Carol Bohmer and Amy Shuman. Rejecting Refugees: Political Asylum in the 21st Century. London: Routledge, 2007. 304pp. $39.95 (paper), ISBN: 0415773768.
Citizenship is a tricky concept rooted in the relationship between the individual and her or his government. Citizens have a responsibility to respect the state and what Max Weber called its “monopoly of the legitimate use of physical force”; in return, the state guarantees individual rights and respects the right of citizens to participate peacefully in self-government. However, while there is widespread international agreement expressed in human rights treaties that this is the way things ought to be, this is not always the case. Refugee law emerged to protect citizens fleeing persecution by a government which has reneged on this responsibility.
Refugees themselves are of course an age-old phenomenon—after all Moses and the Israelites were once refugees from Egypt. But international law about asylum, and refugees is a relatively new thing. Modern laws about refugee asylum have roots in the oft-told story of the St. Louis, which sailed from Germany in 1939 with over 900 Jews fleeing Hitler. Despite widespread publicity, and attempts by Roosevelt’s White House to strong-arm Cuba into accepting the refugees, in rapid succession Cuba, the United States, and then Canada each denied requests for the refugees to land, and the St. Louis ultimately sailed back to Europe. After the United Kingdom accepted a small proportion of the fleeing Jews, the majority were delivered back to continental Europe, which was shortly thereafter conquered by Hitler’s armies. Several hundred of the refugees from the St. Louis ultimately perished in the Nazi concentration camps.
After the Holocaust and World War II, experiences like that of the St. Louis refugees were highlighted when diplomats created international laws promising that anyone fleeing a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a “social group” has a right to asylum. Beginning in 1951, versions of this guarantee were inserted into international treaties, and the laws of many nations.
But of course as is the case with any new legal doctrine, the devil is in the details. Concepts like “well-grounded fear” and “social group” have ample maneuvering room for legal experts to argue both on behalf of people making asylum claims, and government officials seeking to protect modern welfare states from fraud. This is why Carol Bohmer and Amy Shuman wrote Rejecting Refugees: Political Asylum in the 21st Century. Bohmer is a lawyer and sociologist who has worked with asylum seekers in Ohio to develop the stories which, in the context of the courtroom, they hope become literal ‘passports to freedom.’ For her part, Shuman’s background as a folklorist is particularly helpful as the authors analyse how refugee claims for asylum rights emerge. Rejecting Refugees, then, is about the interactions between asylum applicants, and the cases they present to asylum judges in the United States, and to the Secretary of State for the Home Department in the United Kingdom. As the authors point out, these stories emerge in the interaction between mutually distrustful asylum seekers and the immigration bureaucracies enforcing laws created for conservative risk-averse publics. The result is a strange dance in which stories emerge about why, how, and for whom asylum claims should be granted. Thus, Bohmer and Shuman aim to untangle how the creation of stories exposes the injustices in the asylum systems of the United States and United Kingdom, particularly for the many impoverished asylum seekers.
The Dance between Asylum Lawyers, Asylum Judges, and Refugees
Refugee claims and counter-claims begin with the memories of the Holocaust, and the context of the Cold War. However while embarrassment about the failure the Allies to protect fleeing Jewish refugees, like those of the St. Louis, provided the initial impetus for refugee law, the Cold War was the political context for the manner in which asylum law developed. Pointedly, refugees escaping from behind the Iron Curtain highlighted the righteousness of the West’s political cause as a guarantor of human rights. As a result, refugees, many of those who were skilled and middle class when they fled Communist Bloc countries, were welcomed in the 1950s and 1960s using the legal instruments of the new asylum laws. The refugees from behind the Iron Curtain, then, were a low-cost way for the democratic west to underscore the centrality of the human rights narrative in their confrontation with the Communist east. Low cost because ultimately between the 1940s and 1970s, the walls and gun towers of the Soviet Bloc effectively bottled up potential refugees from Eastern European and the Asian Communist regimes.
By the 1970s, however, refugee flight shifted from Europe to the decolonized countries of Asia, Africa, and Latin America. This shift posed an unexpected legal conundrum for the administration of asylum law because, rights established in the context of the Cold War were applicable to new situations, including the flight of masses of poor Indochinese at the end of the Vietnam War, and others fleeing the wars of de-colonization in Africa and Asia. This created a legal-ethical trap for how asylum laws of both the US and UK were administered.
But these new refugees were more expensive for host country budgets. First there were more of them, and secondly many had been rural peasant farmers. Poor and unskilled in the ways of the West, they presented an ethical dilemma which was quickly framed as a legal issue for asylum cases: Were refugees fleeing “persecution,” or were they fleeing “economics?” If the former, they would be granted asylum, a residence permit, and temporary welfare benefits. If the latter, they would be summarily deported. And a second issue was raised by those sceptical of asylum claims, particularly those who fled after the fall of the Iron Curtain in 1989. Maybe, they reasoned, asylum seekers were fleeing “prosecution” by a legitimated non-Communist government which was simply cracking down on criminal activities, and therefore subject to extradition rather than asylum.
The needs to address such dilemmas quickly became the basis upon which refugees shaped their pleas. And in response, bureaucratic rules were created by legal minds to accommodate the tension between a sceptical Western public, and the legitimate claims of asylum seekers. The narratives that the refugees constructed to meet the bureaucratic rules resulted in patterned explanations for how refugee stories are presented.
The Structure of Refugee Stories
As Bohmer and Shuman relate, the stories refugees tell in asylum hearings are structured by the intricate bureaucratic regulations which demand coherence, rationalized explanation, and documentation. But as the interviews described by Bohmer and Shuman demonstrate, authentic refugee stories about killings, amputations, escapes, betrayals, rapes, and shootings are rarely coherent, rational, or documented. In fact authentic refugee stories are often quite incoherent. Questions about the status of family members who have died or disappeared produce the ramblings of the traumatized. Refugees also have doubts about their culpability in their misfortunes, and wish to hide embarrassing deceptions undertaken to facilitate escape.
For example, Mustapha escaped from Sierra Leone on a ship in 2000, and described his travails to Bohner in the following fashion:
Mustapha: The rebels were killing them, cut hands, that’s why I left the country. They cut hands when you catch the person. These people were just doing things.
Carol: How did you get out?
Mustapha: I was working at the port. I took a Greek ship. I got a ship.
Carol: How did you do that?
Mustapha: I was working on the inside of the ship…When they catch me the other time, they shot me.
Carol: So you’ve been shot by the rebels?
Mustapha: Yes. This was even for nine months. This happened when they came to the city. They ruled for nine months. There was one man, his name was Johnny Koroma. He was in prison, when they came they took him out of prison (p. 44)
Such stories are inherently emotional, confused, and at first glance often seem irrational. But the legalistic asylum system does not recognize confusion and emotion, preferring verifiable facts (this means government issued documents typically by the home country), which can be tested against the law itself, and in the case of Common Law countries like the US and UK, case precedent.
As asylum cases have become more difficult, a cottage industry in the generation of logical stories to match the odd documents available has emerged. But, as the authors note, in the world of asylum seekers, the logical effectiveness of a story is still the only equivalent of a passport asylum seekers have. Thus these stories are carefully developed in a legalistic environment dominated by asylum lawyers, who shape stories to match the expectations of sceptical asylum judges. This of course requires expensive legal counsel which is accessible primarily to the well-heeled and well-connected, whose cases in turn shape the expectations and evaluations of asylum judges for all refugees. Notably, such procedures are much less accessible to the masses of poor traumatized refugees like Mustapha. Caught in-between are the very few lawyers like Shuman, who attempt to bridge this cultural gap pro bono. The result is that refugees who should be granted asylum frequently are not, and those who should not be, may well gain the sympathy of judges because they create the documented rational story and paper trail demanded by the legal system.
Asylum seekers are thus caught in a legalistic Catch-22. Legitimate asylum seekers almost by definition are outside the legal system of at least their home country, and do not have the legitimate travel documents expected by immigration officers. Their story may be their passport to freedom; but the passport works only if it fits the contours of opaque pre-existing case law.
The Unfortunate Hole in Rejecting Refugees
But if the benefit of the doubt goes to the state in asylum cases, what does the state think about this? What are the immigration judges, and the mysterious “Secretary of State,” who writes the UK’s formal asylum letters in the third person, actually thinking when they request police records from despotic countries, upbraid an asylum seeker for traveling on false papers, or deny the claims of a woman fleeing domestic violence because she cannot produce a police report?
Rejecting Refugees does an excellent job in describing the asylum system from the perspective of the social workers and attorneys who represent asylum seekers, and effectively describes the confusions of refugees themselves. As the authors demonstrate well, the system comes across as opaque and arbitrary to legitimate asylum seekers, with its obvious biases toward the well-heeled and well-lawyered.
But the hole in Bohner and Shuman’s story is that there is not similar data from the side of the asylum judges in the US, or the adjudicators of the
Secretary of State in the UK. In large part this is due to the fact that the story they are telling is from the side of the pro bono lawyers, and their asylum seeking clients—implicit is the fact that the quick facile judgments made in the popular press, and presumably by immigration bureaucrats, are over-simplified. But, presumably the system itself is not so opaque to the bureaucracies, judges, and prosecutors processing asylum claims. So, the unanswered question in the book is ultimately, what information and assumptions structure the truth claims of asylum judges, prosecutors, and those who write in the name of the mysterious British Secretary of State for the Home Department when they render a decision? Applying Bohmer’s skill as an interviewer, and Shuman’s skill as a folklorist could do much to assess how the legitimacy of the judges’ experience develop, and shape asylum decisions.
In the inherently adversarial legal systems of the US and UK, the lawyers, social workers, and refugees defending their cases assume a certain level of incompetence, cruelty, and malevolence by the immigration officials making difficult decisions. But this view is necessarily distilled from the hyper-formalized interactions undertaken in legal hearings, and formal documents. Missing in Rejecting Refugees, though, is a sense of how the decisions asylum seekers receive “make sense” in the narratives told from behind the bench.
The question of “What was the judge thinking?” is perhaps beyond this book, which is by itself a solid contribution to the legal sociology of asylum cases. But understanding the asylum judges as human beings is a circumstance crying out for evaluation.
What Kind of Legal Asylum Regime is Really Possible?
As Bohmer and Shuman illustrate, the roots of international asylum law were in World War II, and the failure of Western democracies to recognize the threat totalitarian regimes posed to middle class citizens in German-occupied Europe, and later behind the Iron Curtain. But with first the arrival of peasant refugees from Communist countries in the 1970s, and then the end of the Cold War in 1989, asylum law became more complicated. No longer were refugees convenient chess pieces in the Cold War to be exploited by the West; and no longer were they middle class and ready to adapt to the ways of the West. What Bohner and Shuman in fact describe is a democratization of asylum law that has occurred since the 1970s as Vietnamese peasants fleeing to the United States, Haitian refugees to Canada, Timorese to Australia and a host of other groups showed up on foreign shores asserting recognition from the legal regime established after World War II for Europeans. As became well-established, they too were also victims of persecution, and therefore eligible for asylum protection from forcible repatriation.
Then the broader question left only partly answered by Rejecting Refugees is, what kind of modern asylum system is really possible? Certainly, refugees can expect more protection from forced repatriation from the international refugee relief law, and governments like the US and UK, than Moses and the Israelites did while in the Sinai. But there are still limitations to what the international asylum system can or will do to protect refugee rights. What is more there are clues in Bohmer and Shuman’s book. Most obviously, they point to the need for the state to provide legal advice to refugees who by themselves cannot navigate the morass of laws, regulations, rules, forms, and procedures created by lawyers for other lawyers. But perhaps most critical is the failure of the democracies like the United States and United Kingdom to establish for prosecutors and asylum judges clear and transparent standards of due process, including the provision of legal counsel. Asylum seekers—both those with legitimate claims, and those without—must meet the demands of Western legalism as a prerequisite to establishing a “well-founded fear of persecution.” But as the authors demonstrate well, the system as currently constituted is inherently biased toward the wealthy and well-lawyered, irrespective of the legitimacy of asylum claims.
More importantly, the fact of the matter is that were another St. Louis ever to arrive on the shore of the United States or United Kingdom, coming from, say, Iran, China, Pakistan, or Haiti it would still be routinely turned back in the interests of protecting domestic political concerns, and not on the merits of the individual asylum cases. Indeed, this may have already happened below the radar of the press. But even were the press to intervene as it did with the St. Louis, national interests and diplomatic niceties would probably still prevail, and if it were to arrive in the home country just before another calamity struck, it is still likely that the deportees would disappear, just like the passengers on the St. Louis did in Nazi-occupied Europe.