Second‐hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context

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Published date	01 November 2013
DOI	http://doi.org/10.1111/j.1467-6478.2013.00639.x
Date	01 November 2013

JOURNAL OF LAW AND SOCIETY

VOLUME 40, NUMBER 4, NOVEMBER 2013

ISSN: 0263-323X, pp. 509±40

Second-hand Emotion? Exploring the Contagion and Impact

of Trauma and Distress in the Asylum Law Context

Helen Baillot,* Sharon Cowan,** and

Vanessa E. Munro***

Applicants' accounts of experiences of fear, trauma, violence, and

persecution are central to the process of claiming asylum. These

narratives are, at a human level, primed to provoke emot ional

responses, not only in the narrator but also in those to whom the

account is relayed. In this article, we explore the vectors of emotionality

that permeate asylum decision-making in the United Kingdom, focusing

particularly on the risk faced by the professionals involved of suffering

vicarious trauma. More specifically, based on a series of 104 semi-

structured interviews with asylum stakeholders and observation of 48

appeals to the Immigration and Asylum Chamber of the First-tier

Tribunal, this article identifies the adoption by legal and quasi-legal

professionals of emotional coping strategies ± of detachment and denial

of responsibility ± that risk being deployed in maladaptive ways that

jeopardize the prospects for justice.

Law and emotions scholars have emphasized the need to attend to the

presence and influence of both positive and negative emotions in legislating

and legal decision-making.

In line with this, in some quarters of legal

509

ß2013 The Author. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University Law School.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits

use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modifications or

adaptations are made.

*helenmbaillot@gmail.com

** School of Law, University of Edinburgh, Old College, Edinburgh EH8

9YL, Scotland

s.cowan@ed.ac.uk

*** School of Law, University of Nottingham, Nottingham NG7 2RD,

England

vanessa.munro@nottingham.ac.uk

We are indebted to The Nuffield Foundation for funding this project (AJU/36101) and to

Zoe Harper for her assistance during data collection. We are grateful to Simon Halliday,

Katie Cruz, and the anonymous referees for comments on an earlier draft.

1 K. Abrams and H. Keren, `Law in the Cultivation of Hope' (2006), at

law.bepress.com/expresso/eps/1205>; K. Abrams and H. Keren, `Who's Afraid of

practice and doctrine, there has been an appreciable shift in recent years

away from the tendency to see emotionality as, at best, a distraction from,

and, at worst, an obstacle to, legality. Despite this, there remain enclaves

within which the dichotomization of rationality and emotionality lingers, and

is aligned with guiding conceptions of `professionalism' to preserve a

reluctance to acknowledge the role of emotion in framing legal decision-

making processes and outcomes.

In this article, we position the context of asylum decision-making as a

striking example of one such enclave. Central to the process of claiming

asylum is applicants' narration of experiences of fear, trauma, violence, and

persecution; accounts that, at a human level, are primed to provoke

emotional responses, not only in the narrator but also in those to whom the

account is relayed. The emotion of fear is even built into the doctrinal test for

refugeehood under the 1951 Geneva Convention Relating to the Status of

Refugees.

And yet, these narratives (and the emotion that surrounds them)

appear to require containment and management throughout the asylum

application process. Asylum-seekers' accounts have to depict persecution

and fear compellingly, whilst also meeting expected standards in terms of

internal coherence, concision, and credibility. Decision-makers are required

to solicit these sensitive accounts from potentially vulnerable claimants,

whilst dispassionately and objectively assessing their veracity and the

accuracy of their predicted risk of recurrence. They do so, moreover, in a

context in which margins of discretion for evaluating credibility are wide,

measures for predicting future risk are speculative, resources are limited, and

political pressures are ever present.

Drawing upon fieldwork conducted within the United Kingdom, which

focused primarily upon the treatment of applications from female asylum-

seekers who claimed to have been raped in their country of origin, we

explore some of the vectors of emotionality that permeate this arena.

Without in any way trivializing the significant difficulties that may be posed

by the application and review process to asylum-seekers, we focus here on

the emotional challenges that may be experienced by the professionals

510

Law and the Emotions?' (2010) 94 Minnesota Law Rev. 1997; S. Bandes, `Moral

Imagination in Judging' (2011) 51 Washburn Law J. 1; S. Bandes, `Repression and

Denial in Criminal Lawyering' (2006) 9 Buffalo Criminal Law Rev. 339; S. Bandes,

`Introduction' in The Passions of Law, ed. S. Bandes (1999); T. Maroney, `The

Persistent Cultural Script of Judicial Dispassion' (2011) 99 California Law Rev. 629;

T. Maroney, `Law and Emotion: A Proposed Taxonomy of an Emerging Field' (2006)

30 Law and Human Behaviour 119; A. Harris and M. Schultz, `A(nother) Critique of

Pure Reason: Toward Civic Virtue in Legal Education' (1993) 45 Stanford Law Rev.

1773; L. Henderson, `Legality and Empathy' (1987) 85 Michigan Law Rev. 1574; and

K. Abrams, `Feminist Legal Theory and the Emotions: Three Moments in an

Evolving Relationship' (2005) 28 Harvard Women's Law J. 325.

2 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951,

UN Treaty Series, vol. 189, p. 137, at

3be01b964.html>.

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involved, particularly those who undertake legal or quasi-legal decision-

making roles. We suggest that these professionals, when faced with an

applicant's fear and distress, may use `survival mechanisms'

marked by

detachment and denial of responsibility to protect themselves from the

contagion

of these emotions. Though reliance on such strategies may assist

professionals' personal coping (at least in the short term

), we argue that

they risk being deployed in more maladaptive ways that impoverish the

prospects of a full and fair hearing of asylum appeals.

The asylum sector is clearly not unique in posing concerns about profes-

sionals' exposure to, and ability to cope with, emotional labour. Indeed, as

will be discussed below, pre-existing research in criminal and family law,

social work, and medical arenas has highlighted reminiscent challenges.

Nonetheless, we believe that asylum decision-making provides a particularly

potent breeding ground for contagious trauma and the adoption of `survival

mechanisms', due to its peculiar probat ive, evidential, and narrative

difficulties, together with its highly politicized and resource-limited context,

and the extent of decision-makers' discretion involved. Moreover, the lack of

transp arency t hat ofte n surrou nds asyl um decis ion-ma king and t he

difficulties that applicants may face in challenging a determination that is

ostensibly based on individual assessments of credibility or risk render it an

arena within which strategies of detachment or denial have the potential to

operate regressively without censure.

In the next section, we provide an overview of the context and processes

of asylum decision-making in the United Kingdom, and explain the scope of

the present study, the first of its scale and kind to examine emotional labour

in the United Kingdom asylum context. Having done so, we explore the

complex nexus of emotional demands that can arise within the asylum

system; examine the ways in which the trauma experienced by applicants

can be said to be `contagious'; and uncover the defensive strategies for

coping which may be invoked by the professionals involved. We argue that

the contagion of trauma, and the ways in which asylum professionals

respond to it, can prevent applications from being most effectively presented

or assessed. To the extent that reliance upon defensive strategies maps onto a

broader ideological tendency within some legal or quasi-legal environments

to deny or mismanage the influence of emotion, we will also highlight the

need for certain institutional cultural shifts to encourage decision-makers to

511

3 M. Lipsky, Street-level Bureaucracy: Dilemmas of the Individual in Public Services

(1980) 187.

4 The term `contagion' refers to the transference of emotional distress or trauma to

professionals. We do not use it to connote `infection' from asylum-seekers' `foreign'

bodies, nor to underplay the extent to which the asylum system itself, and the

professionals within it, may contribute to, or indeed create, distress and trauma, as

well as finding themselves exposed thereto.

5 S. Folkman (ed.), The Oxford Handbook of Stress, Health, and Coping (2011).

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more fully engage with the emotional responsibility to the applicant, and to

themselves, that their asylum work entails. Whilst these findings arose in the

United Kingdom context, the fact tha t asylum procedures elsewhere

similarly require the resolution of applications in the midst of an inherently

emotional environment entails that they may well bear relevance for other

jurisdictions.

THE UNITED KINGDOM ASYLUM CONTEXT:

PROCESSES AND PROFESSIONALS

Although soon to be disbanded and restructured,

primary responsibility for

determining asylum claims in the United Kingdom currently lies with the

UK Border Agency (UKBA), an executive branch of the Home Office that

also has general responsibility for border control. UKBA personnel facilitate

two interviews ± `screening' and `substantive' ± designed to elicit from

asylum claimants pertinent information regarding their means and manner of

travel to the United Kingdom and their substantive reasons for claiming

protection.

Although not usually formally legally qualified, the `Case

Owner' (CO) who conducts the second of these interviews is also responsible

for making an initial decision as to the veracity and validity of the

applicant's claim.

This requires taking into account, amongst other things,

the interview, any submissions provided by the applicant or her legal

representative, `objective' evidence regarding the applicant's country of

origin, and the criteria for establishing a `well-founded fear of persecution'

on the basis of race, religion, nationality, political opinion or membership of

a `particular social group',

as set out under Article 1A of the 1951 Refugee

Convention.

512

6 Speech by Home Secretary, Theresa May, 26 March 2013, at

government/speeches/home-secretary-uk-border-agency-oral-statement>.

7 For a summary of these, and the other, key stages of the current United Kingdom

asylum process, see .

8 The CO's role in relation to asylum applicants is described by the UKBA:

Your case owner is the person who will deal with every aspect of your application

for asylum, from beginning to end . . . Your case owner is responsible for

interviewing you; making the decision on your application; managing any support

you are entitled to receive and staying in touch with you; providing official

documents; representing UK Border Agency if you make a legal appeal; and

arranging your integration into life in the UK or your return to your country of

origin.

See .

9 Detailed instructions, intended for use by COs when deciding asylum claims, are

provided by internal Asylum Policy Guidance, see

gov.uk /site conte nt/do cument s/pol icyan dlaw/ asylum proce ssgui dance /consi derin g

anddecidingtheclaim/>.

10 UN General Assembly, op. cit., n. 2.

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Where, as often occurs,

the CO decides to refuse asylum, an avenue of

appeal to the Immigration and Asylum Chamber of the First-tier Tribunal

may be pursued by the claimant. Such appeals are presided over by Immi-

gration Judges (IJs). UKBA `Presenting Officers' (POs) (who again,

notwithstanding the fact that they perform a quasi-legal function, are not

necessarily legally qualified) ± or, in some instances, the original UKBA CO

± are tasked with defending the reasons for initial refusal. While the same

substantive considerations are pertinent at the appeal stage, the more struc-

tured ± and often more adversarial ± nature of the tribunal environment can

influence the ways in which applicants' narratives emerge and evidence is

evaluated, with the role of the IJ varying somewhat depending upon the

presence or absence of UKBA personnel and legal representatives at the

hearing.

While COs and IJs are thus the key decision-makers, they are by no means

the only important actors. Legal representa tives (including solicitors,

barristers, and immigration advisers) may be engaged to varying degrees.

They can play a vital role in supporting claimants and ensuring that their

accounts of persecution are presented in their fullest, and most compelling,

form. Beyond this, there are other, non-legal professionals who also have a

potentially significant role. In this uniquely international and multi-lingual

context, professional interpreters are often present and their skills in accurate

translation, as well as in negotiating the demands of their mediating function,

can be crucial. Moreover, in a sector in which applicants are debarred from

accessing mainstream welfare benefits whilst their claim is pending,

and

often struggle to access wider support services, staff from specialist NGOs

will have privileged understandings of the experiences of individual appli-

cants and their communities. They may be called upon to provide different

levels of emotional and practical support during the application, including

producing `expert' reports or accompanying claimants to interviews or

tribunal hearings.

Each of these categories of key professionals was represented in this

study, and ± whilst more attention was focused in the study's observation

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11 In 2010, 75 per cent of applicants were refused refugee status or any other form of

Humanitarian Protection or Discretionary Leave to Remain at this stage: Home

Office, `Control of Immigration: Statistics United Kingdom 19, Q4 (October to

December 2010)', at .

12 Statistics on the proportion of appeals in the United Kingdom that involve legal

representation are not available, but it is widely accepted that this has decreased in

recent years. Of the 182 hearings observed by Thomas, 18 per cent involved

unrepresented appellants: see R. Thom as, Administrative Justice and Asylum

Appeals: A Study of Tribunal Adjudication (2011) 116.

13 The Immigration and Asylum Act 1999 debarred asylum claimants from accessing

public funds and instead provided for the creation of a separate asylum support

system which can be accessed by persons whose asylum claims have not yet been

determined and who are deemed to be destitute: see

ukpga/1999/33/contents>.

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stage upon the appellate tribunal ± the researchers had the opportunity to

discuss perceptions of initial and appellate stages with all participants, and

were permitted to observe, at least to some degree, all steps in the asylum

application process.

METHODOLOGY

The discussion below is based on data arising from two sources: (i) a series

of semi-structured interviews with key professionals in the United Kingdom

asylum system and (ii) a series of observations of appeal tribunal hearings in

which female asylum applicants sought judicial reconsideration of an initial

UKBA refusal decision.

1. Stakeholder interviews

A small number of interviews were conducted in 2007 as part of a pilot study

(n=13), but most were conducted, with the help of a research assistant,

between August 2009 and December 2010. Tape-recorded interviews, lasting

approximately 90 minutes, were carried out with a variety of asylum profes-

sionals working in four different regions. Three of these regions included a

large urban centre that played host to a sizeable community of asylum-

seekers; these three areas also contained very active asylum appeal tribunals

and UKBA offices in which a large number of COs and POs were based. The

remaining, fourth, region represented a somewhat smaller, though still

significant, asylum community, within which the local tribunal heard a rather

smaller number of asylum appeals. NGO workers, interpreters, and legal

representatives based in this region did, however, have extensive experience

of hearings at other tribunals. In reflection of this, while interviews with

UKBA personnel and IJs were limited to the first three regions, interviews

with legal representatives, NGO workers, and interpreters extended to the

fourth region.

Role No. of participants

Immigrant Judge (IJ) 20

Legal Representative 25

NGO practitioner 21

UKBA personnel (CO/PO) 24

Interpreter 14

Total 104

Interpreters were contacted through an advert placed in the Institute of

Linguists' newsletter, as well as an invitation circulated by the Tribunals

Service, and snowballing of personal contacts. Meanwhile, all identifiable

firms of asylum legal representatives and NGOs in each of the four regions

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were sent an approach letter, asking for permission to interview personnel

with experience in dealing with cases involving women applicants (par-

ticularly, given the study's specific focus, where an allegation of rape had

been disclosed). In regard to UKBA and judicial participants, a more formal

process had to be undertaken. After consulting with policy and operational

personnel, the UKBA granted us permission to interview its staff; by liaising

with team leaders as intermediaries, individual COs and POs were identified.

Likewise, having secured permission from the President of the Immigration

and Asylum Chamber to approach judicial participants, a lead liaison was

identified in each of the relevant tribunal centres, who assisted us in inviting

selected IJs to take part.

These methods of recruitment entail, of course, that all interview par-

ticipants were self-selecting (albeit that some may have been volunteered by,

or received encouragement from, a senior colleague or peer to participate).

The limitations which this places on our findings must be acknowledged, as

must the fact that ± though the overall sample of 104 interviews is sizeable,

particularly in the context of qualitative research in an arena where access is

notoriously difficult ± the numbers within each category of participant are

relatively small. As such, we do not purport to offer generalizable con-

clusions. Nonetheless, particularly given the strength with which the themes

emerged across participant interviews and the fact that we have been able to

triangulate findings through ethnographic observation of appeal hearings, we

believe that we are able to offer important insights into the ways in which

these participants approach the emotional labour in which they are inevitably

engaged in the context of asylum.

Interviews were semi-structured to ensure an appropriate balance between

flexibility and comparability across participants who inhabit diverse roles

within the asylum system. Participants were asked to reflect first on their

perceptions of the scale of rape allegations within women's claims, the

contexts in which such allegations arise, the ways in which they are

disclosed and responded to, and the factors that might tend to support or

undermine their credibility. Having done so, they were also asked to reflect

more broadly on the environment in which asylum decision-making (both

initial and appellate) takes place, what they considered to be the positives

and negatives of their job, and the strategies that they have deployed to cope

with any stress experienced.

2. Appeal tribunal observations

The team observed 48 tribunal appeal hearings involving female claimants.

Of these, 31 were referred to us through a combination of protocols agreed

with participating legal practitioners, NGO support-providers, and the

Tribunal Service, and having been identified as cases within which the

appellant had disclosed an allegation of rape. The remaining 17 cases were

observed as a result of intermittent random sampling of all asylum appeals

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involving women being heard on a given day at a selected tribunal. Although

not all of these randomly observed cases involved an allegation of rape, in

nine of the 17 hearings a disclosure of rape or the threat of rape was

involved; in some others, possible experiences of sexual violence were

alluded to ± for example, through an appellant's mention of `women's

problems' necessitating a request for an all-female hearing or a comment

from a UKBA PO that a case involved `sensitive aspects' ± although this was

not specifically addressed during the proceedings.

Most of these referred and random observations were undertaken at the

key tribunal centres within the three regions described above. However, a

small number of referred observations were also undertaken at other hearing

centres, where we were alerted to cases by legal representatives based in the

study's key regions; in addition, to ensure that the research captured some

insight into the peculiarities of the process and environment in the `detained

fast track',

a proportion of the rando m observations (n=10 ) were

undertaken at a tribunal reserved for fast-track appeals and located at a

large women's detention centre.

During observations, the researchers took detailed notes, based on a tem-

plate agreed in advance, which required recording not only the substantive

content of the proceedings, but also reflections on the overall environment of

the hearing, and the tribunal centre, as well as the body language and

demeanour of all parties present. Time delays associated with the involve-

ment of interpreters ensured that it was often possible to take verbatim notes

contemporaneous with the tribunal proceedings; where this was not possible,

researchers took very detailed shorthand notes, which were supplemented

with additional comments and observations in the immediate aftermath of

the hearing.

In all of the referred observations, both the appellant and her legal repre-

sentative knew of the presence of the researcher and were aware that the

research was focused on the handling of claims of rape. In some ± but by no

means all ± of these cases, the IJ and UKBA representative were also made

aware of the researchers' presence (although not always of the reasons

516

14 Following the `screening' interview, a decision may be made by the UKBA ± often on

the basis of the claimant's country of origin ± to place an individual within the

`detained fast track'. The claimant will then be detained in secure premises pending

determination of her application, intended to take place within two weeks. Although

the UKBA's own guidelines indicate that claimants who have suffered torture or been

trafficked should not be detained ± se e ov.uk/

siteco ntent/ docume nts/po licyan dlaw/a sylump rocess guidan ce/det ention /guida nce/

detained_fast_processes?view=Binary> ± there is no specific exception made for

those who disclose a past experience of sexual violence. Evidence from previous

studies indicates that women who claim to have been raped are detained with relative

frequency: see Human Rights Watch, Fast-Tracked Unfairness: Detention and Denial

of Women Asylum Seekers in the UK (2010). We certainly found evidence of such

cases in our random observations.

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behind it). Similarly, in the random observations, there were some cases in

which the IJ had been alerted to the researcher's presence, and occasionally

the IJ explained this to the parties present, but there were also cases in which

nobody was aware of the reasons for the researchers' presence, reflecting the

current situation in which asylum hearings are open to the public unless a

specific request has been made for `in camera' proceedings. While the risk of

presentational bias cannot be ruled out, it was not possible to identify any

clear difference in terms of the tone or approach to hearings depending upon

participants' knowledge of the presence and purposes of the researcher;

indeed, some of the hearings in which we witnessed the most obvious

instances of bad practice in the handling of appellants and their rape claims

were those in which the parties had been made fully aware of our

observation and its focus.

In a quarter of all the observed cases (n=12), the research team was able ±

through correspondence with the legal representative involved ± to secure

the consent of the appellant to view surrounding case files. This permitted

access to personal statements provided by the appellant, transcripts of the

UKBA substantive interview, the UKBA refusal letter, and the tribunal

determination. Notes were taken on these documents on the basis of a

standard template, with the aim of providing a greater level of context to the

tribunal observations. Thus, factors such as the timing of the applicant's

initial disclosure of rape, the number of lines devoted to it in the transcript of

the UKBA interview, and whether, and how, it featured as part of the

UKBA's reasons for refusal were noted, alongside considerations such as the

applicant's country of origin, the existence of any dependents, the gender of

her UKBA interviewer, and so on.

3. Analysis and research questions

Interview transcripts and notes from hearing observations and case files were

anonymized, and then coded and analysed with the help of NVIVO, a

computer-assisted qualitative data analysis programme. Simultaneous `blind'

coding was undertaken by all authors on a sample of transcripts and case

observation notes. Rather than impose anticipated themes onto the data from

the outset, during this initial period of open coding, themes were allowed to

emerge spontaneously. In light of this, a list of themes was identified, with

the remit of each being clarified to ensure consistency. These were then

organized into a manageable coding structure (comprising 40 `nodes') before

more selective, thematic coding was conducted afresh and detailed analysis

was undertaken.

As noted above, the primary focus of the study lay in examining the ways

in which claims of rape made by female asylum-seekers were disclosed,

narrated, responded to, and evaluated throughout the asylum application

process. As a result, interview discussions concentrated on these substantive

issues, and the cases observed at the tribunal generally included an allegation

517

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of sexual assault. Unsurprisingly, then, many of the thematic nodes identified

related to topics such as the role of rape within asylum claims, the point at

which rape would be expected to be disclosed, the relevance of gender-

matching between applicant and interviewer, and the factors that bolster or

undermine the perceived credibility of the rape allegation, and asylum claim

more broadly.

When conducting interviews, however, the researchers also directly

explored participants' views as to the emotional dynamics of asylum decision-

making, and the ways in which such dynamics permeated the tribunal were

evidenced in the observations conducted. This generated a number of nodes

covering topics such as self-care, decision-makers'/interpreters' under-

standing of their role, trauma and stress, courtroom dynamics, processes

and structures of decision-making, and training/guidance. The data contained

within these nodes, and our analysis thereof, forms the basis of the present

discussion.

In what follows, we adopt a qualitative rather than quantitative approach.

We use descriptors such as `many', `several', or `frequently' not to assert

any kind of statistical significance, but to reflect the fact that the quotations

and incidents selected for inclusion do not stand in isolation, representing

instead one instance amongst others where a similar perspective was

recounted. Where we use descriptors such as `a number of' or `some', we do

so again to allude to the fact that the participant providing the quote, or the

illustrative observation, was not alone in reflecting the encapsulated view-

point, but to indicate that support was not so widely evidenced as where

`many', `several' or `frequently' is utilized.

Though the methods of recruitment for the data within this study, as

outlined above, are restricted in the main to cases involving allegations of

sexual assault, it is important to point out that the relevance of many of the

findings that emerged in relation to professionals' emotional labour is not

similarly limited. As will be discussed below, although the intimate nature of

rape may generate a peculiar form of discomfort amongst some profes-

sionals, for a large proportion of female asylum applicants (including those

whose appeal hearings we observed), such a claim is often accompanied by

allegations of other forms of non-sexual abuse or trauma, such as torture or

the death of family members. In a context in which these can be equally, if

not more, distressing to recount and respond to, the exceptionalism that

attaches to rape is reduced. Likewise, the significance of the fact that this

study focused upon female asylum-seekers, in a context in which women

have conventionally been more closely associated with emotionality than

518

15 See, further, H. Baillot et al., `Hearing the Right Gaps: Enabling and Responding to

Disclosures of Sexual Violence within the UK Asylum Process' (2012) 21 Social and

Legal Studies 269; H. Baillot et al., `Reason to (Dis)Believe: Evaluating the Rape

Claims of Women Seeking Asylum in the UK' (2014) 10(2) International J. of Law in

Context (forthcoming).

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

men,

though worth bearing in mind, ought not to be overstated. Indeed, our

findings suggest that male applicants' accounts of sexual abuse may prompt

higher levels of emotional response amongst professionals, who view such

violation as somehow more upsetting, more invasive, and more likely to be

true than comparable claims by women.

THE EMOTIONAL DEMANDS OF ASYLUM

The need to negotiate the personal, emotional consequences of the per-

secution stories of `others' is one that affects all professionals working in the

asylum arena, regardless of the fact that it may not always be directly

acknowledged or reflected upon. Indeed, Sagy

has identified a series of

`psycho-legal soft spots' that can arise. These are places where the work

undertaken in order to satisfy prevailing legal procedures produces negative

or positive psychological consequences. While Sagy attributes these soft

spots specifically to asylum lawyers, we believe that they are also often

relevant to the experiences of quasi-legal professionals, such as UKBA

personnel, as well as to interpreters and NGO support workers, albeit that the

ability and willingness of different role-players to acknowledge these

emotional challenges may vary considerably.

More specifically, Sagy sketches three `soft spots' which arise: first, in

meeting the challenge of enabling the client to fully narrate her account of

persecution (particularly where the client suffers symptoms of PTSD which

can adversely impact upon memory, concentration, coherence of account,

and so on); second, in handling traumatic narratives as the asylum claim

proceeds in a way that avoids retraumatizing the client; and third, in dealing

with the personal impact on the lawyer or other listener of hearing the

client's traumatic narrative.

The first two `soft spots' speak to the ability of the listener to be aware of

the applicant's emotional state, which may be prompted by a range of often

interwoven factors: the initial trauma of persecution; the trauma of relocation

into a new and strange environment, often without familial or other support

networks; the impact of the asylum process itself, as well as associated

bureaucratic regimes, such as those responsible for the provision of welfare

benefits and housing; and the impact of any decisions that are taken

519

16 C. Gilligan, In a Different Voice ± Psychological Theory and Women's Development

(1982); C. Worden, `Overshooting the Target ± A Feminist Deconstruction of Legal

Education' (1984) 34 American University Law Rev. 1141; C. Menkel-Meadow,

`Asylum in a Different Voice? Judging Immigration Claims and Gender' in Refugee

Roulette: Disparities in Asylum Adjudication and Proposals for Reform, eds. J.

Ramji-Nogales et al. (2009) 202.

17 See, further, Baillot et al., op. cit. (2014), n. 15.

18 T. Sagy, `Even Heroes Need to Talk: Psycho-Legal Soft Spots in the Field of Asylum

Lawyering' (2006) at .

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throughout the process, such as the decision to detain the applicant in the

United Kingdom's expedited `detained fast-track' process. The existence of

both of these `soft spots', as well as the different ways in which professional

roles within the system might influence participants' responses to applicants

and their emotions, was amply demonstrated in the context of the present

study.

On the one hand, descriptions provided by NGOs, interpreters and clients'

legal representatives frequently gave voice to the emotionality of the asylum

context, as perceived by claimants. The application process was described

variously as `really frightening', `very daunting', `extremely stressful', and

`utterly horrifying'. Such respondents recounted examples of applicants

having become distressed and tearful durin g interviews and tribunal

hearings; during the course of our tribunal observations, the researchers

witnessed many such instances first-hand. Indeed, in one case, such was an

appellant's distress following questioning from the UKBA about a period of

alleged captivity and sexual exploitation that she had to be assisted from the

tribunal room by a clinician. Participants spoke of applicants' psychological

reactions to past traumas, which impeded them from fully disclosing

experiences of violence, as well as of the professional's need to safely

contain a nd elicit su ch disclo sures in wa ys that avo id furthe r re-

traumatization. One legal representative concluded that `much of the system

is really in itself quite damaging' for applicants, whilst another insisted `it's

amazing that people can cope at all, to be honest.'

At the same time, however, other respondents (most often UKBA

personnel and IJs) confidently maintained that the system overall is `not that

bad' or `as good as it can get' and that, notwithstanding moments of distress,

applicants on the whole `stand up to it pretty well and they can cope'.

Crucially, however, for many such respondents, this confidence was based

on the presumption not only that the applicant would have a legal

representative, but that this representative would have provided her with

effective, advance guidance and support. Such a presumption is not always

borne out in practice, and is increasingly under threat in the United Kingdom

as a result of legal aid restrictions,

the rigorous application of a `merits'

520

19 In England and Wales, legal aid is subject to both a means and a merit test. The

former is s elf-ex planat ory. Rega rding me rit, unde r curren t Legal Se rvices

Commission rules, `Legal Help' is available for asylum cases up to the point of

appeal, if the help would be of `substantial benefit' to the applicant ± first-instance

asylum applications usually meet this test. Thereafter (for appeal to First-tier

Tribunal) legal aid is administered through `Controlled Legal Representation' (CLR).

CLR will not be provided unless the appeal is `likely to be successful' ± that is, better

than a 50±50 chance. The Legal Aid, Punishment and Sentencing of Offenders Act

2012 came into force in April 2013. While lobbying has ensured that legal

representation in asylum cases remains publicly funded, all other areas of immi-

gration law are no longer eligible for legal aid (excepting cases involving trafficking

or domestic violence). Concerns have been raised that this will have a negative

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

test in asylum cases, and the recent collapse of two of the largest not-for-

profit immigration advice providers ± the Immigration Advisory Service and

Refugee and Migrant Justice.

These participants' confidence in the

sensitivity of the system was also often based on an assumption that the

applicant in cases involving sexual assault will have been offered the

opportunity to be interviewed by a female UKBA CO. As one PO put it, for

example, `if they want a female interpreter or interviewer and interpreter,

they can request that no problem and I mean, you know, they're dealt with

. . . very sensitively and with respect'. Aside from the fact that, in practice,

limited resources entail that this gender matching does not occur in all cases

where it has been requested, such logic risks presenting gender matching as a

panacea in a context in which research has challenged the positioning of

women as necessarily more receptive listeners to accounts of rape.

To the extent that some of our UKBA and judicial participants thus risked

minimizing the effects of fear, distress, and trauma upon (female) asylum

applicants, they also risked underestimating the need for support and sen-

sitivity, including other special gender-based measures designed to ensure a

careful approach to questioning. It is perhaps no coincidence in this regard

that most of the UKBA personnel interviewed showed limited or no aware-

ness of the existence and content of their own organization's Gender

Guidelines. In addition, notwithstanding research and official guidance

which cautions against drawing inferences from an asylum applicant's

emotional demeanour,

particularly where they are recounting traumatic

521

knock-on effect upon immigration firms that offer asylum advice, particularly when

combined with a recent reduction of 10 per cent on the fees that civil legal aid

provi ders c an cha rge. S ee Asyl um Aid , `Pol icy Br iefin g 3', at < http ://

www.asylumaid.org.uk/pages/policy.html>.

20 A. Trude and J. Gibbs, Cost of Quality Legal Advice: Refugee Interviews (2010), at

; J. Gibbs, Justice at Risk:

Quality and Value for Money in Asylum Legal Aid (2010), at

9602/about-us/publications.html>. For a discussion of the impact that a lack of legal

representation can have, see J. Ramji-Nogales et al., `Refugee Roulette: Disparities in

Asylum Adjudication' (2008) 60 Stanford Law Rev. 295.

21 G. Cowan, `Women's Hostility Towards Women and Rape and Sexual Harassment

Myths' (2000) 6 Violence Against Women 238; I. Anderson et al., `Can Blaming

Victims of R ape be Ratio nal? Attri bution The ory and Disc ourse Anal ytic

Perspectives' (2001) 54 Human Relations 445; L. Ellison and V. Munro, `Of

``Normal Sex'' and ``Real Rape'': Exploring the Use of Socio-Sexual Scripts in

(Mock) Jury Deliberation' (2009) 18 Social and Legal Studies 291.

22 W. Kalin, `Troubled Communication: Cross-Cultural Misunderstandings in the

Asylum Hearing' (1986) 20 International Migration Rev. 230; C. Rousseau et al.,

`The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the

Decision-Making Process of the Canadian Immigration and Refugee Board' (2002)

15 J. of Refugee Studies 43; Home Office, Asylum Policy Instruction: Gender Issues

in the Asylum Claim (2010), at

document s/polic yandlaw /asylump olicyin structio ns/>; J. He rlihy et al ., `What

Assumptions about Human Behaviour Underlie Asylum Judgments?' (2010) 22

International J. of Refugee Law 351.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

experiences in a cross-cultural and multi-lingual context, there was a

tendency to maintain that a credible asylum narrative would be one that was

both neat and linear, containing no emotional `bumps' or only those that

manifest the `right' type of distress.

The tenac ity and com plexity o f this link age betwe en emoti onal

demeanour and credibility is of considerable importance.

For current

purposes, however, we are interested in the impact of emotionality not so

much in terms of its influence on decisions regarding veracity, but more

broadly in terms of the ability and willingness of decision-makers to engage

with the narratives presented, and the emotional `fall-out' which those who

listen to these accounts in their professional capacity have to manage. This

relates most closely, therefore, to the third of Sagy's `soft spots' and engages

the question of the contagion of applicants' emotions for professionals in the

asylum environment. In these regards, the question of credibility becomes

less central. Where the listener is convinced that the narrative recounted was

genuinely experienced by the person in front of her, this can heighten its

emotional impact. Equally, there is a significant degree to which, irrespec-

tive of whether or not the listener ultimately considers the narrative to be

true, listening to tales of violence and inhumanity being recounted, par-

ticularly on repeated occasions, can, and does, take its emotional toll. Even if

the listener concludes that the violations were not perpetrated upon this

individual, this may be accompanied by an appreciation that such treatment

is meted out to others in the country of origin, or with an acceptance that the

claimant has endured other forms of suffering which, though not relevant for

asylum, elicit emotion (for example, sympathy) in those whose privileged

background has shielded them from such harms.

A very large number of factors ± both doctrinal and contextual ± are at

play in determining an asylum application. Amongst them, however, we

suggest that the ways in which professional actors manage the emotional

demands of their work can have a tangible impact upon how claims are

handled and evaluated. In what follows, we explore in more detail the

emotional impact upon professionals of hearing and engaging with asylum

narratives. We examine the risks of contagion of trauma faced by those who

routinely listen to allegations of persecution as part of their work. Susan

Bandes has argued that the `failed empathy'

of decision-makers can have a

particularly damaging effect upon prospects for justice. Similarly, we ques-

tion the impact that these emotional challenges, and the strategies that legal

and quasi-legal decision-makers in our study appeared to deploy in order to

deal with them, have upon the ability to engage fully with an applicant's

allegations, to avoid creating victim typologies, and to evaluate asylum

claims in a fair, open-minded, and responsible manner.

522

23 For a more detailed analysis of the role of demeanour in assessing credibility in

asylum determinations, see our discussion in Baillot et al., op. cit. (2014), n. 15.

24 Bandes, op. cit. (2011), n. 1, p. 38.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

THE CONTAGION OF TRAUMA IN THE ASYLUM CONTEXT

Vicarious Trauma, which is often associated with secondary traumatic stress

disorder and compassion fatigue,

refers to the experience of a professional

who develops his/her own trauma symptoms as a result of being exposed to

stories of cruel and inhuman acts perpetrated by and towards others.

It can

include symptoms similar to those associated with PTSD, such as re-

experiencing the event witnessed or narrated, avoidance of recollection of

the event witnessed or narrated, and a numbing effect.

Meanwhile, burn-

out ± which can act as a precursor to vicarious trauma ± refers to `a pattern of

emotional overload and subsequent emotional exhaustion'

resulting in

symptoms such as fatigue, irritability, a sense of hopelessness, a decline in

performance or cynicism. Burn-out can be caused not only by consistent

exposure to traumatic material,

but also, chiming with the reasons for

developing coping mechanisms observed by Lipsky

amongst `street-level

bureaucrats', by:

conflict between individual values and organisational goals and demands, an

overload of responsibilities, a sense of having no control over the quality of

services provided, awareness of little emotional or financial reward, a sense of

loss of community within the work setting.

Pre-existing studies have exposed a significant correlation between the

incidence of vicarious trauma/burn-out and acting as a key participant in

legal advocacy or adjudication. Zimmerman, having conducted interviews

with 56 Canadian judges, outlined what he described as the `torment' they

experienced in dealing with cases of sexual abuse, child maltreatment, and

domestic violence.

Building on this, Jaffe et al.'s research with 105 judges

involved in a range of criminal, civil, and juvenile court adjudication, found

that 63 per cent suffered one or more symptoms associated with vicarious

trauma, including anxiety, fatigue, flashbacks, and a lack of empathy or

523

25 J. Chamberlain and M. Miller, `Stress in the Courtroom: Call for Research' (2008) 15

Psychiatry, Psychology and Law 237.

26 J.I. Richardson, Guidebook on Vicarious Trauma: Recommended Solutions for Anti-

Violence Workers (2001).

27 C. Figley, `Compassion Fatigue as Secondary Traumatic Stress Disorder: An

Overview' in Compassion Fatigue: Coping with Secondary Traumatic St ress

Disorders in Those who Treat the Traumatised, ed. C. Figley (1995) 1.

28 C. Maslach, Burn-out: The Cost of Caring (1982) 3.

29 D.C. Aguilera, Crisis Intervention: Theory and Methodology (1995).

30 Lipsky, op. cit., n. 3.

31 M. Salston and C.R. Figley, `Secondary Traumatic Stress Effects of Working with

Survivors of Criminal Victimization' (2003) 16 J. of Traumatic Stress 167, at 168; C.

Maslach and M.P. Leiter, The Truth about Burnout (1997); B.A. Farber, Crisis in

Education: Stress and Burnout in the American Teacher (1991).

32 I. Zimmerman, `Trauma and Judges', Canadian Bar Association Annual Meeting, 13

August 2002.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

connection to others.

Meanwhile, Levin and Greisberg's study found that a

cohort of United States attorneys working with victims of domestic violence

and crimina l defendant s demonstra ted signif icantly hig her levels of

traumatic stress and burn-out than other professionals engaged in mental

health and social service work.

Indeed, it has been argued that, while

vicarious trauma can be identified in all cohorts of lawyers, it is criminal

advocates, who often encounter narratives of inter-personal violence and

inhumanity, who have a particular vulnerability.

Extrapolating from this research, the risks of professionals in the asylum

process suffering `secondary' or `vicarious' trauma (or burn-out) has also

been highlighted. Gosden has pointed to anecdotal evidence of vicarious

trauma amongst advocates who were intensely involved with refugees and

their claims for asylum.

Meanwhile, Westaby has documented the emo-

tional labour undertaken by solicitors in the United Kingdom asylum sector

which, she argues, can result in stress, depression, and task inefficiency.

Research by Surawski et al. found that the majority of a sample of 84 asylum

advocates in Australia reported either high or moderate levels of stress, and

of the two-thirds of advocates who had previously worked in other

challenging social justice contexts, for example, providing support to

persons diagnosed with HIV/AIDS, over 80 per cent found their work on

asylum to be more distressing.

This is in line with research indicating that

persons working with clients who have experienced trauma attributable to

the actions of other humans are more likely to experience distress, and

potentially the symptoms of vicarious trauma, than those working with

clients whose trauma is attributable to a natural cause (such as illness).

Contagion is a risk that faces all who engage with traumatic narratives.

524

33 P. Jaffe et al., `Vicarious Trauma in Judges: The Personal Challenge of Dispensing

Justice' (2003) 54(4) Juvenile and Family Court J. 1.

34 A. Levin and S. Greisberg, `Vicarious Trauma in Attorneys' (2003) 24 Pace Law Rev.

245.

35 K.W. Saakvitne and L.A. Pearlman, Transforming the Pain: A Workbook on Vicarious

Traumatization (1996); L.P. Vrklevski and J. Franklin, `Vicarious Trauma: The Impact

on Solicitors of Exposure to Traumatic Material' (2008) 14 Traumatology 106.

D. Gosden, `What if no one had spoken out against this policy? The rise of asylum seeker

and refugee advocacy in Australia' (2006) 3 J. of Multidisciplinary International Studies

1, at .

37 C. Westaby, `Feeling like a Sponge: The Emotional Labour Produced by Solicitors in

their Interactions with Clients Seeking Asylum' (2010) 17 International J. of the

Legal Profession 153.

38 N. Surawski et al., `Resisting Refugee Policy: Stress and Coping of Refugee

Advocates' (2008) 20 Australian Community Psychologist 16.

39 M. Cunningham, `Impact of Trauma Work on Social Work Clinicians: Empirical

Findings' (2003) 48 Social Work 451.

40 S. Baird and S. Jenkins, `Vicarious Traumatization, Secondary Traumatic Stress, and

Burnout in Sexual Assault and Domestic Violence Agency Staff' (2003) 18 Violence

and Victims 71; J.S. Felton, `Burnout as a Clinical Entity ± Its Importance in Health

Care Workers' (1998) 48 Occupational Medicine 237.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

It has been suggested, however, that it may be particularly significant for

legal and bureaucratic professionals, since while `being exposed daily to

detailed traumatic narratives is extremely demanding and adds an important

emotional dimension', lawyers are not trained to acknowledge these work-

related emotions, let alone to address the traumatic impact they may have

upon them.

In the context of the present study, there is little doubt that the participants

who appeared most comfortable in reflecting upon the implications of these

emotional challenges were interpreters and NGO workers. Given that inter-

preters will often come from the same community as the appellant, have

suffered similar persecution, or have family or friends remaining in the

difficult circumstances that the appellant recounts,

it is perhaps unsur-

prising that a striking finding was the extent to which they experienced

extreme emotional difficulties. More than one described having `cried their

eyes out' after hearings, whilst others reflected on the long-term impact of

being exposed to applicants' narratives of persecution: as one put it, `there

are things that are stored in that chip in your brain and they are there forever,

you ignore them some of the time, they ignore you some of the time, but they

are never away.'

It was also evident, by contrast, that those least comfortable with dwelling

on the emotional demands of their work tended to be participants who were

legally qualified (legal representatives and IJs) or performing quasi-legal

roles (UKBA personnel). Thus, for example, one CO maintained that,

despite having spent years listening to and evaluating asylum-seekers'

accounts, `I don't think I've ever heard anything that's been harrowing, you

know, that's distressed me in any way . . . I've never been personally

bothered, I've never had a sleepless night about anything.' Meanwhile one IJ

insisted that `I'm blessed with a personality that doesn't hang on to things';

whilst another observed:

once it [the decision] is signed off, you move on to the next one. You may

remember it . .. because it raised an interesting point or there's an unusual part

of it that may raise an issue later on, but no, I don't go home and mull it over

and lose sleep over it.

It would be misleading, however, to suggest that all the legal and quasi-

legal professionals involved in this study were oblivious to, or in denial of,

these concerns. There were some legal representatives and UKBA employees

who joined NGO workers and interpreters in describing their work variously

as `really very distressing', `upsetting', `exhausting', `soul destroying', and

`incredibly difficult emotionally'. Although several barristers maintained that

525

41 Y. Fischman, `Secondary Trauma in the Legal Profession, A Clinical Perspective'

(2008) 18 Torture 107, at 109.

42 H. Holmgren et al., `Stress and Coping in Traumatised Interpreters: A Pilot Study of

Refuge e Inter preter s Worki ng for a Hum anita rian Org anisa tion' (2 003) 1

Interventions 22.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

they do not tend to develop a strong bond with applicants since they are only

involved in cases for a short time, it was also acknowledged that they `really

do worry' and experienced a sense of `relief' when a case is decided

positively. Meanwhile, one UKBA CO described how `every day listening to

these stories of torture and rape . .. you do take it home' and suggested that he

and his colleagues can feel `horrible' for refusing cases even when they are

confident that the decision is sound, because of the detrimental impact that it

has on the applicant. Likewise, another CO acknowledged that we `do think

about the job a hell of a lot outside of work, dream about it . .. because it is

constant and you hear all kinds of crazy things . . . some of them are absolutely

tragic and horrific.'

And while most respondents focused on the challenges posed by refusing

asylum, there were occasional comments which suggested that the emotional

intensity with which claimants receive a positive decision can also be

difficult ± one IJ, for example, recounted a case in which the appellant was

so relieved at securing leave to remain that she became visibly upset, and

noted that, as the presiding judge, this `was very moving. It was difficult to

handle the distress.'

Of course, legal and quasi-legal professionals do more in the asylum

context than receive narratives of trauma and persecution. Given the time

and procedural constraints of the process as it currently operates, UKBA

personnel and legal representatives often play a key role in drawing out this

information from reluctant claimants. This can cause additional emotional

difficulties. As one legal representative put it:

it's really awful to have to make someone tell you about something they don't

want to tell you. And sometimes you have to try really hard, and you have to

push and push a really traumatised person . .. I'm fairly sure that I do stuff that

isn't healthy for those people and that's difficult.

For UKBA employees, moreover, there can be conflicting emotions

arising from the different roles they are tasked with performing in relation to

the asylum application. Although practice did not follow policy in all

regions, or in all instances, the envisaged process for dealing with appli-

cations under the `New Asylum Model' (NAM) entails that the same UKBA

employee who undertakes the applicant's substantive interview and makes a

decision on granting leave to remain, will not only be responsible for com-

municating this decision in person to the applicant but, where that decision is

negative, will also defend that refusal at any subsequent appeal. Such case

management was introduced at least in part in an attempt to improve trans-

parency and efficiency, as well as continuity and institutional knowledge

with respect to particular claims. However, a number of UKBA interviewees

reflected on the `awkward' position in which it left them. They suggested

that it could be difficult to communicate a refusal to a claimant with whom

they had developed a relationship of confidence during the substantive

interview, and that being required to defend that decision in the adversarial

526

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

environment of the tribunal would be even more emotionally challenging. To

some extent, of course, this discomfort reflects a broader tension that may be

experienced by UKBA personnel tasked both with upholding the organiza-

tional aim of maintaining effective border control (the UKBA's most recent

slogan was `Securing our Border, Controlling Migration') and determining

refugee status on a case-by-case merits basis, ostensibly without regard to

political priorities or quotas.

The emotional difficulties and attendant risks of vicarious trauma or burn-

out experienced by professionals within the asylum system will vary not only

according to their role and personal experiences, and the competing demands

placed on them, but also their ability to manage or seek support in coping with

the more harrowing aspects of their job. In the next section, we explore the

coping strategies recounted by our participants as mechanisms by which to

negotiate the impact of emotion, distress, and trauma on their working and

personal lives, as well as the constraints of processes and structures that govern

their working practices. More specifically, we draw attention to two strategies

± of detachment and denial of responsibility ± that were regularly evidenced in

this study by legal professionals and quasi-legal UKBA personnel with

decision-making powers, and explore the extent to which such strategies

harbour the potential to operate in ways that threaten the prospects for justice.

EMOTION AND TRAUMA: PROFESSIONALS' STRATEGIES FOR

COPING

While the present study cast up several examples of potentially problematic

mechanisms for negotiating the emotional contours of the asylum process,

there was also evidence, in some cases, of very good practice. Thus, while

some interpreters observed during hearings appeared markedly disengaged

from the appellant ± in one case, for example, doodling on scrap paper whilst

relaying her account of having been raped and impregnated by her step-

brother ± there were others who made a concerted effort to provide a conduit

not only for the appellant's words but also for the emotional sentiment that

underpinned their enunciation. Likewise, while there were some UKBA POs

who ploughed on with rigorous cross-examination irrespective of the

appellant's visible distress, there were others who acknowledged and sought

to mitigate the difficulty that the appellant may experience in revisiting

traumatic events. Some IJs ignored appellant's tears or distress, or rigidly

closed down questioning on the more sensitive aspects of the appellant's

claim, even where there appeared to be fresh information to be revealed.

However, there were others who acknowledged the appellant's discomfort,

offered breaks and allowed discursive space, both for traumatic narration and

for responding to the emotions which it elicited.

In one hearing that we

527

43 For further discussion, see Baillot et al., op. cit. (2014), n. 15.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

observed, for example, the IJ not only afforded the appellant repeated breaks

when she became upset, but allowed her `a moment, not to compose yourself

but to have a good cry, as that sometimes helps.'

Individuals, of course, employ a variety of coping strategies to manage

emotionally challenging situations. Some will be more `problem-focused',

attempting to alter the situation, whilst others will be more `emotion-

focused', designed to manage distress by reducing the situation's negative

connotations.

In all cases, however, there is a risk of coping strategies

operating in maladaptive ways, particularly in contexts where the emotional

challenges are pervasive and the organizational conditions within which

decisions are made are replete with resource-related, probative, and political

constra ints. In t his latt er regar d, Lipsk y's work w ith `stre et level

bureaucrats', described as:

the schools, police and welfare departments, lower courts, legal services offices

and other agencies whose workers interact with and have wide discretion over

the dispensation of benefits or the allocation of public sanctions

is instructive. It identified, as potentially maladaptive coping strategies,

reliance on routines and stereotypes and the modification of perceived job

roles or conceptions of the client to `get the job done' and `render the

inevitable gap between objectives and accomplishments more palatable'.

In what follows, we explore evidence of strategies of detachment and

denial being used by participating asylum decision-makers, and while

acknowledging that these may be inevitable ± and sometimes appropriate ±

responses, we reflect on the risks that their maladaptive use might pose to

such professionals' ability to respond to, and justly evaluate, the asylum

claim, and claimant, in question.

1. A `matter-of-fact approach': detachment or disinterest?

In navigating the emotional impacts, and risks of contagious trauma,

associated with their work, participants in our study ± and particularly those

functioning in legal or quasi-legal capacities (legal representatives, IJs and

UKBA personnel) ± frequently recounted reliance on strategies which

afforded them some `distance' or `detachment' from the narratives with

which they were presented. Lending credence to a construction of legality

within which rationality and emotionality are distinct, many participants

associated this distancing with the need to adopt a `matter-of-fact' or

`objective' approach. Respondents often emphasized the incompatibility of

528

44 R. Lazarus and S. Folkman, Stress Appraisal and Coping (1984).

45 Lipsky, op. cit., n. 3, p. xi.

46 S. Halliday et al., `Street-Level Bureaucracy, Interprofessional Relations, and Coping

Mechanisms: A Study of Criminal Justice Social Workers in the Sentencing Process'

(2009) 31 Law and Policy 405, at 406.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

becoming embroiled in the emotion of the situation and being able to do their

jobs ap prop riate ly. On e IJ, for e xamp le, em phasi zed th at gett ing

`emotionally drawn in' would be `a very bad thing to do' since it would

jeopardize his impartiality, whilst another insisted that `the only way to

function as a good lawyer is to cut yourself off from the emotion.' Similarly,

another maintained that:

the best approach is straightforwardness, clear questions, simple questions,

matter-of-fact questions, non-judgmental questions, so that the information

can just come out . .. We all know that when we get emotionally caught up in

something, it is hard to make sense of it.

This approach was also endorsed by other legal and quasi-legal participants.

Thus, one legal representative maintained, for example, that one has to be

`sympathetic but detached' in order to perform one's role effectively, whilst

a UKBA CO insisted that `rape is just a word . .. You look at it from a step

back . . . and don't get so emotionally involved that you can't do your job.'

While it may do a disservice to the ways in which the emotional demands

of `good lawyering' might be better accommodated, this approach can be

seen to reflect a legitimate coping mechanism designed to provide `a way of

defending oneself from hearing the traumatic material of the survivor.'

the same time, hiding behind the rhetorical comfort (for some lawyers at

least) of `matter-of-fact' approaches may disguise the extent to which, in

reality, it is far more difficult for professionals to avoid the emotional impact

of engaging repeatedly with traumatic narratives. More problematically, it

became apparent that, for many of our participants, this approach translated

not so much into a controlled balance between detachment and sympathy,

but a reluctance to engage at all with the narratives of abuse ± specifically, of

rape ± that had been disclosed.

In line with previous research, which found that therapists working with

Holocaust survivors had a tendency to take part in a `conspiracy of silence'

whereby they avoided the traumatic material their clients tried to relate,

number of participants maintained that it was more `sensitive' to avoid

asking questions about the incident of rape itself. Respondents indicated that

while there were occasions in which the circumstances of the attack would

be rigorously explored ± sometimes as a result of a deliberate strategy by

legal representatives to provoke an emotional display by the applicant ± an

equally, if not more, common strategy, particularly on the part of UKBA

personnel and (some) IJs, was to avoid questioning on this topic altogether.

At best, this entailed that decision-makers relied exclusively on a frequently

`flat, unemotional' written account of the alleged rape, which would often ±

529

47 Salston and Figley, op. cit., n. 31, p. 170.

48 Y. Dan iel i, `Th e Tre atm ent an d Pre vent ion o f Lon g-Te rm Ef fect s and

Intergenerational Transmission of Victimisation: A Lesson from Holocaust Survivors

and their Children' in Trauma and Its Wake, ed. C.R. Figley (1985) 295.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

but not always ± have previously been provided in the applicant's personal

statement. At worst, it led to decision-makers ploughing on in ignorance of

this element of the claim, or of potentially vital details in relation to it,

focusing instead on other aspects of the claimant's account ± often as part of

what was interpreted by some respondents as a strategy designed to

undermine the applicant's credibility. Indeed, having identified the use of

similar `avoidance strategies' amongst stakeholders in cases before the

Canadian Immigration and Refugee Board, Rousseau et al. argued that,

while presented as a way to protect the claimant from the distress of

providing sensitive testimony, this often ensured that accounts of traumatic

events which were not permitted a full narration could be easily dismissed,

thereby doing a serious disservice to applicants.

While by no means immune from reliance on such avoidance strategies,

several legal representatives in the present study expressed frustration at

their use by others in the asylum process. One legal representative, for

example, observing that UKBA POs often `skirt around' the claim of rape,

noted that this minimized and managed the emotional fall-out in the tribunal:

I suppose the advantage for them is the judge then doesn't actually hear the

appellant give evidence . .. and unlike ourselves where we get clients breaking

down in tears and the obvious emotion of going through what they've gone

through, that's all wiped out in the court, it's so anodyne.

While for some respondents, this approach was an entirely appropriate,

`impartial', and `professional' response, for others,

it was more problem-

atic, reflecting decision-makers' discomfort with the particularities of the

rape claim and/or their personal unease at the emotional response its narra-

tion might elicit. Thus, whilst one CO acknowledged, `some interviewing

officers don't like to ask specific questions ± how were you raped, how many

men, what exactly did they do', an IJ observed: `there is a discomfort around

facing and dealing with what may have happened to people . .. because then

you've got to face what that means and how you feel about it, which is not

good.'

Such apparent reluctance to probe was exemplified in one hearing that we

observed in which the appellant recounted at her substantive interview

having been held in detention in the Democratic Republic of Congo on three

occasions and having been raped during the third period. It was apparent

from the transcript of this interview that the male UKBA CO (who, having

forgotten his spectacles, wore sunglasses throughout) did not ask for any

further detail regarding the alleged rape, nor did he ask any questions about

the applicant's treatment during the previous detentions, despite evidence

indicating that rapes in such conditions were common.

The resulting lack

530

49 Rousseau et al., op. cit., n. 22, p. 59.

50 id.

51 COI Service, The Democratic Republic of Congo Country of Origin Information

(COI) Report (2012).

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

of detail on this point was later relied upon in this case to support the

UKBA's assertion that the applicant had invented her claims of detention

and abuse.

As well as the procedural justice concerns that it prompts, such an

approach ignores the extent to which it may be crucial to survivors of rape

(and other forms of violence) to be afforded an opportunity to narrate what

has happened to them and for asylum applicants to feel as if their case has

been heard at its fullest. It risks cloaking disengagement as sympathy, and

dissociation as (legal) rationality. What is more, it denies the reality that, in

many cases, a more `sensitive' approach would be to engage in careful

questioning, perhaps through trained intermediaries, to elicit information

without retraumatizing.

Despite these potential difficulties, many of our interviewees emphasized

that this more detached approach was something that they had cultivated ±

consciously or otherwise ± over time, to assist them in acting professionally.

Though previous research is divided as to whether persons performing the

same job-role over an extended period are more or less likely to experience

vicarious trauma/burn-out,

many respondents were confident that they had,

with experience, learned to cope better with the emotional aspects of their

work. As one legal representative put it, for example:

when you start in this you hear all these stories and you get quite sort of caught

up in it all and everything, but I've been doing it too long to get emotional

about them any more . .. I just treat it all as just a story, I don't think about the

reality of it.

But this reference to treating the narrative as just a story raises further,

and potentially serious, concerns. Even where it begins as a self-protective

psychological strategy, such an approach may develop into an automatically

dismissive and sceptical attitude towards claimants, impacting on the way in

which their credibility is assessed, and their chances of receiving an open-

minded evaluation. This was well-exemplified by one UKBA CO who

maintained that:

it is literally just standing back, reading it as you would read a book . . . and

then, when you have a person in front of you and you are asking them

questions, focusing on your questions . . . in your head, you have to go in

thinking I don't believe this story, because if you went in there believing that

story, you couldn't really do your job.

531

52 This refusal was overturned at appeal with the IJ citing lack of questioning by the

UKBA about abuse in detention as a reasonable explanation for the appellant's

initially partial disclosure.

53 Cunningham, op. cit., n. 39; A. Birck, `Secondary Traumatization and Burnout in

Professionals Working with Torture Survivors' (2002) 7 Traumatology 85.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

To the extent that this approach corresponds, or even partially contributes, to

what critics have dubbed a `culture of disbelief' within the UKBA,

it may

also gain institutional confirmation, detrimentally impacting further on the

quality of decision-making.

Adopt ion of s trat egie s of det achm ent, w hen op erat iona lize d in

maladaptive ways, has thus also been associated with a gradual process of

`case hardening'. It is not simply that professionals may become more

detached from the stories that they hear, failing to fully engage with their

human and emotional dimensions. Over time, the various stories risk being

received as routine and mundane, to the extent that it may become difficult

for decision-makers to approach each case afresh and avoid creating

hierarchies of persecution which demand ever higher levels of suffering to

incite sympathy. As one UKBA PO put it:

to start with it was quite traumatic . .. and then, after a while, I suppose once

you've read a lot of these cases and you tend to sort of get past the stage where

they might, they're probably not telling the truth anyway . . . I don't know if

you become hardened to it, well perhaps you do a little bit; you learn ways of

dealing with it.

Previous observers have raised the spectre of `case hardening' in the

asylum context,

and many of our participants were alert to this risk. One IJ

commented, for example, that:

I think every judge recognises the danger that, as you hear more cases along

the same lines, so you start becoming slightly tougher . . . because of the

harrowing nature, you think oh well, that's not as bad as that one, and then

there's a problem . . . you do get that sort of upping of the level.

At the same time, other respondents nonetheless confessed to falling into this

tendency. One UKBA CO commented:

the job, once you have done it for a certain amount of time . . . you take the

attitude of ± I know you shouldn't and this is one of the things they warn you

in the training, you know, that every case is different and in every case there is

a human being's life at stake ± but it does get to the point where it is the same

grind, you hear the same story over and over again and it does, you know, it is

human nature, you think `oh, I have heard this before'.

532

54 Amnesty International UK, Getting it Right: How Home Office Decision-Making

Fails Refugees (2004); Independent Asylum Commission, Fit for Purpose Yet? The

Independent Asylum Commission's Interim Findings (2008); R. Gupta, `Trapped by a

Culture of Disbelief' Guardian, 5 September 2007; J. Souter, `A Culture of Disbelief

or Denial? Critiquing Refugee Status Determination in the United Kingdom' (2011) 1

Oxford Monitor of Forced Migration 48. For a more in-depth discussion of the culture

of disbelief in the context of this research, see Baillot et al., op. cit. (2014), n. 15.

M. Travers, The British Immigration Courts (1999); UNHCR Quality Initiative Project:

Key Observations and Recommendations (2008) 6, at

fileadm in/use r_uplo ad/pdf/ 5_QI_K ey_Obs ervati ons_and _Recom mendat ions.. pdf>;

Asylum Aid, Relocation, Relocation: The Impact of Internal Relocation on Women

Asylum-Seekers (2008), at ta/files/publications/89/

Relocation_Relocation_research_report.pdf>.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

Meanwhile, a legal representative observed that `people are incredibly

hardened to accounts of violence in this field and are no longer shocked to

their socks as they ought to be, and horrified at the inhumanity of man.'

Supporting the conclusion that case hardening functions, at least in part, as

an emotional coping strategy, moreover, some participants even reflected on

its self-defensive benefits. As one IJ put it:

if you disbelieve everybody you see who has been tortured, then you don't

have to grapple with the emotional side of what it is to listen to somebody who

has been tortured . . . Judges become case hardened, they achieve a distance,

but they achieve it at the expense of having any kind of empathy or

compassion.

2. The buck stops where? Coping through denial of responsibility

An alternative strategy which was frequently recounted by participants as a

mechanism by which to cope with the ramifications of their professional

actions, including their emotional impact, was to deny or shift ultimate

responsibility. For many, the responsibility which came with their work ±

particularly where it involved preparing an applicant's case, determining its

veracity or making a decision to refuse or grant asylum ± augmented

significantly the emotional toll which was already experienced as a result of

engaging routinely with traumatic narratives in tense environments.

This too required management in order for the professional to avoid

becoming overwhelmed. There were some participants who dealt with this

responsibility by embracing as fully as they could the importance of their

task and becoming ever more conscientious. As one IJ put it, for example:

I can't say I lose any sleep about it now, but I am too thorough. I write huge

determinations which go on forever . . . That's the only way I can live with

myself, to make sure that I have investigated it as thoroughly as I would want

my case to be investigated.

On the other hand, a large number of participants managed this emotional

challenge by trivializing their role in securing a final outcome for the

applicant, or shifting responsibility for it to other personnel or institutional

factors.

A number of UKBA COs, for example, sought consolation in the fact that

they were not the final decision-makers. They emphasized that their refusal

of an applicant's asylum claim was ± in the words of one CO ± `really only

the start of a long road', which would not in itself necessarily see a person

removed, since there is the potential to apply to the tribunal for judicial

reconsideration. Another CO suggested:

in the back of your mind as well, you know, this alone isn't going to return

them straight away, they have a right of appeal and so it will go and be

reviewed by somebody else . . . they'll make sure it's the correct decision.

Similarly, another commented that:

533

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

in terms of the responsibility that your decision has, you just have to think

about the wider aims of the organisation and also know that we're making the

first decision . . . and that the applicant had other rights of appeal, so you've

got to shift the responsibility on to someone else otherwise you would just get

very depressed.

Meanwhile, a number of IJs at the First-tier Tribunal emphasized that they

too were not beyond review ± as one put it, `you sign it off [the decision] and

that is that. If you've got it wrong, the Court of Appeal or somebody will tell

you.' Another commented, `I'm perhaps not getting it right all the time but

they have got the appeal option so if I have got it wrong then hopefully

somebody will get it right at some point.' For several IJs in particular, the

emotional work that this insistence afforded did not go unacknowledged.

One observed that:

at the end of the day, we are only the bottom layer of a whole series of appeals

that can go on and on and on . .. So it sort of numbs that bit about `if I make

this decision, will this mean this person goes back and suffers this', you know.

Another referred to the fact that further appeal exists as a `nice comfort

blanket' that cushions against the full weight of responsibility for the

decision.

Once again, while reliance on such strategies may be understandable, and

can doubtless perform a function in enabling decision-makers to cope better

with the emotional dimensions of their work, they pose a number of risks in

the asylum context. For one thing, this approach assumes that applicants will

have both the understanding of the system and the financial means available

to lodge an appeal. In a context in which there is significant evidence that

asylum-seekers often do not properly understand the application process, this

cannot be relied upon. Moreover, the substantial cuts to legal aid availability

in asylum cases in the United Kingdom render it increasingly unlikely that

applicants will have the means to make the kind of prolonged series of

appeals that are theoretically available to them, and upon the existence of

which many of our participants relied in order to mitigate their personal or

professional responsibility.

In addition, such an approach may underestimate the extent to which an

initial refusal decision, particularly when made on the grounds of (in)credi-

bility, can damage both the confidence of the appellant and the perception of

her claim. As one NGO worker emphasized, `once they have an initial

decision, and it can be a totally, totally wrong decision for lots of reasons, it

is then very difficult to get that decision overturned.' Although the over-

turning of refusal decisions at the tribunal is by no means uncommon,

our

534

56 Gibbs, op. cit., n. 20.

57 In 2010, the First-tier Tribunal determined 17,930 appeals; 27 per cent of these

were allowed, raising concerns over the quality of initial UKBA decision-making:

E. Smith, Right First Time? Home Office Asylum Interviewing and Reasons for

Refusal Letters (2004); but see, also, Thomas, op. cit., n. 12, p. 71; Asylum Aid,

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

interviews with UKBA POs indicated that they typically approach appeal

cases with scepticism. As one put it, for example:

I think the attitude is, well, most of the time we don't believe them [the

appellants] anyway it's just made up . .. It would be different if I were a Case

Owner where I see everybody that comes into the country and I saw the people

that were allowed, you know . .. (but) these are people that have been through

and they have been found to be not believed . . . they're not to be believed in

the majority of cases.

Moreover, even where they may personally question the merits of an

individual refusal decision, some POs reported to us that they still see it as

their role to defend that decision robustly at the tribunal on behalf of the

UKBA. For example, one told us:

Whatever happens you are going to try to knock that because you know,

you've made a decision, you've got to defend the decision. If it was something

that was absolutely glaring and it was obvious to me we'd made a mistake,

then obviously we would look at it and maybe withdraw the decision and

change it. But it tends not [sighs] that's unlikely, we would probably still be

fairly certain of what we'd said.

This kind of approach may impact negatively upon the overall tone of the

hearing, the attendant capacity of the appellant to present her case, and the

decision of the IJ.

For many of the legal and quasi-legal professionals that we interviewed,

then, a reassuring way of managing the emotion associated with their

decision-making was to defer responsibility for the final outcome to another,

superior body or role-player. Meanwhile, for others, seeking refuge in a

formalistic approach to their task in applying the law served a similar

function. As one IJ put it:

what you're looking for is not the truth I am afraid . .. but is there a sufficiency

of evidence . . . So what I'm really doing is trying to work out is there a real

risk on return and that way, that does kind of detach myself from the

harrowing features . . . So I don't get too emotionally embroiled in a case.

This strategy was vividly illustrated in one hearing we observed during

which an unrepresented appellant, who had recounted a story of rape and

domestic abuse, clearly agitated the presiding IJ by saying, in response to the

invitation to provide a statement in reply to the UKBA's submissions, that `if

the decision is that I be deported to Pakistan, it is your right to kill me here.'

Although the appellant broke down in tears immediately after this comment,

the IJ offered her no opportunity to compose herself, nor to provide a further

statement, but instead responded in a rather `frosty' tone:

535

Unsustainable: The Quality of Initial Decision-Making in Women's Asylum Claims

(2011), at nsustainableweb.pdf>; Home

Office, Quality and Efficiency Report: Thematic Review of Gender Issues in Asylum

Claims (2011).

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

I would like you to control yourself a moment. I want to explain my duty. It is

not my duty to send you here or there. That is for the Home Office. My duty is

to decide if you qualify to stay here in light of the law of this country. I have to

work in the law. That is my job and all I can do.

A similar approach was evidenced, moreover, in another hearing we

observed in which, responding to the appellant's plea `to consider my case

very carefully so that you please don't send me back', the IJ insisted:

I don't send anyone anywhere . . . If the appeal is dismissed, it is up to the

Home Office to send you back or not. I am entirely independent of the Home

Office. Only they make the decision as to who gets sent back. The decision I

make is whether or not you should be recognised as a refugee or if you do not

have a reason to remain in this country.

Not only do these provide interesting examples where members of the

judiciary, who were often the recipients of responsibility `buck passing' from

UKBA personnel in our study, relocated responsibility back with the UKBA

as the key administrative body operating on behalf of the Home Office, they

also clearly illustrate a distancing of oneself from the real consequences of

one's decision by seeking refuge in the faceless formality of legal principle.

Just as some respondents referred to a designated individual or institution

further up the appeals chain that they could identify as having `real'

responsibility for the decisions that they merely initiate, these respondents

undertook a similar approach by personifying the law and legal system in

order to designate it as having its own agency, irrespective of their necessary

function within the system's operation. Such an approach is in line with

previous work, exploring coping strategies amongst United States public

defenders, which found that they sought to absolve themselves of respon-

sibility for their contributory actions.

It also chimes with concerns raised

by Abrams and Keren, who note that judges who try to disconnect from the

affective impact of their work underplay the `daunting power' that they have

over the lives of others.

While, once again, these tactics may assist

decision-makers in coping with the emotional consequences of their work,

they provide an artificial barrier that can slip into a lack of engagement with,

and ownership over, the decisions that they take.

MOVING FORWARDS: ALTERNATIVE STRATEGIES

We have traced two key strategies ± of detachment and denial ± recounted to

us by a number of the asylum professionals that we interviewed and

evidenced in the tribunal observations that we conducted. Each of these

536

58 D.R. Lynch, `In Their Own Words: Occupational Stress Among Public Defenders'

(1998) 34 Criminal Law Bull. 473, at 491.

59 Abrams and Keren, op. cit. (2006 and 2010), n. 1.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

strategies was engaged with at a highly individual level. Nonetheless, it was

evident that they were particularly heavily relied upon by legal and quasi-

legal (UKBA) participants, who considered them to be not only personally

useful but professionally appropriate. Detachment (at least where it stopped

short of manifesting case hardening) was associated positively with `getting

the job done', whilst denial was premised upon the existence of a well-

functioning legal system in which the participant either formed only a small

part or acted merely as an enforcer of its guiding principles. To this extent,

we suggest that our professionals' defence of their use of these strategies

often relied upon and bolstered a tendency to deny or label as `unprofes-

sional' the existence and influence of emotion within legal decision-making.

In this section, we reflect briefly on what this might mean in terms of moving

forward.

When participants were directly asked to reflect on how they coped with

the emotional demands of their work, most recounted internal and informal

strategies, rather than referring to any kind of institutional or professional

support provided by their employers. Participants typically emphasized the

importance of learning how to `look after yourself' and ensuring that one has

hobbies or other `diversions' to alleviate the pressure of work. In line with

previous research,

references to what were seen as positive coping mech-

anisms, such as exercise, yoga, and socializing were particularly frequent, as

were comments suggesting that some participants chose to speak to family or

friends in order to provide a release ± although these comments were often

matched by statements from other participants indicating that friends and

family were the last people that they wished to talk to, preferring instead to

`block out' the events of the working day when they got home.

It was not uncommon for participants to indicate that, where they felt they

needed to, they would speak with work peers to `off-load' after a difficult

session. Indeed, a number of respondents ± particularly those working as

UKBA COs ± were very positive about the level of informal support that

they received from colleagues in this way. As one put it, for example, `the

Case Owners are an amazingly supportive group for each other.' The

difficulty with this is that it risks increasing the emotional burden on

colleagues who themselves have had to confront challenging narratives and

may be struggling to process these. It is also a solution which will not be

available for many others working in the asylum process ± specifically

interpreters, IJs, and many legal representatives ± who tend to work in

relative isolation and without the kind of collegial support of a number of

similarly employed peers.

Beyond this, another source of concern associated with an exclusive

reliance on peer-s upport mechanisms i s that the core strate gies for

537

60 L. Schauben and P. Frazier, `Vicarious Trauma: The Effects on Female Counsellors

of Working With Sexual Violence Survivors' (1995) 19 Psychology of Women Q. 49.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

responding to emotional difficulties are thereby left to be conditioned by the

internal parameters and culture of the organization. Martin et al. have argued

that organizations have emotional cultures that `consist of language, rituals

and meaning systems, including rules about the feelings workers should, and

should not, feel and display.'

By relying on peer groups to provide

emotional support, there is a risk of stagnating received conventions, such

that `staff learn to pay attention to (stress) and talk about it in the

``organisational'' way.'

This, in turn, may stifle genuine engagement with

emotion and solidify `embedded trauma' within organizations.

This might

be of particular concern in the context of the UKBA, where, as noted above,

critics have identified other coexisting cultures of scepticism and disbelief,

which can further support the adoption of maladaptive emotional responses

towards applicants' narratives.

Although such concerns might lead us rapidly to the conclusion that one

productive way forward would be the instantiation of more professional,

structured systems for supporting key actors in acknowledging and coping

with the emotional demands imposed upon them by their asylum work, our

findings indicate that this will not be a straightforward process. It is true that

some of our participants commented unfavourably on what they felt was a

lack of formal avenues for support within their organizations, in order to help

them in dealing with the emotional impact of their job role ± for example,

structured processes for raising concerns with senior managers or being

referred for specialist counselling. As one UKBA CO put it, `you have to

cope with it on an individual level, but maybe more help from the organisa-

tion wouldn't go amiss.' At the same time, however, in those organizations

such as the UKBA where such structures ± in the form of a referral for

counselling ± are formally in place, a large number of participants appeared

to have a very limited awareness of their existence and often emphasized that

they were unlikely to find it necessary to go beyond informal peer support.

Another UKBA CO noted that she was `not aware of anything that we've got

in place to help people . . . but I'm sure there are . . . I think if you needed to

talk to someone there are, there would be, something available for you.'

Despite reporting that she had been `absolutely horrified' and `really quite

upset' when she was first required to deal with cases involving rape, she

went on to insist that `I've never been so upset that I've sort of felt the need

to do that . .. I just sort of consider it as part of the job now . . . and you just

learn to deal with it emotionally, I think'. As discussed above, this learning

to `deal with it emotionally' may, however, mean clinging to defensive

538

61 P.Y. Martin et al., `Crisis Work: Rape Work ± Emotional Dilemmas in Work with

Victims' in The Emotional Organisation: Passions and Power, ed. S. Fineman (2008)

44, at 46.

62 S. Hormann and P. Vivian, `Toward an Understand of Traumatized Organizations and

How to Intervene in Them' (2005) 11 Traumatology 159, at 163.

63 id.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

`survival mechanisms'

that protect the well-being of the listener at the

potential expense of a fair and full hearing for the applicant.

This is in line with the findings of previous research, involving criminal

lawyers, which found that, notwithstanding evidence of high levels of

subjective distress, self-reported vicarious trauma, depression, and stress,

only half of respondents had even considered discussing work-related

distress with a supervisor, and far fewer had considered, or sought out, other

forms of professional assistance.

The implication underpinning many of

the responses of our participants in this regard was that seeking support for

the emotional aspects of their role would be viewed as admitting a weakness

or failure, or inability to perform one's work effectively, and that, as such,

would not be something comfortably brought to the attention of senior

managers (or indeed peers, to whom they also may feel a sense of account-

ability). This reinforces an approach within which, as Bandes puts it `ack-

nowledging the role of emotion may brand one as not merely weak but

downright unlawye rlike';

indeed, it chimes wi th previous resea rch

exploring emotion in the legal context wherein those practices identified

by professionals as optimal coping strategies (such as the availability on

request of professional counselling/support) were nonetheless seen to be at

odds with the realities of the juridical environment.

In the present study,

there were some participants who intimated that the emotionally challenging

nature of their work, coupled with a lack of appropriate support, did

compromise their ability to perform their jobs optimally ± as one UKBA

employee put it, `as a Case Owner, you do want to be . . . compassionate to

them, but it's quite difficult if you're being confronted with things that

you're unable to deal with yourself.' However, the extent to which such

professionals would take advantage of the opportunity for additional,

formaliz ed support , in the absen ce of a subst antial cha nge to the

organizational cultures of the bureaucratic and juridical institutions that

currently operate in the context of asylum, was unclear.

CONCLUDING REMARKS

There can be little doubt that those who bear the heaviest emotional toll in

the asylum process are those vulnerable and displaced people for whose

protection the international refugee system was initially constructed. Paying

attention to the distress and trauma of asylum applicants is crucial if we are

to create an appropriately humane forum for the narration and evaluation of

stories of persecution, flight, and future risk. At the same time, however,

539

64 Lipsky, op. cit., n. 3.

65 Vrklevski and Franklin, op. cit., n. 35.

66 Bandes, op. cit., n. 1, p. 342; see, also, Harris and Schultz, op. cit., n. 1.

67 Jaffe et al., op. cit., n. 33.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

professionals' repeated confrontation with narratives of persecution and

violence, together with the constraints and complexities of asylum decision-

making processes and structures, mean that they may have difficulty coping

with the emotional demands and responsibilities associated with their work.

That they should seek out strategies for managing this is far from surprising.

Indeed, it speaks to what may well be the limits of our human ability to

engage deeply and empathetically with the suffering of others without

eventually becoming overwhelmed. But the creat ion, invocation, and

defence of these strategies does not occur in a vacuum, and the ways in

which they are framed by the peculiar contours of the asylum environment

must be reflected upon. This is an arena in which discretion is substantial,

resources are tight, and uncertainty abounds. However, wherever possible,

institutional frameworks ± offering both training and counselling ± for the

support and management of emotional labour must be offered, and their use

by employees encouraged, if decision-makers and others working in the

system are to undertake their daily tasks without running the risk of

undermining the fairness of the process of asylum determination. For this to

be effective, cultural shifts must take place as to notions of professionalism

and effectiveness. Just as the emotion of applicants must be managed to

ensure compelling, coherent, and credible persecution narratives, so the

emotion of decision-makers is often muted and contained in the pursuit of

`professional' outcomes. In a legal context in which emotion is rarely so

easily quarantined and what constitutes an objectively rational conclusion is

rarely so self-evident, we argue that these `survival mechanisms'

should be

monitored carefully lest they allow professionals to find their own refuge in

distanced and distancing conceptions of legality that, in promoting coping

strategies of detachment and denial, risk undermining justice.

540

68 Lipsky, op. cit., n. 3.

ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School

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Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
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Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

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Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Second‐hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context

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Over 100 Countries

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Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users