On Silence, Sexuality and Skeletons: Reconceptualizing Narrative in Asylum Hearings

Published date01 March 2011
Date01 March 2011
Subject MatterArticles
On Silence, Sexuality
and Skeletons:
Narrative in Asylum
Toni A.M. Johnson
University of Leicester, UK
This article considers the nature of silence in UK asylum cases involving lesbian and gay
claimants, asking whether the ambigu ous and textured quality of silence can be a
productive site of resistance, or whether the effect of silence perpetuates the
problematic conceptualization of the refugee as a subjugated actor whose voice is muted
within a hearing. The article discusses silence in light of the formal provisions of the
Refugee Convention and evidentiary necessities around proof of an objective/subjective
fear of persecution, questioning the impact silence has on the rendering of testimony and
whether it is detrimental to an asylum claim. The equivocal nature of silence imparts a
vulnerability to interpretation, rendering it subject to the imposition of unsolicited
meaning. Silence’s indeterminacy, it is suggested, should give pause to the court to
proceed in a mannerthat invokes caution around such inference.
asylum, formalism, formulism, narrative, restive silence, sexuality, silence, testimony
Academic intervention in the field of asylum law has tended to focus on concerns sur-
rounding the UK’s abnegation of Refugee Convention responsibilities (Goodwin-Gill
and McAdam, 2007; Kerber, 2000), detention policy and practice (Malloch and Stanley,
2005; Welch and Schuster, 2005) and judicial decision-making (Millbank, 2002, 2005,
Corresponding author:
Toni Johnson, School of Law, University of Leicester, University Road, Leicester LE1 7RH
Email: toni.johnson@le.ac.uk
Social & Legal Studies
20(1) 57–78
ªThe Author(s) 2011
Reprints and permission:
DOI: 10.1177/0964663910391205
2009a; Rousseau et al., 2002). Though much of this literature critically engages with the
ramifications of asylum policy and practice, less attention has been paid to asylum see-
kers themselves and their experiences in court. Notable exception to this is the work of
Baillot et al. (2009) and medical literature focusing on symptoms of Post-traumatic
Stress Disorder and the provision of testimony (Herlihy, 2007; Kirmayer, 2003; Silove,
1999). This article draws on and is informed by those interventions, positioning itself
methodologically at the intersection of socio-legal analysis and critical theory and draws
on the author’s empirical research in order to explore the court experience.
Through an analysis which decentralizes oral and written testimony and focuses
instead on the gaps and omissions produced in court, the article’s concern is how the
agency of asylum seekers is expressed through silence, asking, if agency is active,
empowered and vocal, is silence a retreat into subjugation? How might we consider
the significance of ‘silences’ that are in operation during asylum hearings? Avery
Gordon has written of the silences within speech using the idea of ‘haunting’ in order
to conceptualize the way in which these omissions render themselves present. Gordon
notes ‘the apparition is one form by which something lost, or barely visible, or see-
mingly not there to our supposedly well-trained eyes, makes itself known or apparent
to us, in its own way’ (2008: 8). In this study I consider a ‘barely visible’ silence –
what I describe as restive silence – conceived as impatient and uneasy, dwelling just
beneath the surface of the asylum claimant’s skin. Restive silence is intangible but
infuses and embodies its host with an unrepentant energy barely contained.
In addressing the relationship between silence, resistance and the Refugee Convention
I begin by briefly discussing the trajectory of UK asylum law as it pertains to sexuality-
based claims. Judicial rejection of many of these claims was founded, until recently, on
the assumption that when claimants are returned to their country of origin they will ‘natu-
rally’ exercise discretion in the expression of their sexuality for purposes of self-
preservation (see HJ (Iran) and HT (Cameroon) vSSHD, 2010). I have argued previously
that ‘discretion’ was a dangerous strategy for the court to endorse, perpetuating the homo-
phobia of both the sending and the incumbent state (Johnson, 2007). Judicial reliance on
discretion and the concurrent silence and silencing that infuses discretion, represented the
macroscopic presence of homophobia in UK asylum law (Dauvergne and Millbank, 2003;
Millbank, 2009b). Relying on the space of the closet as a site of ‘safety’, discretion failed
to challenge the aggressive heteronormativity and homophobia which was, and still is,
partially responsible for its construction.
In the second substantive part of the article I move away from law and legislation and
instead orient my analysis toward restive silence in the microcosm of the asylum court,
considering how the formulism and formalism of the court can be disrupted through
ambiguous and/or tactical behaviours. I draw on empirical research carried out over
2006–07 and indicate the methodological process used to gather data.
Locating Silence
Silence, in its ambiguous and textured quality, bears the burden of meaning making.
In the context of an asylum seeker’s testimony in court, silence can be read as a sign
of both subjugation and resistance. On the one hand, interpretations of silence can
58 Social & Legal Studies 20(1)

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