Surviving Disbelief & Denial: women in the asylum appeals process

Legal Updates

[Trigger warning: rape, domestic violence]

In 2014 it was revealed that in some parts of the UK, a quarter of rapes reported to police are not even recorded as crimes. Of the cases that do make it to court, as few as 1 in 30 survivors can expect to win a guilty verdict. It’s little wonder, then, that 85 percent of women raped in the UK never report to the police.

The vast majority of women seeking asylum in Britain are survivors, too. They need to go to court to win their right to asylum. They are subjected not only to the toxic culture of disbelief confronting British survivors but to a deeply embedded culture of denial underpinned by racist and anti-refugee sentiment. And a new report by Asylum Aid is set to reveal how thoroughly that system is failing them.

Through Her Eyes: ensuring women’s best evidence at UK asylum appeals launched last night at Garden Court. The report, to be published soon, examines some of the unique obstacles faced by women in the asylum and appeals process. It will make a series of solid, common-sense recommendations: lawyers and judges, who were often found to lack impartiality, need to be better educated on women’s country and culture of origin as well as the complex psychological impacts of gendered violence; guidelines must be improved and kept to across the board; and unreliable translation and legal representation improved. The report also highlights how cuts to legal aid have made support charities and volunteer solidarity groups all the more vital.

These findings were echoed by women who attended from Women Asylum Seekers Together (WAST) Manchester. They recounted time and again being denied translators, shouted at and called liars by officials. One said:

“I’ve been through six cycles of refusal and appeal. Still they are calling me a liar. Meanwhile, what am I supposed to do? I can’t even work. I want to feed myself and pay my own way, I’m 58 years old. I’m on medication for depression now. The women at WAST are all that’s keeping me alive. And I’m supporting women with children and nowhere to sleep, women so traumatised they cannot even speak.”

In all the case files examined, women had to change their legal representative between hearings, revealing just how difficult it is becoming to find proper representation. And in the majority of cases, the successful appeal against wrongful deportation was only secured by persistent action from the woman and her representative, well beyond normal procedure.

For some of the women interviewed in the report, going through the process had such a devastating impact on their mental health that they chose not to return on appeal even when advised by their lawyers to do so. In the course of last night’s discussion, the reasons for that were made abundantly clear.

In each successful appeal case studied in the report, cases were ultimately won because judges contradicted the assessment of her credibility by the Home Office. Put simply, they concluded the government had wrongly accused her of lying. This tends to happen when a judge assesses credibility ‘in the round’, in context. They educate themselves about her country of origin, give proper weight to her testimony and ensure expert medical and psychological opinion has been sought. They avoid relying on speculative arguments “If you were really afraid of your husband, you would have left home sooner,” or “if your parents were really ashamed of you, they wouldn’t have helped you escape.” Such speculations are often relied upon by the Home Office in asylum cases as they are by the police in domestic cases of gendered violence.

In layman’s terms, judges that reach the truth do so because they give due consideration not only to the woman standing before them but to the collective testimonies of countless survivors from all backgrounds who have testified to the countless reasons they were silenced about rape and domestic violence. Research suggests as many as 29 percent of UK survivors don’t disclose what happened to anyone, even friends or family. As one anonymous survivor writes:

“We live in a society that blames victims and survivors, and which places responsibility on women to avoid rape, not on men to not rape. Our society sexualises women in such a way that all women are viewed as sexually available at all times to all men and creates the idea that a women who refuses to have sex is unfairly denying her boyfriend/husband/friend/date. Our society teaches men that sex is their right and that women are fickle and often mean yes when they say no…

I didn’t and won’t report the rape. I want to protect other women, but there is no way I can do that without exposing myself to possible physical, mental and emotional danger and the potential of irreversible estrangement from my family. Further I have no reason to believe that my report would be taken seriously, be investigated or result in conviction.”

It is particularly difficult to obtain and assess evidence of gender-based violence, especially when it occurs in private spaces. Shame, loyalty, threats, mistrust of the authorities and fear of, as well as fear for family members can all work to prevent or postpone disclosure. Physical evidence may also be non-existent or disappear before disclosures are made, making expert psychological testimony a crucial form of evidence.

Such testimony also helps to ensure that the behavioural impacts of severe trauma – the loss of memory, heightened anxiety and difficulty communicating that comes with Post-Traumatic Stress Disorder (PTSD) – are not, as is often the case, taken to indicate a lack of credibility. However, lack of funding means it is often unavailable or takes too long to obtain – particularly in asylum cases.

Appearing on the panel for the launch of Asylum Aid’s report was leading immigration and family law barrister, Kathryn Cronin. Speaking to the importance of considering all contextual and cultural factors in assessing someone’s credibility, Kathryn reflected on the breadth and depth of cultural ignorance amongst the judiciary. “Just getting a judge to understand, for example, that female genital mutilation is something that doesn’t just happen to children – that you can be at risk when you get engaged, after marriage, even before the birth of your first child – is so hard. There’s a great deal of room for improvement in that sort of guidance.”

Kathryn went beyond the findings in the report to highlight how different forms of discrimination intersect in asylum cases. She explained that women with lower levels of formal education have a much harder time making their cases and being believed, as did women from rural areas. She also pointed out that sexist attitudes disadvantage men as well as women. Men’s applications are much more likely to be denied because of the cultural assumption is that women (at least when they are believed,) “are vulnerable and deserve protection, whereas men that can be described as single and healthy are thought to be able to face what’s waiting for them in their country of origin. So this isn’t just about women and girls. We need to look at the way we’re treating particularly, teenage boys seeking asylum. It’s not good.”

Given all its injustices and failings, behaviour that indicates a lack of confidence in the asylum system and even fear, particularly from survivors of colour faced with a culture of denial and an often all-white, male dominated courtroom, should never be taken as evidence of dishonesty. Neither should marks of trauma which are often the best evidence of what people have endured.

This is something British survivors and those who support them can easily understand; but which either eludes officials or is wilfully denied by them. As James Souter of Oxford University writes for OpenDemocracy, only a culture of active active denial rather than mere disbelief can explain the Home Office’s “frequent refusal to engage fully with the facts of the case and the strong possibility that refusals are made despite belief in the merits of each claim.”

Ultimately, the courtroom does not exist in a vacuum. It is not isolated from but is in fact profoundly influenced by the broader political climate of racism, xenophibia and anti-immigrant rhetoric. As Kathryn put it from yesterday’s panel: “The guidelines for how to deal with vulnerable people are pretty poor because they’ve been written in such a way so as not to give way.”

Artwork courtesy of Eleonore Dambre



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