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

AuthorVanessa E. Munro,Sharon Cowan,Helen Baillot
Publication Date01 Nov 2013
DOIhttp://doi.org/10.1111/j.1467-6478.2013.00639.x
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.
1
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.
2
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'
3
marked by
detachment and denial of responsibility to protect themselves from the
contagion
4
of these emotions. Though reliance on such strategies may assist
professionals' personal coping (at least in the short term
5
), 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,
6
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.
7
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.
8
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',
9
as set out under Article 1A of the 1951 Refugee
Convention.
10
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,
11
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.
12
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,
13
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
513
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>.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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
514
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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',
14
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.
15
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).
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men,
16
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.
17
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
18
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,
19
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.
20
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.
21
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,
22
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.
23
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'
24
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,
25
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.
26
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.
27
Meanwhile, burn-
out ± which can act as a precursor to vicarious trauma ± refers to `a pattern of
emotional overload and subsequent emotional exhaustion'
28
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,
29
but also, chiming with the reasons for
developing coping mechanisms observed by Lipsky
30
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.
31
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.
32
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.
33
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.
34
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.
35
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.
36
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.
37
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.
38
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).
39
Contagion is a risk that faces all who engage with traumatic narratives.
40
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.
36
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.
41
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,
42
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.
43
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.
44
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
45
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'.
46
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.'
47
At
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,
48
a
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.
49
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,
50
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.
51
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.
52
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,
53
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,
54
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,
55
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.
55
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.
56
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,
57
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.
58
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.
59
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,
60
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.'
61
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.'
62
This, in turn, may stifle genuine engagement with
emotion and solidify `embedded trauma' within organizations.
63
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'
64
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.
65
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';
66
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.
67
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'
68
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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