Another dilemma with which caseworkers are confronted in everyday work is undecidability. This issue can be understood as the key dilemma of the procedure and one that is specific to the asylum procedure in contrast to other contexts of street-level bureaucracy. This chapter explores officials’ practices in dealing with this tension. Despite – or perhaps due to – extensive standardization, officials are regularly confronted with uncertainty. A fundamental problem of the asylum procedure is that there is rarely unambiguous evidence; claimants and officials often produce counterevidence against each other’s view. However, decisions are indispensable regardless of how much uncertainty is involved; “take the file [and] you should know what will come out in the end, yes, approximately know,” the superior told Sabine when she started to work at the FAO. To reach a decision that can be justified and legitimized, caseworkers depend on authoritative “facts.” After exploring officials’ practices of accessing and using information in processing asylum claims, I analyze how facts are socially constructed in everyday work and discuss the prominent and problematic role of credibility.Footnote 1

1 Information, Its Sources and Its Uses: Eliminating Uncertainty and the Social Construction of Facts

In the ideal-typical process of handling an asylum claim, as described in Chap. 3, the interview is followed by a phase in which caseworkers conduct investigations to find out more about the asylum claimant and her situation. This is the main phase of searching and finding “facts,” and it illustrates the uncertainty with which caseworkers are confronted in their everyday work. Although they have various opportunities to gather information on countries of origin and other case-specific aspects, the usual lack of unambiguous evidence makes uncertainty a constant companion. As Sabine explains, even an expert report can be ambiguous: “This carpal thing [bone] has grown together but not entirely, well, 18, minus, plus one [year]; then you can figure, what now, is he now a minor or not?” This caseworker complains about the uselessness of findings such as these for her work. To be able to reach a particular decision, she needs exact facts instead of vague findings. For the asylum procedure, for example, whether the claimant is still a minor is relevant; in this case, an X-ray of the carpal bone was used to determine the claimant’s age. According to Habermas (1996:187), “administration is the process of realising stated values in a world of contingent facts.” Because values are specified, administration is oriented toward facts, some concrete or historical and some probabilistic. Answering these sorts of questions implies an investigative turn of mind, and doing so efficiently generally requires a division of labor and hierarchical control — in short, bureaucracy (ibid).

The prevalent lack of evidence in the asylum procedure makes the argumentation difficult for both sides, claimants and officials. Although most asylum claimants do not carry documents or other objects, they can sometimes provide certain evidence in the form of photographs, letters or newspaper clippings. As we will see, by contrast, public officials utilize a variety of opportunities to obtain additional “facts” and therefore (counter-)evidence. Caseworkers’ dependence on information that can be used to “objectively” decide a claim leads to practices of establishing past facts or proving a future risk that are “processes of actively constructing, rather than passively discovering, knowledge” (Sweeney 2009:705). In his seminal work on bureaucracy, Downs stressed how the biases of individual officials affect the search process. An official’s “perception apparatus will partially screen out data adverse to his interests and magnify those favoring his interests” (Downs 1967:180). In other words, “the risk is their own presupposition that will influence their fact-finding” (Thomas 2011:165).

How do caseworkers gain information about a specific case? First-hand information is necessarily provided by the asylum claimant in the interview. Additional information regarding the social, economic, political and medical conditions in a specific country is provided by the COI Unit. Additionally, so-called fact-finding missions are conducted to collect “facts” about the actual situation in a specific country (Tiwald 2010). Furthermore, the FAO can commission reports by independent experts on the physical and psychological condition of asylum claimants. Data provided by these two sources – the COI Unit and experts – are generally considered to be objective facts and, as we will see, often have more weight attached to them than the claimant’s own “subjective” account.

In processing an asylum claim, caseworkers need not only content-related information but also legal-procedural information. Since each case has or seems to have certain characteristics that make it similar to a previous case, officials often rely on precedents for orientation regarding how to handle a case. Earlier decisions issued by the Agency, the Asylum Court or the European Court of Human Rights represent guidelines when deciding on a case at hand with similar features. Moreover, relevant information, including all asylum decisions, is stored on an internal server with personal folders as well as “public” folders, which are accessible to all officials via the intranet. During my observations, for example, an official tells a colleague that she can look at a former decision of his on a similar case in a specific folder because she never had a case such as this before and thus does not know how to handle it. This practice illustrates how the organization facilitates and ensures reproduction.

In addition to these sources, which are controlled and authorized by the organization (except for the independent expert reports), caseworkers draw on more informal and uncontrollable sources of information. One such unauthorized source of information takes the form of officials’ personal networks of informants. As Sabine explains, she sometimes conducts “private research” or receives certain pieces of information from a friend who works at the police. These informal channels of acquiring information are only available to the official because of her personal contacts. Although the obtained information might influence her decision regarding an asylum claim, the written notification must be based on official, authorized sources.

Furthermore, the Internet represents an important source for decision-making officials that cannot be controlled by the organization but that allows for quoting – more or less – legitimate sources. Referring to the “googling judge,” Byrne (2015) notes the need to consider the effect of decision makers’ cyberactivity. Similar to other structural dimensions, information technology also restricts and enables action and organization. The use of technology can be seen as the result of structuration processes in which technology and organization interact in a specific context. With reference to Giddens’s duality of structure, Orlikowsi (1992) formulates the thesis of the “duality of technology,” implying that technology is not only socially constituted but also plays a constitutive role in the reproduction of structures. Organizations can be understood as the medium and the result of the development of technologies; they simultaneously promote the development of technologies, which in turn encourages the development, expansion and power of organizations in society. For example, the introduction and development of the electronic file in the asylum procedure can be understood both as a product of organizing and as organizing social practices. Byrne (2015) argues that using new media and electronic evidence as a source for decision-making has led to “decreased protection for some,” especially because “decision makers are disinclined, or insufficiently trained, to assess” this kind of evidence.

As already mentioned, caseworkers particularly rely on information from the COI Unit. But who ultimately defines what information counts as a fact? When officials search for information on the current situation in a country, they can direct their questions to the COI Unit, such as “Are the following medications available to asylum claimants in Greece?” or “Does party XY have a seat in Tiflis?” However, as one official notes, regarding certain issues, the way a certain question is phrased will influence the answer one will receive from the COI Unit. With this knowledge, caseworkers can, at least sometimes, influence the outcome of the investigation and thereby indirectly gain definatory power over what counts a fact. By employing this strategy, the caseworker gains definatory power because the COI Unit’s responses are usually taken as plain facts and can thus be used to justify a decision. As Downs (1967:180) notes, “[I]n formulating alternative actions, each caseworker will tend to give undue precedent to alternatives most favorable to his interests, and to those about which adequate consensus can most easily be established.”

In addition, the COI Unit works with informants on site (Verbindungsbeamte) to obtain case-specific information. For example, to determine whether there really was a tailor’s shop beside the church in a certain village or whether the asylum claimant’s grandfather really was a member of the military, the informant is ordered to go check places and houses and to interrogate alleged relatives or acquaintances of the asylum claimant concerned.

So then we played it over the informant, that he went there and questioned the people and asked, “Hey, was there once a tailor’s shop at this place?” It’s supposed to be the, I don’t know, Heratstreet 27, let’s say. Well then, of course, when the research from the COI Unit gives the answer and says, listen, there is a field or there is a church and there has never been a tailor’s shop in the last 20 years, well, then I’m terribly sorry, no? (Sabine).

The official’s quotation highlights the importance of these informants in defining the facts; the decision maker explains that she has no reason to believe the asylum claimant when the informant says otherwise. However, caseworkers can hardly monitor the informants’ work methods. In this respect, Roland expresses his discontent with his current informants in a certain country, mentioning a case in which he was happy that he still had an old colleague in place on whom he could count: “The one we have now, well, he also makes an effort, but... I don’t know. But, he can’t reach Berger* [the former informant].”

Although Sabine admits that “the COI Unit can also be wrong,” in everyday practice, there do not seem to be real alternatives to believing the information provided by this department. The caseworker also believes that the department has more opportunities to obtain the necessary information. “I think they have liaison officers ... infiltrated ones who are actually more likely to get at information than if I call the Afghan embassy, right?”

The analysis reveals that numerous actors are involved in constructing what eventually counts as a fact in the asylum procedure. The information that is provided can be influenced not only by the experts of the COI Unit and their informants on site but also by the official, who can ask certain questions and omit others. However, there are even more actors involved, including interpreters and independent experts. The different types of external expertise also allow for a delegation of responsibility on the part of the caseworkers regarding the definition of what is a fact.

1.1 Working with Experts

To decide upon an application in the asylum procedure, caseworkers largely depend on knowledge from “outside” the institution, and interpreters represent one such source. In Sect. 4.3, interpreters were discussed as representing a valuable resource for officials in gaining additional information. They often do more than “just” translate. Due to their personal background and experience, many interpreters are regarded as knowledgeable concerning local circumstances, such as geography or customs. While it is not the rule, interpreters are sometimes also commissioned as experts to produce reports on specific topics. This section and the one that follows explore the role of experts and their reports in the asylum procedure.

Commissioned experts represent a key group of informants for decision makers. Similar to officials’ relation to interpreters, the power relations between officials and experts are not always obvious. Vis-à-vis the authority, interpreters and experts have several things in common: both are supposed to work independently and neutrally, and officials have some leeway regarding which interpreter and which expert to commission for a specific “case.” The issue of power and control in the relation between caseworker and expert is complicated by the dilemma in which the agents have “to defer to, yet exert a degree of control over, the experts” (Redmayne 2001:1). The same is true for caseworkers’ relation to interpreters. While officials have the power to choose which expert or interpreter to commission, at the same time, caseworkers depend on them to a certain degree; without an interpreter, the interview cannot take place, and without an expert report, caseworkers often cannot substantiate their decisions.

In addition to the information provided by the COI Unit, expert reports represent another source of legitimate information for the establishment of facts. Examples of these can include medical reports that give insight into asylum claimants’ scars, psychological reports on claimants’ health attesting to depression or post-traumatic stress syndrome, or linguistic reports to determine a claimant’s country of origin. Similar to the situation with interpreters, according to Austrian procedural law (article 52 AVG), the agency has to appoint court-approved official experts registered on an official list; non-official experts should only be commissioned in exceptional cases. The requirements for becoming a sworn, court-certified expert include not only an examination but also technical knowledge, work experience, third-party insurance, trustworthiness, and other elements (article 2 SDG). The fact that experts are legally obliged to have insurance hints at the conflict potential involved in experts’ work. In the following, we will observe that decision-making caseworkers also mention trustworthiness and professionalism as important factors in their relation with experts. While the Austrian association of court-certified experts stresses that its members have an excellent reputation and act correctly, thoroughly, objectively and independently, practice has shown that this is not always the case. Scholars, especially in the medical and psychological disciplines (Korzilius and Rabbata 2004, Hofmann et al. 2014 for the German context), have drawn attention to serious shortcomings concerning expert reports in the asylum procedure. Such deficiencies can concern an insufficient consideration of the findings, ignorance of the state of the art as well as incomplete, incomprehensible or incorrect conclusions (Schumacher et al. 2012).

The analysis of an interview with one of the FAO officials reveals three main aspects of the relation between official and expert, which are comparable to those between the official and the interpreter: the role that personal contact with the expert can play and the importance of informal requirements; trust-building and ensuring professionalism as vital parts of relationship work; and the contribution of these different elements to officials’ distinction between good and bad experts.

Sabine’s account emphasizes the role of the personal contact with the expert she will appoint for a report. Although there is an official list of certified experts, she is “always looking for new doctors,” pointing out that she will go to see them in their offices. The official explains that she went to see a doctor to ask him whether he would write reports for the FAO “because he has the qualifications,” mentioning on the side that her neighbor works as the doctor’s receptionist. The latter fact, a link to the official’s private life, might also influence the relation between the caseworker and the expert. Why is it important for her to see the doctor and to talk to him face-to-face, thereby establishing a personal relation to the expert? The personal contact that emerges from this special recruiting measure modifies the relation between the orderer and the supplier of the report; at the least, it is likely to facilitate communication and collaboration between the two. By knowing the expert personally, she can learn about his (professional, political and other) orientation or worldview. The analysis suggests that she is not the only one who finds it important to be on a similar wavelength with the expert; she explains that certain caseworkers have good contact with specific doctors. She seems to be satisfied with her choice of the new medical expert and his work, noting that “we’re doing quite well with him.”

This statement implies that there are other experts with whom cooperation does not fulfill the agency’s or the officials’ expectations. The agency has its stock of doctors that it appoints regularly because the agency has had good experiences with them. By contrast, every caseworker seems to have certain experts with whom they are “not able to work” for different reasons (Sabine). Although she does not further explain why caseworkers have a dislike for certain experts – except that “they simply have objections” – the reasons may be the experts’ working style or their personality. Alternatively, the dislike may be because the official’s expectations regarding the report were not fulfilled. The official explains that in addition to the necessary qualification, only experience in working together will demonstrate the quality of an expert. She stresses that the expert should take her work seriously, producing reports that are useful for the decision-making process and not preparing biased reports. In addition, by providing a negative example, the official demonstrates that she finds it important that the expert be respectful and empathetic toward asylum claimants and their situations. Interestingly, she thinks it is better if the expert is physically located near the FAO. While she argues that it is better to keep travel distances for asylum claimants short, this placement might also be practical for caseworkers in that the expert is more or less “seizeable,” as in the example above. In addition to these informal requirements, the law is the primary force that prescribes the tasks and duties of experts along with the Austrian general association of experts, which defines professional standards, such as general rules of conduct, behavior when making a report (especially when based on a court mandate), and behavior toward other experts.

As with interpreters, quality and professionalism represent another main aspect in the relation between the caseworker and the expert. Sabine recounts a phone call in which the expert told her something similar to the following: “Look, Ms. Nefka, I don’t benefit if I write something that is not true because I have to justify myself before the court.” With this statement, the caseworker seems to want to convince the FAO official that the person is a sincere expert who takes his job seriously and is aware of the possible legal consequences of a flawed report. In addition to the mentioned formal framework of professionalism, there are other informal components at play in the relation between official and expert, such as trust and reliability. As the caseworker highlights, a good expert, in the medical field in this case, “has to be a doctor of trust too,” explaining that she would not choose an unknown expert for a medical report. Trust building can thus also be seen as an aim of the expert’s statement in the above phone call. In addition, the social status of the expert seems to contribute to his trustworthiness. In the course of Sabine’s account, an expert receives a variety of different titles, such as doctor, university lecturer, professor, and court-certified expert. He is regarded as being in a prestigious position and possessing a profound education approved by the court. As such, he is perceived to be competent and trustworthy.

In this context, it is interesting that the German Institute for Expert Assessment, advertising for quality assurance measures and special training, promotes the idea that “trust is good, qualified is better” (Institut für Sachverständigenwesen 2011). Although this statement implies that trust is not sufficient, it still indicates that trust is an important component in the relationship between orderer and supplier. The fact that power is a relevant issue in this relationship is highlighted by Möllering (2005): trust is necessarily connected to control in the sense that there is a duality, which “entails that trust and control each assume the existence of the other, refer to each other and create each other” (Möllering 2005:283). This observation underlines the complexity of the relation between the official and the expert, which is similar to that between the official and the interpreter.

Reliability seems to be another characteristic of a good expert, especially with regard to the deadlines given by the FAO. Stephan mentions that he has been waiting for an expert report for more than a year. “But not for much longer,” he adds, since he has set a final deadline for the expert, and if that expires, he will process the application without this report. Making use of his discretionary power, he tries to escape this situation of dependency; as long as one expert has already been commissioned, another one cannot be commissioned for the same task. Although he explains that he has not received an answer yet “because nobody dares to go there [to a particular region],”Footnote 2 he does not seem to believe that this dangerous situation could be a reason to grant the claimant asylum. Instead, the caseworker seems to be bothered by his loss of control; the official aims at regaining power in order to be able to close the pending case and thereby produce another “number.” The summary of an interview excerpt also illustrates that experiences of cooperation with an expert will lead an official to judge that expert’s reliability and consequently decide whether to recommission her:

The official wants an asylum claimant to go to a certain doctor for an expert report. The caseworker goes on holiday; when she comes back, her assistant tells her that their superior talked to the head of the department about this case, and the head found that the traveling distance for the asylum claimant was too great and that they would send her to another doctor. The official says, “Nobody knows him; our colleagues in XY [other branch] took him once or twice.” Now, five months later, the report still has not arrived. She continues, “And yesterday I said to the head, ‘When I say, send her to Dr. Diestel* – we’d have had the report within four weeks – then I want this to be done’” (Sabine).

This excerpt reveals how the caseworker positions herself within the power structures by arguing that her decision was justified. Additionally, she notes that to further the aims of the organization, it makes sense to commission an expert with whom she has already had good experiences despite the greater travel distance for the claimant. Both examples demonstrate that the question of control and its loss is at play in the officials’ relations with the experts; both officials insist on a powerful position, aiming to regain their room for maneuver. The fact that caseworkers largely have the ability to choose which expert they will ask for a report suggests that it makes a difference which expert is appointed.

1.2 The Power of the Expert Report

In addition to the interview transcript, expert reports can represent a vital source of information in the decision-making process. These reports are documents, understood as text-based discourses and forms of knowledge, that emphasize the importance of the written word in the administration of asylum applications. The law, and with it legal procedures, depends on external knowledge. Although an expert report cannot solve legal questions, it can facilitate and consolidate decisions by “helping to fill interpretive gaps” (Wolff 1995:7).

To illustrate the power of the written word in the asylum procedure, I will use an example based on a scene reported by Sabine. An asylum claimant who needs medical treatment because of a tumor is to be deported to Poland since, according to the Dublin Regulation, Austria is not responsible for the case. The expert report suggests that the required treatment is also available in Poland. In this context, the caseworker recounts a situation at the medical expert’s office that the expert reported to her, in which the claimant’s companion threatened the expert verbally. According to the expert, Sabine tells me, the companion said to the doctor, “But he hopefully knows that he’s supposed to write something appropriate into this report.” What something “appropriate,” that is, prudent or useful in the context of the procedure, means is self-explanatory: a report that makes an expulsion to Poland difficult to justify, such as a conclusion by the expert implying that the claimant’s illness cannot be treated in Poland and he therefore needs to be treated in Austria, allowing him to stay. This scene illustrates that the asylum claimant and/or his companion are aware of the power of the written word in the procedure, particularly if it is expressed by a powerful person such as the expert.

The official’s account makes explicit the importance of an expert report in the asylum procedure. Her decision to reject the application, implying a deportation, is manifestly determined by the expert’s conclusion that the claimant’s illness can also be treated in Poland. In her description of her face-to-face interaction with the asylum claimant, the official repeatedly challenges the claimant’s assertion with that of the expert. This confrontation is most evident when she says to the claimant during the asylum interview, “Well, it’s your word against that of the doctor.” Her statement implies that she has to balance the two opposing assertions against each other. She also uses the phrase “very well” (sehr wohl) several times in the sense of “of course.” For example, in contrast to what the claimant said (that he cannot go back to Poland), according to the expert, this is “very well” possible. This statement suggests that the caseworker has a certain tendency regarding whom she believes. The importance of the written word in the asylum administration is also evident in another remark in which the caseworker refers to a specific event she deems relevant to the procedure: “Of course, I made a file memorandum.” Every additional piece of information that is regarded as relevant is written down to ensure that all actors potentially involved in the procedure, such as a judge at the appellate court, are informed as soon as they read the file.

Another example of the higher value and credibility attributed to the written word in comparison to the claimant’s assertions is illustrated by an interview transcript. According to the transcript, the claimant says, “I also have some problems with my liver, but I don’t know if it is stated in the report. I already mentioned it to the doctor” (memo 0624). The official answers, “It does not appear from the report that you have liver problems. It can be assumed that you do not suffer from any liver problems” (ibid). The official thus openly demonstrates that for her, the medical report – the expert’s written word – is more trustworthy and more relevant than the claimant’s assertions. These examples illustrate that documents can be understood as active agents in episodes of social interaction; they can be recruited, manipulated, defied or hidden according to the situation (Prior 2004:358).

The findings demonstrate that the spoken word is deprived of power in this administrative procedure; it only gains relevance in an entextualized form. In other words, “the essentially problematic character of the applicant’s claim is addressed and resolved by reliance on the essentially unproblematic character of official documents” (Zimmerman 1976:339). However, the system from which a particular document originates or who issued it is relevant. Expert interviews are treated differently than documents belonging to the asylum claimant, which are often treated with skepticism, checked for genuineness or evaluated as irrelevant and set aside. At the FAO, claimants’ documents, such as certificates of birth or marriage or driving licenses, are often checked for forgery.

By contrast, the problem attached to expert reports and official documents is that they tend to be treated as objective and “true” representations of reality, often gaining authority beyond the account of the affected person. However, what is considered reality in a concrete situation is not determined by facts, which exist beyond their representation. Instead, facticity is precisely the result of a particular form of representation and is embodied in this representation (Wolff 1995:68). For the officials, expert reports function as support for decision making in concrete cases. For the reports to be acceptable, the statements made by the expert must be regarded as undistorted depictions of reality (ibid:65). In the asylum procedure, as in other legal procedures, alternative versions of reality are usually called into play, and parties argue for or against them; eventually, they must be set against each other by the decision maker. Hence, it is vital to consider that the production of information is not a process “of filtering out a ‘truth’ that exists out there but that has been contaminated by selectivity or bias; it is fundamentally and inevitably interpretive by its very nature” (Gibb and Good 2013:322). In addition, with regard to the key issue of credibility, Good (2004a, 2004b) emphasizes that social science and legal thought differ in their forms of reasoning as well as in their understandings concerning the nature of “fact” and “truth.”

2 From Assessing Credibility to Constructing Incredibility

While according to the UNHCR Handbook, the burden of proof is generally upon the claimant according to the UNHCR Handbook, there may be circumstances in which the decision maker is required to “use all the means at his disposal to produce the necessary evidence in support of the application” (UNHCR 2011:para.196). However, if there are statements that are not easy to prove, the applicant should be given the benefit of the doubt if her account appears to be credible. Hence, the UNHCR regards credibility as an alternative to proof, not as a synonym for it, since “‘being credible’ is different both from ‘being proven’ and from ‘being true’” (Sweeney 2009:711). The search for facts is thus connected to the assessment of the credibility of a claimant’s account. Although credibility is not mentioned as a criterion in the UN Refugee Convention, many asylum applications are rejected because of doubts regarding credibility (Sweeney 2009:701). Additionally, Kagan (2003:367) notes that “credibility assessment is often the single most important step in determining whether people seeking protection as refugees can be returned to countries where they say they are in danger of serious human rights violations.”

The Austrian Asylum Act states that asylum is to be granted to “a foreigner … if it is credible that he is threatened by persecution in the country of origin in the sense of … the Geneva Convention on Refugees.” Additionally, “the assessment of the credibility of asylum seekers’ assertions” is stated as one of the purposes of the COI Unit. Credibility assessments usually involve testing an account’s plausibility as well as its internal and external consistency, that is, its congruence with known facts (Weston 1998 in Sweeney 2009). Plausibility – the assessment of the likelihood of an event to occur in reality – “is commonly considered as a reliable verbal cue for truthfulness (Vrij 2008) and as such, has a significant influence on credibility judgements” (Nahari et al. 2010). However, what remains unclear is “how internally consistent, how externally consistent, or how plausible the applicant’s story would need to be in order to be ‘credible’” (Sweeney 2009:701). Why and how is an individual supposed to “prove” credibility, and how do credibility findings and the outcome of the case relate?

Whether a claimant’s assertion is judged to be credible is often a decision based on uncertainty. An official expresses this uncertainty by asking a colleague whether she thinks that a certain assertion is credible. The caseworker explains the details of the “case” to her colleague, who then replies, “That’s nonsense; you can make him incredible” (ob. 2). “To make someone incredible” means to reach the conclusion that a claimant’s assertion is not credible – usually with the consequence that she will not be granted asylum. Credibility can be uncertain, and it can be intangible. Veronika explains that sometimes “you really feel that it’s not true, but you can’t catch him on the factual level because he just doesn’t have any contradictions; where you just have a sense of it and think to yourself, ‘How do I get him now?’” This account illustrates both the subjective dimension of dealing with asylum claims and the relation between credibility and facts. The official mentions that she has a “sense” and that she “feels” that what the claimant says is not true. At the same time, she does not have any evidence to prove otherwise.

Gabi reports that she “didn’t believe a word of her [the claimant], but then, you’re powerless!” (o. 0804) The caseworker regards herself as powerless because she perceives herself as not having a “choice” regarding the decision on this particular asylum application – not because of a lack of evidence this time but “because her [the claimant’s] brother got a positive decision with the same assertion in the first instance.” The caseworker was thus bound to stick to this decision despite not judging the claimant’s assertions to be credible. The official explains that there are cases “where you’re convinced that it’s not true, but you can’t prove it.” Mountz (2010) also observed that although bureaucrats make powerful decisions with important consequences to individuals’ lives, they sometimes feel powerless in the process of decision making.

When dealing with this context of uncertainty, caseworkers constantly search for inconsistencies or contradictions, a problem that is reinforced by the fact that these caseworkers tend to measure plausibility using their own standards. One official regards her work as “a little bit like detective work,” explaining that she usually makes notes during the interview that she then compares to the protocols of the claimant’s previous interviews (ob. 2). Such “detective work” can be seen as “an element that spices up a rather routine activity” (Dubois 2010).

Asylum claimants are expected to have knowledge regarding specific issues. They should have knowledge of general issues such as geography, political parties or religion, but they also require particular knowledge relating to certain events in their lives. The expectations concerning specific knowledge are most often related to credibility. Caseworkers tend to have certain expectations regarding what a person should know – partly in reference to their own standards – for an assertion to be credible. Stephan, for example, finds it suspicious if a claimant does not know specific places, distances between places, the language, the customs or the religion of the country from which she claims to come. Another colleague finds that “there are these typical points, for example, years, dates; if something really happened, then I know when that was” (ob. 2). Whereas an occurrence sometimes “comes out of the assertions and the behavior [of the claimant] consistently,” as Thomas mentions, other times, the non-occurrence of a claimed event seems to be obvious to officials. There are certain indications and signs of incredibility, which officials claim to identify. Veronika finds that “such [vague] answers are more than an indication that he didn’t experience it; because otherwise, he has to say something … even if I’m not so good verbally, I can say something.”

The knowledge that a claimant is expected to have is also tested in the asylum procedure to verify the correctness of the claimant’s assertions. An official explains a possible approach to verifying the provided information: “I ask the same question three times in the same interview, just differently phrased; you can also test like this” (ob. 2). For a certain period, Stephan mentions that there was a test for claimants from a specific country of origin in which oral and written language, as well as knowledge about the capital of that country, were tested. Such tests in the asylum procedure can be regarded as tools for “transforming undecidables into decidables” (Scheffer 2003, own translation).

The failure of a claimant to provide the expected information or to act in the past as the caseworker would have expected – since caseworkers tend to measure by their own standards – may lead to conclusions of incredibility. Acts or statements that make an assertion seem conspicuous or suspicious thus serve as indicators of incredibility. In addition, the alleged “mistakes” a claimant may make are weighted; they do not have the same value. “That he doesn’t know a date, that doesn’t count as much as when he makes a mistake by years … Also, it’s always conspicuous if the asylum claimants know the days by heart” (Stephan). The caseworker first explains that it makes an assertion more incredible if a person confuses years, whereas confounding days is regarded as less problematic; however, he then implies that it can even be conspicuous if a claimant does know an exact date. In addition, he finds that “time-related contradictions, of course, don’t count as much as logical contradictions.”

This inherent ambiguity – on the one hand, claimants are expected to know dates; on the other hand, it can be suspicious if they know those dates – is further illustrated by the following statement. “It also always depends whether it’s a single person or they are families or several persons connected; are there contradictions then or congruities in the respective accounts, statements?” (Stephan). According to the official, “It’s also conspicuous if they’re a hundred percent similar because one immediately figures out that it’s arranged because everyone has their own view a little bit different, like with the 3-D effect; two cameras can’t see the same thing.” For an assertion to be credible, officials expect that different persons’ accounts will resemble each other. At the same time, if they resemble each other too much, this is interpreted as an indicator of incredibility. Thus, convincing an official of the account’s credibility seems to require a sophisticated balancing act by the claimant.

In addition to contradictions, officials claim to identify lies in claimants’ accounts. However, often, “you really can’t assess it; does he lie to me or does he not lie to me?” Veronika states. This uncertainty often leads to “half-hearted decisions.” Whereas she stresses the prevalent uncertainty, Stephan claims that there are interviews “where you know the story is definitely a lie simply because you already know the country better than the asylum seeker who claims that he’s from there.” The caseworker directly relates a lack of knowledge to untruthfulness, which can have a major impact on the decision-making process. Borrowed stories, contradictions and omissions are used by decision makers to identify lies. According to Rousseau and Foxen (2006), the asylum interview is often constructed as a trap or a search for authenticity. In addition, the labeling of claimants as liars or bogus is a common practice both in the public sphere and in the asylum administration (Jubany 2017). In this study, asylum claimants are said to “produce fake tears” (Stephan) or to tell their children that they have to cry at a certain point in the interview (Roland). Stephan, for example, is convinced that Chechen asylum claimants only pretend that they cannot speak Russian in order to be given a Chechen interpreter. Thomas mentions that a claimant persistently maintained his assertion “although it was nonsense, that was obvious.” However, some caseworkers demonstrate understanding, such as Gabi, who accepts that claimants try different things to reach their aim, which she regards as “a cry for help.”

2.1 Credible Well-Founded Fear

A particular aspect of the assessment of credibility consists of determining whether a “well-founded fear” of persecution exists. Following article 1 of the Geneva Convention on Refugees as amended by the 1967 Protocol, the term “refugee” shall apply to any person

who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

The UNHCR states that in determining whether “well-founded fear” exists, both a subjective and an objective element must be taken into consideration. On the one hand, fear is understood as “a state of mind and a subjective condition” of the asylum claimant; on the other hand, this frame of mind must be supported by an objective situation (UNHCR 1992:para.38). Decision-making officials thus strive to examine whether the subjectively expressed fear is objectively “well-founded.” However, Douzinas and Warrington (1991) argue that the claim that “well-founded” fear of persecution, a requirement for asylum, can be rationalized through the shared understanding of their cause puts the victim in a “violent double bind.” Independently of how a claimant acts, it always seems to be wrong; the person is labeled either as a liar or as a performer who is too bad or too good.

Either he [the applicant] is in fear or he is not. If he is, he should be able to give facts and reasons for it which, as they belong to the genre of truth, should match up to the assessment of the judge. If they do not, the refugee is lying. If, on the other hand, he cannot give “objective” justifications for his fear the refugee is again lying. Similarly, when the refugee is inarticulate and cannot explain the “objective basis” of his fear, he is not in fear. But when he can do so, the immigration officer “formed the view that the Applicant, who appeared in good health, was alert and confident at the interview, was moving away from Uganda because a better life awaited him somewhere else and that this was not a genuine application for asylum” (2:949) (Douzinas and Warrington 1991:129-30).

The performance aspect has already been discussed in the previous chapter. By highlighting the importance of subjectivity in evaluating the performance, particularly in terms of what the claimant says (or does not say), the way in which caseworkers measure their own standards can be observed. One example is the abovementioned situation in which a claimant knows the exact date of certain events but not of other events, knowledge that would be crucial according to the official. The caseworker explains that such knowledge gaps raise his awareness concerning the person’s (or rather the assertion’s) credibility. Veronika regards this situation as an “indication that he hasn’t experienced it” if a claimant does not say anything to substantiate his assertion. By referring to herself, Veronika thinks that it must be possible to describe in detail an unpleasant situation one has actually experienced “because if I’m [imprisoned] somewhere for forty days, then I can recount my thoughts, how I felt.” Although it can be assumed that this comparison is only hypothetical, she also does not seem to consider possible traumas at this point. Later in the interview, Veronika demonstrates understanding for claimants who are traumatized or suffer from fear or inhibitions. Imagining how she would react in the situation mentioned by the claimant, she applies her personal standard. If the claimant does not reveal details about her experience in this situation, as Veronika would expect her to do if she had actually been in this situation, the caseworker interprets this as an indicator that she has not experienced it, Veronika explains.

As Blommaert (2001:442) notes, “general common-sense plausibility” implies that “certain arguments are qualified as unlikely on the basis of a general perception of what is possible and what is not.” In these situations, “there is no evidence offered of the impossibility of these facts, they just seem unlikely” (ibid). The above findings illustrate that plausibility represents the potentially most subjective of all grounds for credibility assessment (Sweeney 2009). Thus, it is vital that in assessing credibility, decision makers “also engage in much self-examination in order to interrogate the degree to which their own value judgments and life experiences influence their decisions” (Thomas 2011:165ff). In the context of other immigration agencies, it can also be observed that rather than being derived from laws or regulations, caseworkers’ criteria for screening individuals are based on their own categorizations, rules and values, which originate in stereotypes based on experiences and social prejudices (Jubany 2017). In the UK, asylum decision makers are therefore instructed “not to construct their own theories of how the applicant or others in the account ought to have behaved or to assess their behavior against what would be plausible in the UK” (Sweeney 2009:705).

Credibility assessments can thus constitute a tension between norms of subjective and objective decision making (Kagan 2003). Whereas subjective credibility assessments are highly personal and depend on the decision maker’s judgment, perceptions and dispositions, objective assessments involve standardized criteria and a more structured inquiry. As this study demonstrates, subjective assessments often lack an articulated logic and tend to be inconsistent from one decision maker to another; by contrast, objective assessments generally involve more specific and concrete explanations for decisions – such as the implementation of administrative and human rights norms in the asylum interview – and are easier for appellate bodies to review (ibid).

The problem of subjectivity and objectivity becomes particularly relevant when officials assess the existence of “well-founded fear.” Hathaway (1991:65) argues that “the concept of well-founded fear is rather inherently objective” and that “the subjective perception of risk must be consistent with available information on conditions in the state of origin.” By contrast, Noll (2005) notes that the Geneva Convention contains neither an “objective” nor a “subjective” element. While the Convention contains implicit procedural obligations, there are no explicit norms governing the asylum procedure. According to Noll, the linkages between fear and subjectivity, on the one hand, and between well-foundedness and objectivity, on the other hand lead to misperceptions and ungrounded conclusions. An objective element would imply a perception of facts or conditions “without distortion by personal feelings, prejudices, or interpretations” (ibid:144). However, the assessment of the well-foundedness of fear is necessarily based on personal interpretations of reality. Noll argues that the UNHCR Handbook (1992) blurs the dichotomy of objective and subjective; it provides no clear indications for decision makers, only a rule of thumb to “when in doubt, do more of the same, and call it credibility assessment” (Noll 2005:149). The author concludes that when a decision maker has decided that no additional evidence is necessary and attempts to decide the asylum claim, she has two possibilities: either endorse the claimant’s risk evaluation on the basis of a source credibility assessment (positive decision) or reject the claimant’s evaluation and replace it with her own evaluation – motivated not by a lack of general credibility but by its own terms (ibid:160).

As Kagan (2003:384) notes, “credibility assessment is extremely difficult because each credibility factor is subject to substantial caveats and requires significant caution.” The author identifies four pairs of positive and related negative credibility factors. A detailed and specific account from the asylum claimant is generally regarded as a positive factor for credibility as opposed to vagueness. The account must also be consistent, whereas contradictions represent a negative factor for credibility. In the assessment of credibility, time also plays an important role. A claimant is supposed to provide all “facts” at the earliest possible opportunity and not to delay the revelation of essential “facts.” In addition to plausibility, the claimant’s ability to reproduce her account at any time during the asylum procedure is regarded as another factor for credibility. However, inconsistencies are not only normal but also more likely to arise when the interviewee is, for example, traumatized. In addition, contradictions can be caused by rapid questioning or a quick change of subjects. It is therefore important that claimants are given sufficient time and opportunities to provide information (Dornboos 2005:121). In addition, decision makers should beware of too quickly equating minor inconsistencies with implausibility and a lack of credibility.

3 Concluding Thoughts on Deciding in Uncertainty

According to Ortmann (2003:138, own translation), one difficulty in deciding is that “we do not know enough; our capacity to process information is limited, and our preferences are unstable and inconsistent.” The situation of never knowing enough is of particular importance in processing asylum claims. Caseworkers are constantly searching for information; they arrange research and expert assessments in order to make conclusions regarding the credibility of the asylum claimant’s assertions. However, a decision-making official can ultimately never know enough and can hardly know every detail of the “true” concatenation of circumstances and contexts that led to the flight or fully evaluate and anticipate a possible future risk of persecution. The investigation of officials’ practices is of particular interest in such “crises,” that is, in situations that cannot be mastered by means of routinized patterns. Following Reckwitz (2005:255), “the ‘breaking’ and ‘shifting’ of social structures takes place in everyday crises of routines, in constellations of interpretive indeterminacy and of the inadequacy of knowledge with which the agent, carrying out a practice, is confronted in the face of a ‘situation.’” Although officials are constantly confronted by the undecidability of asylum claims, each situation requires a new strategy of dealing with that uncertainty.

Following Ortmann, deciding means the transformation of contingency into unambiguity. “What to do when the necessary transformation of contingency – the decision – is not doubtlessly substantiated in itself – and it is almost never? Then, doubts have to be suppressed, weak justifications have to become strong ones, missing ones have to become feigned ones” (Ortmann 1990:375). In the legitimation and justification of a decision regarding an asylum claim, these suppression and consolidation mechanisms play a crucial role, highlighting the constructed character of facts. Such a decision is rarely “doubtlessly substantiated in itself,” and missing or weak argumentation is strengthened through information from authorized sources such as the COI Unit or expert reports. These legitimate sources play a vital part in the construction and definition of a “fact.” These mechanisms of suppression and consolidation are related to the decision makers’ practices of ascertaining facts while being oriented toward norms. Caseworkers investigate only those facts that are norm-relevant and allow a decision that fits the “program” (Lautmann 2011:168).

The construction of facts departs from the assumption that objectification is possible. As Rousseau and Foxen (2006:515) note,

The interpretation of the refugee’s story in terms of conformity and deviance relies on expert (institutional) knowledge and on an expert experience that must appear to be founded on an objectification of truth and falsehood and that therefore assumes, from the outset, that such objectification is possible.

Data provided by tools such as databases are often perceived as “‘hard’ data, duly filtered and authoritatively approved, and somehow representing ‘objective’ information,” an impression that might be reinforced by the technological presentation of data (Noll 2005:145). However, any such information depends on the author’s judgment and might thus be as subjective as a claimant’s account. In this “game” of interpretation, definition and legitimation, organizations and their members are powerful players. As members of the organization, certain groups of actors – often, the decision makers – have the power to define “right” and “wrong” (Ortmann 2010:191). These issues emphasize the power asymmetry between the individual claimant and the caseworker as a member of the organization. Being such a member also means being socialized in the organization and adopting certain views, values and practices, such as practices of dealing with uncertainty. Categorization, one way of dealing with ambiguous situations, will be discussed in more detail in the following chapter. This chapter illustrated how information is made valid and legitimate in a context through the construction of facts, artifacts and (in)credibility. It also became evident that the different practices of officials’ “construction work” are closely intertwined.