Centre for Public Policy

Blog by Dr Dan Fisher, Research Associate at the Centre for Public Policy

Imagine you are a judge with a decision to make – get it wrong and you could return a person to face violence or even death.

Imagine you have a legal case to prepare – but funding arrangements have severely limited the amount of time you can spend with your client.

Imagine you are an appellant who has had their asylum claim rejected – you still suffer from anxiety and trauma yet you must now recount every step taken to reach this point.

This is the world of asylum appeals.

Asylum appeals are becoming an increasingly important mechanism for guaranteeing peoples’ rights. In the UK in 2023, for example, more than half of the decisions made by judges went in favour of appellants. Meaning that, in 53% of cases, judges believed that the Home Office had made erroneous asylum decisions (up from 29% in 2010).

Yet asylum appeals are notoriously difficult cases for judges to decide on. There is frequently limited evidence on which a person can rely – most of which can be easily falsified. Credible accounts of persecution are those with limited holes and where the appellant remembers key dates and details. Yet such clarity of recollection can also indicate a fabricated story.

Policy and practice recommendations

In the recently published book Inside Asylum Appeals: Access, Participation and Procedure in Europe, we have observed more than 850 asylum appeals in-person. Using this unique ‘up close’ form of research offers insights into the susceptibility of law when it is transferred from the written text on the page and applied in the messy realities of the courtroom and influenced by increasingly-punitive immigration policies.

The book contains three sets of policy and practice recommendations, which I invite you to read. These are not standard recommendations as we understand that each country’s context is different and that even the contexts between courts within the same country differ. Instead, they offer reflections on what we think works and we invite policymakers and legal practitioners to apply in their contexts.

The first set of recommendations considers the many challenges that appellants face in accessing quality legal representation and participating in the appeal itself. Key considerations include the need for judges to receive training on the effect of time and trauma on memory and the ability to recall facts.

The second set of recommendations centres on the effects of time on the appeal process and the ways in which time pressures affect communication within the hearing. Key considerations include establishing court cultures around adjournments such that judges can take sufficient breaks. We also suggest that sufficient time should be taken at the start of hearings to check that the appellant can understand the interpreter and to train those present on how to speak using the interpreter.

The third set considers bureaucratic mistakes that occur prior to the appeal and systemic biases in the process as a whole. We argue that there should be more communication between senior judges and senior decision-makers concerning the quality of initial asylum decisions that are being made. We also highlight the importance of body language in the court; warning against using body language as a means of testing credibility, and considering the importance of body language and empathy in order to establish trust with the appellant who is being asked to recount traumatic events.

The realities of the courtroom

In practice, courtrooms can be hot and stuffy; the courtroom atmosphere punctured by corridor noise and the presence of children. Courts have been modified to make use of all available space, removing the possibility for legal representatives to meet with their clients in private. Judges can be overworked and overburdened with the need to meet a set number of decisions – leading to poor forms of communication in the courtroom. Appellants can be mistrustful of an asylum determination system which may have already mistreated them and their claims. They may also not understand the courtroom procedure; leading to them not being able to present key aspects of their case which they have thus far not felt able to disclose.

The book concludes with a warning concerning the fragility of law within the context of asylum determination. Our analyses have illuminated what law looks like under the pressure; when it weakens and frays due to under-financing, increasing caseloads, backlogs and hostile immigration policies. Though the recommendations provide bottom-up advice for improving appeals in-situ, they also make clear the need for holistic change.

Author

Dr Dan Fisher, Research Associate, Centre for Public Policy, University of Glasgow.

^{Preview image courtesy of Dr Rebecca Rotter.}

^{Video: Perspectives from the UK, Germany, France and Belgium}

Hear the authors give perspective on the appeals process in the United Kingdom, Germany, France and Belgium. 

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Find out more

The book Inside Asylum Appeals: Access: Participation and Procedure in Europe was written by:

• Professor Nick Gill
• Dr Nicole Hoellerer
• Dr Jessica Hambly
• Dr Dan Fisher

Learn more on the publisher website.

First published: 5 December 2024