From the perspective of an immigration lawyer
Kathryn Cronin, Garden Court Chambers, 5th May 2008
This contribution to the discussion is written from the perspective of an immigration lawyer.
I have spent almost 30 years in practice either teaching or advising on immigration law or representing many hundreds of applicants in their quest to enter or remain in either Australia or the UK. I have also written a history PhD on nineteenth century Chinese immigration to Australia and my research on this earlier immigration has informed my understanding of the modern phenomenon of migration. I combine both of these perspectives in this piece.
I propose to focus on certain features of immigration which I assume will be of interest to anthropologists and also to document the role and insights which immigration lawyers and decision-makers derive from social anthropology.
Immigration Law and ‘The Immigrant Journey’
My family were Irish immigrants who migrated to Australia. I therefore grew up hearing the tales of their journey by ship and their travel overland to ‘outback’ Australia. Australia has a number of museums celebrating pioneering immigration. These recreations emphasise the privations experienced by immigrants in their journeys to Australia as evidence of the immigrants’ resilience, courage and aptitude for settlement. The message conveyed is that these early immigrants were resourceful, hard-working, had initiative and the flexibility to adapt. Their journeys to Australia are presented as proof of their endurance and tenacity, as proof that they were good, useful immigrants.
As a practising lawyer, I am continually struck by our changed reception to immigrant journey stories. We no longer view their privations as evidence of their skills, but of their duplicity – their evasion of immigration control. Their endurance is not celebrated but featured as threatening – as their unremitting determination to take from not to add to our societies. We no longer celebrate plucky entrepreneurial immigrants but we reward those who wait their turn in orderly queues for immigration vetting and punish the ‘self-selecting’ immigrants who arrive through irregular immigration routes. We no longer marvel at the risks encountered and overcome on immigrant journeys; nor do we assume (as we did in the 1950-70s) that only genuine refugees would make their risky journeys by small leaking boats, under railway carriages or hidden in the cargo of lorries. The term ‘economic migrant’ once a commendation of European migrants relocating to the colonies is now a pejorative appellation. Used in asylum appeals it is indicative of deceit and fabrication. In all we have travelled quite an intellectual journey in our images of immigration.
Immigration law both reflects and has fashioned this transformation in our perception of and reception to immigrants.
It is worth noting that our modern immigration law and practice was largely developed within the British Commonwealth; particularly in the ‘old’ Commonwealth countries of Australia, New Zealand, South Africa and Canada. These countries were the first to adopt all of the legal sanctions we still use to control immigration namely:
- the imposition of visas (the requirement that certain passengers obtain formal permission to travel to as well as to enter their countries);
- carrier sanctions (fines on shipping agents and captains (now airlines and lorries) for bringing in too many immigrants or unvisaed immigrants) and
- post-arrival sanctions in the form of discriminatory employment, taxation and strict nationality laws to prevent the social absorption of certain immigrants.
Each and all of these Commonwealth countries (and from the 1880s the United States) were focussed on excluding non-European immigrants, particularly the indentured workers from south Asia or the ‘free’ immigrants from southern China.
Within the British Empire (as it then was) legal exclusion of certain immigrants required inventive law-making as many if not most of the immigrants sought to be controlled or excluded were British subjects travelling from one British colony to another. The British Commonwealth then operated as a free movement zone, much as Europe does today. From the 1880s courts within the common-law system, including the Privy Council, began enunciating a legal principle or presumption ostensibly extracted from international law, that each nation State has the right to admit or deny entry to any and all foreign nationals. The Commonwealth subjects from Hong Kong or India migrating to Australia, Canada or South Africa were not ‘foreign’ but (as British subjects seeking to enter British colonies) had the same nationality as those in the reception country. In response, from the 1990s Canada, South Africa, New Zealand and Australia began developing new legal tests for exclusion - language/ ‘dictation’ and other tests – such that if the Asian workers failed their English language, or in one celebrated case, their test in Scottish Gaelic, they were excluded.
We now rely on nationality as the basis for immigration entry and exclusion; although we still use language and now ‘points’ (occupational and income) tests for assessment and selection. Immigration objectives have been the justification for redefining nationality. Thus we have different types of British citizenship, some which afford free access to the UK, and others which don’t carry any immigration entry rights. And as an echo of the old free movement regime in the British Commonwealth we now have numbers of free movement zones in Europe, the Americas and Africa where certain nationalities have residence and work rights and others are controlled. These supra-national arrangements may in time foster new identities.
This (rather lengthy) digression is the background against which our response to migrant journeys has changed. Immigration is less about travel than compliance with law and bureaucracy. In my study of nineteenth century Chinese immigrants, it was clear that immigrants dealt with immigration regulation by large scale evasion. The children of Chinese immigrants whom I interviewed had been told of the rigours and perils of the family journey to Australia; but they also had been schooled to maintain the false family identity and history constructed around the immigration rules and knew they must preserve these identities when questioned by government officials. To evade the visa requirement, Chinese immigrants used their given names as family or surnames and thus visas issued to an ‘Ah Chong’ could be circulated and re-used by anyone adopting this name. These immigration identities frequently were fixed and the families I interviewed (the second generation) often had no idea of their real family name or family village. They were aware that the family identity was created and maintained for immigration purposes. Their real family identity was lost.
Immigration as between many developing countries is still an informal, self-selected process. The immigration to developed countries is a mix of the formal/ bureaucratic and the informal and irregular.
I could not begin to count the number of clients I have represented who entered the UK in lorries, under railway coaches, hidden in cars or ships or who used false documents to enter by airlines. In many countries migrant agents make regular visits to source villages and sign up contenders. Nuns and priests frequently ferry children out of Africa. Trafficking networks comprise many small operatives, some who arrange the documentation; others who liaise with local officials, or who escort the immigrants through airport or border procedures. We now have extensive documentation of migrant journeys but this documentation is maintained on government files and has a clear control function. When applicants first make their application to remain in the UK on asylum, human rights or family grounds, they are ‘screened’ – that is interviewed in some depth concerning their journey to the UK. They are asked about stop-overs, the uniforms of airport or train staff; the cargo on board their lorries, the colour of their passports, their food, toilet arrangements and the names of any agents. These accounts provide immigration departments with intelligence about trafficking routes or become the evidence used for a prosecution of the applicant – who are now increasingly being charged, convicted, imprisoned and then deported for their use of false identity documents.
It is interesting to ponder whether governments in the developed world will ever eradicate these informal travel routes. They seem determined to do so. Immigration rules are becoming more and more restrictive; the identification arrangements more elaborate and intrusive and the penalties for irregular immigration more extreme.
From my experience I consider we lose a great deal if we eradicate self selecting migration. I am so often struck at the fortitude, courage and endurance of my clients. It will be a loss if these immigration networks are lost before we properly study them as a social phenomenon. I am not referring here to the sex or labour trafficking networks which are most often run by criminal gangs and very frequently expose their victims to abuse and violence enroute and after their arrival in the host country. I am concerned with the entrepreneurs who simply facilitate the travel of self-selecting migrants and refugees. There are certain features of these networks that I am aware of through my clients that deserve close attention. These would include:
- The community of agents and travellers. There appear to be an eclectic mix of people involved in the trade. One might have a Turkish agent escorting Somalis or a Russian bringing Vietnamese. Those travelling overland by lorry or by ship are often mixed nationality groups – for example a single lorry might carry Iraqi, Albanian and Chinese.
- I see only the migrants who safely reached their destination. We are all aware of the many lives lost on migrant journeys; but of my clients I am generally struck at how their personal safety was protected enroute. Young single women are not molested; fellow travellers rarely interact and certainly respect privacy; the migrants are provided with food, bags for toileting and occasional fresh air. On long overland journeys this can involve multiple agents, changes of lorry and passengers added or reaching destinations. The agents are the Thomas Cooks of this alternative travel package. They do rather more for their money than the established version.
- We have little evidence concerning or understanding of how the immigrants experience these journeys. In my representation, the journey features only as a basis for challenging a client’s credibility – their account of the journey is challenged as part of a general discrediting of their claims to be at risk in their home country. Most agents tell clients not to disclose information about the journey. In consequence we know little of how these immigrants experienced the journey, whether it left them fearful or with a sense of accomplishment.
- I am also conscious of the associated experience of immigration process, which immigrants then experience on arrival– the repeat immigration interviews, the appeal procedure, solicitor, medical and court interviews. Some are sent to immigration detention. Again we have little real analysis of the capacity and understanding of our clients to deal with these processes. I often try to remind immigration judges that many of the young women (say from Somalia) will never have lived outside a small familiar social circle, will have no experience in ordering, sequencing and narrating her life experiences, and should not be seen as untruthful, when in fact the deficits in her account spring from a lack of experience with our processes. I can see the difficulties such applicants have with immigration process; it would be good to have some studies which might assist to establish sensitive and congruent vetting procedures. For those who have experienced torture or persecution, repeat questioning (even when well-intended) involves revisiting the events. We have no idea how damaging, how distressing these processes are.
From my vantage point I can see how immigration law has distorted the natural processes of immigration. Social anthropologists may have insights and suggestions.
Immigration Decision-making and Anthropology
I want to conclude this contribution by encouraging anthropologists to be available to assist in immigration decision-making. It is necessarily a close association. We already use numbers of established anthropologists as experts in asylum cases. They provide vital evidence on a wide range of issues - clan structures and relationships in Somalia, genital cutting practices, family relationships, child custody practices, military discipline, honour killings – the list is long and covers almost every country and community. Anthropological expertise is required because of the precise social issues in contention in asylum and some immigration cases. The Home Office and Asylum and Immigration Tribunal may have to decide whether Sierra Leonean soweis (the genital cutters) are appointed on a hereditary basis, whether a young woman can resist the appointment and can safely relocate in another part of Sierra Leone if she defies the village elders concerning this appointment. Tribunals are frequently dealing with relocation issues – if a person is at risk in their home area , can they safely relocate. For many young , single women this involves as assessment of their skills, whether they can access community support outside their home area, and whether they can remain anonymous in the new location. I have had cases where the applicant’s identity is unknown and anthropologists were instructed to ‘read’ her scarification marks to give some clues on her place of origin.
Being an expert in asylum/immigration appeals can be difficult. The Home Office and Tribunal scepticism is visited not only on applicants but also their medical and country experts. Even so, such expert assessments are critical to proper understanding of cases.
As a telling example of necessary anthropological evidence, its sceptical reception by the Tribunal and validation by the Court of Appeal, there is not better case example than HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 (20 July 2006) (available on www.bailii.org/ew/cases)
The case involved a young Sierra Leonean man from the Temne tribe who had been captured and partially initiated by a secret society, the Wunde. He claimed to be at risk from his own tribe and the Wunde, as his scarification marks showed his partial initiation. As the Court summarised, there was expert evidence presented in this case on these issues:
‘.. there was a report from Professor Melissa Leach of the University of Sussex, who has a doctorate “based on two years of field work research in Sierra Leone in the late 1980s”, and who made subsequent visits to that country during the following decade. She said that she remained in close touch with what was going on in that country while working in neighbouring Guinea. She considered herself “well placed to comment on [HK’s] appeal” and it is noteworthy that one of her books, published in 1994, refers to the Mende in its title.
She explained that the Wunde are one of a number of secret societies in Sierra Leone, and that they “control particular spirits which they deploy in rituals” including “initiation rituals held in special parts of the bush”. She went on to explain that “virtually all Mende boys and girls are initiated”, as well as people who aspire to posts in the Sierra Leone government and administration. She also said that the power of such societies is “deeply respected and feared”. She explained that little was known about “precise events and activities except by those who had been initiated” because “initiates are under strict orders not to reveal what they saw in the bush at pain of death”.
She went on to say that the location of the initiation described by HK and the warning sign of “three leaves on a path” were consistent with her understanding and experience. As to the person who helped HK escape, the evidence that he spoke Temne was, she thought, not unlikely, because “the Bo area… is close to the northern border where Mende country shades into Temne country, and, as I know from living there, it is common to encounter people with one parent of each or who speak both languages”. She went on to say that HK’s evidence “that he saw skulls and body parts in the bush” was consistent with the reputation of the Wunde “for performing human sacrifices and for using body parts in a variety of rituals”. She thought the three leaves HK said he saw on the path were consistent with the signs used by the Wunde.
While she could not say anything useful about HK having to place his penis in a hole, Professor Leach could “confirm that biting ants have long been a stock in trade form of torture and punishment among Mende people”. While she could not “comment authoritatively on the precise scarification”, Professor Leach thought that the suggestion that the three scars on the left side of HK’s chest resulted from a Wunde initiation ceremony was “entirely plausible”.
Professor Leach went on to “opine that scars only on one side would mark [HK] out as someone who had escaped halfway through an initiation ritual”. She described this as “a very problematic position” because “Wunde society members – and possibly other Mende men – would view him as a threat to their interests. They would probably be keen to re-capture him either to silence him or to complete the initiation process.” She was sceptical about HK being protected, because most “officials such as police officers… are afraid of the Wunde society, and in my opinion resist becoming involved.” She explained that “high ranking national politicians and other important people [in Sierra Leone] are Wunde members”. She also said that as “a single young man with no family connections”, HK’s “family circumstances thus enhance his vulnerability.”
In a subsequent report, Professor Leach described HK’s “claims as plausible”. She also said that, while she could not “say with authority… exactly what would happen should he be recaptured by [members of the Wunde], I do believe that he would be right to live in a state of fear and uncertainty… from one of the powerful and secretive cultural and political groups in the upper Guinea sub region.”
The Court of Appeal made important observations on the nature of fact finding in the immigration jurisdiction and the particular difficulties this presents for Courts and tribunals. Again these observations are worth quoting in full:
The difficulty of the fact-finding exercise is particularly acute in asylum cases…The standard of proof to be applied for the purpose of assessing the appellant’s fear of persecution is low. The choice is not normally which of two parties to believe, but whether or not to believe the appellant. Relatively unusually for an English Judge, an Immigration Judge has an almost inquisitorial function, although he has none of the evidence-gathering or other investigatory powers of an inquisitorial Judge. That is a particularly acute problem in cases where the evidence is pretty unsatisfactory in extent, quality and presentation, which is particularly true of asylum cases. That is normally through nobody’s fault: it is the nature of the beast.
Further, in many asylum cases, some, even most, of the appellant’s story may seem inherently unlikely but that does not mean that it is untrue. The ingredients of the story, and the story as a whole, have to be considered against the available country evidence and reliable expert evidence, and other familiar factors, such as consistency with what the appellant has said before, and with other factual evidence (where there is any).
Inherent probability, which may be helpful in many domestic cases, can be a dangerous, even a wholly inappropriate, factor to rely on in some asylum cases. Much of the evidence will be referable to societies with customs and circumstances which are very different from those of which the members of the fact-finding tribunal have any (even second-hand) experience. Indeed, it is likely that the country which an asylum-seeker has left will be suffering from the sort of problems and dislocations with which the overwhelming majority of residents of this country will be wholly unfamiliar. The point is well made in Hathaway on Law of Refugee Status (1991) at page 81:
“In assessing the general human rights information, decision-makers must constantly be on guard to avoid implicitly recharacterizing the nature of the risk based on their own perceptions of reasonability.”
Inherent improbability in the context of asylum cases was discussed at some length by Lord Brodie in Awala –v- Secretary of State [2005] CSOH 73. At paragraph 22, he pointed out that it was “not proper to reject an applicant’s account merely on the basis that it is not credible or not plausible. To say that an applicant’s account is not credible is to state a conclusion” (emphasis added). At paragraph 24, he said that rejection of a story on grounds of implausibility must be done “on reasonably drawn inferences and not simply on conjecture or speculation”. He went on to emphasise, as did Pill LJ in Ghaisari, the entitlement of the fact-finder to rely “on his common sense and his ability, as a practical and informed person, to identify what is or is not plausible”. However, he accepted that “there will be cases where actions which may appear implausible if judged by…Scottish standards, might be plausible when considered within the context of the applicant’s social and cultural background”.
The Court concluded:
Professor Leach was an undoubtedly relevant expert, and she produced what appears to have been a full, balanced, and informed report, which, on a fair reading supported HK’s story, albeit to a limited extent. In particular, to my mind, it supported some aspects of his evidence which might otherwise have seemed dubious (e.g. the existence of the Wunde, the initiation in the bush, the scarring on the chest, the use of biting ants, the presence of body parts and three leaves on the path, the presence of a Temne speaker). … All in all, it does not appear to me that it was appropriate to reject Professor Leach’s evidence as “not of assistance”, because her opinions on specific aspects of HK’s evidence of which she had no direct knowledge were “unanalytical assertions” or “mere speculation”, as the Tribunal did. First, there were specific aspects of HK’s story, which might otherwise have seemed far-fetched, and appropriate to reject, which were supported by Professor Leach’s evidence. Secondly, the description of her views on other aspects of HK’s evidence as “unanalytical assertions” is unreasonably pejorative, and the description as “speculation” is unhelpful. She was plainly an expert, with plenty of experience in the field, and her views, even on those aspects of HK’s evidence of which she honestly admitted she had no knowledge, were based on that expertise and experience. Of course, the Tribunal was not bound to accept her evidence or to hold that it ultimately validated HK’s story. However, to dismiss her views as “not of assistance” appears to me to be simply wrong.
Not all experts undergo dismissal and re-instatement is so clear a fashion as in HK. Even so the case is an excellent example of how important anthropological expertise can be in determining asylum and immigration cases.



