she would not have enough arguments for the decision. Other [caseworkers] might have already been satisfied with “unfoundedness”, she says, but she just didn’t feel secure enough about it. Because she has to grant the applicant the right to be heard on these contradictions if she wants to use them for her decision, she can’t finish the decision just yet. Thus, she sets the case file aside and starts working on something else.⁵⁰ (field notes)

What does this example show us? Although for Manuela it was clear from the beginning what the decision was going to be (even before she started writing it), she could, at first, not find sufficient on-file facts to reason her decision. Her professional-practical knowledge told her this story was “unfounded”; a credible story sounded different; it was much more detailed—she was sure about that. However, at the same time, Manuela struggled to find arguments for justifying, on the basis of specific examples from the minutes, that the applicant had been unable to provide any detailed information on what she had experienced. In this ‘case’, she found this particularly difficult because whenever she had asked the applicant about “details” (e.g. by asking her how she had received the job as a secretary to a LTTE general; how she had met this general; and why he had given her this job), the applicant had added new information, but this information still did not seem detailed enough to Manuela. However, she did not really know how to show this. In the end, Manuela managed to find some contradictions (her favourite non-credibility criterion as she told me) because she was able to use the brother’s case file for comparison. With the contradictions she discovered, her justification became complete. Manuela did not know what had “really happened” to this woman in Sri Lanka. She suspected that the applicant maybe had experienced problems in Sri Lanka due to being a single woman or maybe she had been forced to get married. But for Manuela it did not matter that she did not know this. Her duty was to achieve enough decisional certainty for producing a clear-cut, justifiable either/or decision. And that she had done.

Managing Uncertainty: The Importance of Credibility Determination

So far, this chapter has evidenced that professional-practical knowledge, country knowledge decision-makers themselves have acquired, expert knowledge and reports, the production of on-file facts in asylum interviews through the use of specific questioning techniques and the assembling of on-file facts with legal criteria in the process of writing decisions all enable asylum caseworkers to overcome the uncertainties inherent in asylum decision-making. This then allows them to take clear-cut either/or decisions that they feel comfortable with, in the light of the emotional burden asylum decision-making poses, and which for them also seem justifiable towards “the outside”, as I will show in more detail in Chapter 5. In this final part of the chapter, I want to argue that credibility determination in itself constitutes an important means for dealing with and overcoming uncertainty.

Because negative asylum decisions are registered with the same code regardless of whether they are taken on the basis of non-credibility or on the basis of asylum seekers being regarded as not eligible to refugee status or a combination of both, it is not possible to draw statistics on the frequency of these different decisions. However, all the decision-makers I spoke to were of the impression that the majority of negative decisions are based on non-credibility, which is also something that has been described for other asylum administrations in the Global North (see introduction to this book). In accord with this, the SEM online manual on asylum and return states that the majority of rejections are attributable to asylum seekers’ claims lacking credibility.⁵¹ The argument presented here by the SEM, therefore, at least implicitly, suggests that the reason for the majority of asylum seekers being refused refugee status is that most of them lie (see Affolter 2018). However, this seemingly tautological assumption is something I question. As this chapter has demonstrated, so-called “liars”, “lies” and elements of non-credibility are produced through the questioning techniques used in asylum interviews themselves, independent of asylum seekers’ motivations (see also Crawley 1999: 52; Sbriccoli and Jacoviello 2011: 184–185; Scheffer 2001, 2003).

One reason why the majority of asylum claims are rejected on the basis of non-credibility has to do with the “official” policy in the SEM to take negative decisions on the basis of Article 7 whenever possible. Or, at least, that seemed to be the case in most of the asylum units during my fieldwork, while some decision-makers from one of the RPCs told me that they had never heard of this policy. The reason that was commonly given to me for this policy was that Article 7 arguments were much more difficult to challenge successfully on appeal level by the asylum seekers (and their lawyers). Hence, the decision-makers claimed that if they argued on the basis of the applicant’s recorded statements in the minutes that there were contradictions in the narrative or that what the applicant had said contradicted “given facts” (Tatsachen) that was then very difficult to confound. The policy is, therefore, linked to fact creation and, as I will outline in the following, creating non-refutable facts for Article 7 decisions is often easier than for Article 3 decisions. At the same time, and in seeming contradiction to what I have just claimed, I argue that the “subjective quality” ascribed to credibility assessments by decision-makers additionally reinforces this policy. I observed in the SEM that having an Article 3 decision quashed by the Federal Administrative Court was often valuated as significantly worse than having a decision quashed by the court because of an “erroneous” credibility assessment. In the latter case, it was deemed expectable that in some cases the judges might “subjectively” evaluate an applicant’s credibility differently.

Basing negative decisions on Article 7 AsylA rather than on Article 3 AsylA is, however, not just an institutional policy. Most caseworkers I spoke to claimed that this was also their personal preference. I argue that there are two main reasons for this. The first reason is that uncertainties are more easily overcome with such decisions. Or, in other words, it is often easier to achieve decisional certainty for non-credibility decisions than for negative decisions based on non-eligibility to refugee status:

Testing the credibility is especially important if they [the asylum seekers] come from states that act in an arbitrary manner [willkürliche Staaten]. […] Or broadly speaking, the worse the situation in a country, the more we have to focus on the credibility of the claim, or the more we tend to argue on the basis of credibility. I guess we have to. Because in such countries even a minor political activity can quickly result in the person being persecuted.⁵²

For instance, a mafia story: is it relevant for asylum or not? […] Because […] the state [of origin] is not really capable of protection (schutzfähig). [Yet,] there is no real motive for asylum behind it. […] But if you just say, this is all not credible, then you kind of cover your back.⁵³

In their statements, Samuel and Daniel insinuate that often as a decision-maker one has no way of knowing whether an applicant might be in danger of future persecution in their “country of origin” or not—anything could in some countries potentially lead to someone being persecuted. In contrast, for the reasons presented in this chapter, for them there is a way of sufficiently knowing whether an asylum seeker’s claims are credible or not. The second reason why decision-makers prefer rejecting asylum claims on the basis of non-credibility rather than on non-eligibility to refugee status is because it is emotionally easier. One caseworker, for instance, told me that it sometimes felt so cynical to her to say to someone from Syria, for example: “You have no reason to be afraid” of going back to Syria. But she felt that pointing out the contradictions in asylum seekers’ statements and raising doubt about a whole story instead was easier.⁵⁴ Another decision-maker, Helen, too expressed this in an even more explicit way: “But I can also tell you why [I prefer arguing negative decisions on the basis of non-credibility]. It’s for my conscience. If someone tells you rubbish [dir einen Stuss erzählt], then you don’t have such a guilty conscience”.⁵⁵ Helen and Patricia’s statements indicate how, through reasoning with Article 7, the responsibility for the outcome of the decision is shifted to the asylum seekers: it is their fault for not telling “the truth”.⁵⁶ Thereby, the emotional burden of taking such life-changing decisions is lessened.

Concluding Remarks

Decision-makers are requested to reach clear-cut either/or decisions. Thus, they must classify asylum seekers into one of four categories: refugee with asylum, refugee with temporary admission, non-refugee with temporary admission and non-refugee without temporary admission. These classifications have major impacts on asylum seekers’ lives since they lead to different rights and obligations. Not only do they have an impact on whether a person is legally allowed to reside in Switzerland or not, they also affect whether a person has the right to immediately apply for family reunification or whether they must first wait for at least three years before they can apply for it. Hence, if asylum seekers’ stories are classified as non-credible and, due to this, the applicants are granted temporary admission rather than asylum, this means that they can only apply for their spouses and unmarried children under the age of eighteen to be granted temporary admission after three years, and only if they do not depend on social welfare and are, thus, able to provide for their families by themselves.⁵⁷ For recognised refugees who have been granted asylum, on the other hand, there are no such restrictions.

This chapter has shown how decision-makers go about reaching such clear-cut decisions and how, in order to do so, they try to overcome the uncertainties inherent in asylum decision-making. Law requires clear-cut categorisations. As such, it constitutes a fundamental structural condition of bureaucratic decision-making. The chapter has brought to light how this structural condition shapes SEM caseworkers’ practices. Furthermore, it has shown how through the classification into clear-cut legal categories, in the process of which ambiguities and doubts are reduced and often become hidden from sight, new legal facts and “truths” are created. And it has pointed to the crucial role intuitive and incorporated knowledge plays in decision-making. It helps decision-makers acquire enough certainty for reaching decisions in a twofold way. On the one hand, decision-makers very much trust their intuitive knowledge, gaining a sense of “felt security” from it. On the other hand, by guiding decision-makers’ actions in dealing with case files, conducting asylum interviews and writing decisions, it also plays an essential role in overcoming uncertainties through the production of legal facts.

This knowledge, which lies in “the doing” of actions itself (see Dahlvik 2018: 57), constitutes part of decision-makers’ institutional habitus. But not only is the institutional habitus constituted in this way by decision-makers’ everyday practices, it is also constitutive of the latter, as this chapter has shown. By creating the legal “truths” decision-makers intuitively set out to look for through their everyday practice, the institutional habitus is continuously reaffirmed. However, it is important to note that this self-sustaining production of “truths” is not something that is (for the most part) carried out consciously and mean-spiritedly, but should rather be understood as the workings of the institutional habitus. Nevertheless, decision-makers’ practices are, of course, not structured in a deterministic way (see also Hitchings 2012). They are also—and must to some extent always remain—creative; allowing decision-makers to deal with asylum applications on a case-by-case basis, dealing with the particular uncertainties as they arise from the individual ‘cases’ and situations (see also Bourdieu 1990: 55; Dahlvik 2018: 62; Shove and Pantzar 2007). Yet, what for decision-makers comes to constitute “normal”, acceptable and doable ways of dealing with and assessing ‘cases’ is shaped by what they know (and can and cannot know) as well as the organisational, legal and ideological structures they are embedded in. It is set by the limits of their institutional habitus (Wacquant 1992: 19).