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LGD 2001 (1) - Claudia Muller-Hoff 1


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Representations of Refugee Women –
Legal Discourse in Europe

Claudia Muller-Hoff

Claudiahoff@hotmail.com

Abstract

This paper develops as analytical framework the concept of law as discursive power, with particular emphasis on the concept of credibility. The subject matter looked at from gender perspective, is the discourse around refugees as a process of British and 'European' self-definition via construction of the 'other'. The primary data collection and analysis comprises the study of legal texts, that outline the discursive landscape, and interviews with seven persons concerned with asylum law from different perspectives, that highlight the ways in which discursive power becomes effective. It is found that 'Europe' creates a humanitarian self-image while pursuing economic protectionism. In order to disguise the implied contradictions, the strategy employed is to 'blame the other' by putting refugees under a general twofold suspicion that:

(a) their asylum claim is not 'genuine'; and

(b) their intention is to abuse the national welfare system. The discourse, however, is gendered. Women's personalities and persecution histories are constructed as outside the legal refugee definition. Hence, there is no need to question their credibility. While my informants challenge the discursive statements, underlying ideas, such as the necessity to protect privileged access of the native population or the illegitimacy of economically motivated flight are more easily accepted.

Keywords: Refugee, Women, Gender, Legal, Discourse, Europe, United Kingdom.


This is a Refereed article published on 21 June 2001.

Citation: Muller-Hoff C, 'Representations of Refugee Women – Legal Discourse in Europe', 2001 (1) Law, Social Justice and Global Development (LGD). <http://elj.warwick.ac.uk/global/issue/2001-1/mullerhoff1.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/muller1/>


1. Introduction

Edward Said explains that we, that is Europeans, undertake a glorifying self-definition by fantasising about an, amongst other things, backward 'Orient', which serves to justify existing power relations[1]. However, to disengage is impossible for the entanglements exist since colonialism and continues in present international political and economic relations. Yet, we need to acknowledge our necessarily Western perspective as partial, subjective and ideologically infiltrated. We must consciously take the process of engaging with 'other' worlds as one of understanding our own world at the same time.

In this paper, rather than following the North-South movements of continuous imperialism since colonialism, I want to look at South-North movements. Looking at ourselves means also to look at myself personally, and I feel myself being very much part of the discourses - in the media, in politics and my personal social environment - around refugees in Europe. So, I will attempt to translate Said's ideas into that context. I will look at how we construct refugees because:

'(b)y exposing the way political communities exclude as well as include (…), we may gain an insight into the nature of these communities'[2].

We construct images about 'aliens' to define ourselves in contrast as Europeans, to build criteria and boundaries that justify belonging and exclusion. This is backed by the observation that after 1989 uncertainties about the notion and identity of 'Europe' developed, which incurred processes of boundary building against the 'other'[3 ]. Furthermore, these constructions are gendered and I want to find out how and why that might be the case.

Much has been written from historical and social scientist perspectives about the social and political discourses around refugees, asylum, national and European identity-building[4]. There is also a considerable amount of literature evaluating the legal regulations around the issue[5]. But to look in this context of discursive construction of the 'self' and the 'other' at law as discourse is an issue that does not seem to have caught much interest, even less so with gender as a criteria of analysis.

It is also believed and accepted that lower number of women asylum seekers is due to the low number of women refugees, and not structurally caused by the legal system of protection, which is comprehensive and gender neutral and, as such, protects women and men equally.

2. Concept and Method – A Different Approach to Law

Law, directly impacts on social realities by the way it is used and perceived by those subjected to it, it orders and, thus, creates, social reality[6]. According to Foucault, the power of law is more prohibitive/repressive and less discursive/productive than other forms of power, for example, scientific discourses. Foucault's idea of discourse departs from the position that language is a dominant structure that creates reality because we cannot envision reality outside the structure of our language[7]. Discourse, then, is the way, in which the exclusionary communication in technical or scientific language produces knowledge about the research objects[8], that are classified into normative categories of 'normal' and 'abnormal'[9]. The resulting imperative of 'normalisation' forms power relations with the 'knowers' at one and the 'known-about non-knowers' at the other end. Foucault argues that this discursive power newly developed in the human sciences[10] and increasingly marginalised the old paradigm, the 'negative' or repressive power of law. The new paradigm is more efficient as it is productive. It forms new knowledge. Rather than imposing penalties for transgressions it rewards for compliance[11] through inclusion and acquisition of the status of 'normality'. Infact law is a technical discourse that similarly exerts not only negative but also positive power through discursive mechanisms.

Foucault further elaborates, that law in regulating conflicts between parties from a third or 'outsider's' perspective implies that a common notion of justice or truth exists, accepted by the parties and beyond, that is, the 'correct' or 'just' resolution exists as an abstract ideal of law, beyond the dispute of the parties[12]. The assumption of an abstract and universal notion of 'truth' or 'justice' puts law beyond challenge. It is accepted as an instrument of the adjudicator, the knower of law's truth, to exert power[13]. Smart also argues that law like the human sciences, employs mechanisms for the production of exclusionary knowledge.

'Law sets the parameters of what is considered normal (…). So law is not simply something we have recourse to at times of duress – it affects our daily lives. We cannot 'opt out' of these legal parameters (…)'[14].

For Smart, this power of law becomes discursively effective beyond the individual case and as a 'positive' force in Foucault's terms[15].

The vehicle for law to exercise power, be it coercive or discursive, is the legal method[16]. Legal reasoning and logic, coherence through reference to precedents, the notions of 'reasonableness' and 'common sense' as common denominators of determination all contribute to the acceptance of law as an authority of higher knowledge. This is similar to the way in which scientific findings are presented as truth on the basis of scientific methods established as logically or denknotwendig leading us to the 'discovery' of a pre-existing, discoverable truth.

2.1 The Concept of Credibility

Law as discourse is about declaring subjective truths invalid and presenting law's statement as 'the truth'. This is reflected in the very concept of credibility that hierarchises, acknowledges and disqualifies knowledge[17]. To decide upon credibility is to decide upon whether or not 'truth' is spoken. The applicant's or witness' story is not believed if it is not supported by corroborative, 'objective' evidence[18]. What makes it unbelievable is its very subjectivity. Yet, judicial decisions, although built on similarly subjective perspectives[19], become statements of law, that is, 'truth'. The concept of credibility suggests that there are knowers and non-knowers, valid and invalid knowledge and that law provides mechanism to 'discover' them. However, these mechanisms provide, as will be shown, the space to make normative statements outside the scope of law, to set morality standards and to enforce policy decisions and to give them the authority of legal 'knowledge'[20], thus, disguising their subjectivity and challengability.

Considering with Foucault and other postmodernist thinkers that there is no such thing as an objective truth, we need to be aware that to have the power to validate and invalidate knowledge and to determine the criteria for qualification is not a 'natural' or 'logical' condition but an exercise of power.

2.2 Gender as a Category of Inquiry

Refugee law is supposedly gender-neutral. Yet, the definition of refugee in the 1951 Convention[21] offers a male biased concept of political activism[22]. Women's causes for flight and the forms of and grounds for persecution they experience may differ in reality and be assessed differently from those of men[23]. For example, the targeting of women because of their family relations to other persecuted persons, or some women's forms of political activism, such as providing community services to other political activists or not conforming to moral and social norms, are regarded as of a personal, not a political nature[24]. The resulting denial of protection to women refugees relegates to invisibility the reality of women's political persecution. If we consider women as undeserving of protection, we consider their actions as not legitimate and we endorse the discriminating norms the resistance which forced them to flee.

Most standard literature on refugee law still ignores the relevance of gender issues, which, again, has been said to legitimise women's exclusion from the legal system of refugee protection[25]. I hope this analysis contributes to our understanding of how the law's constructions of the 'other' are gendered.

The Immigration Act 1971 and the following amendments in accordance with EU law 1993, 1996 and 1999 as well as the Immigration Rules (HC 395) are of primary relevance. While the absence of gender-specific legislation might in itself be telling in terms of images about refugee women.

3. Political and Legal Context

The 1980s and 1990s in Western Europe are characterised by two transitional developments, first, an increasing integration within the framework of the EEC and later EU, secondly, an increasing movement of people into EU territory, characteristic of which is a polarisation between highly skilled labour migrants and capital investors on the one and asylum seekers and clandestine entrants on the other hand[26]. Both processes are framed in legislative developments, most recently the Treaty of Amsterdam, that influence and shape public opinion.

Meanwhile, a vast amount of 'European' legislation and agreements exists to harmonise the member states' approaches to asylum. Two major tendencies can be detected in that framework, firstly, the 'burden' sharing and shifting, that implies from an individual country's perspective, the aim to prevent entry in the first place. The Dublin Convention of 1997 establishing a system of exclusive competencies for the adjudication of asylum claims aims at equally distributing the 'burden' through common standards of reception, qualification and procedure. The Amsterdam Treaty[27] goes beyond harmonisation and establishes new legislative competencies on asylum and refugee issues that had formerly belonged to the area of intergovernmental co-operation[28]. Additionally, mono-directional readmission agreements, especially with Central and Eastern European countries, create a 'buffer zone'[29].

Secondly, where entry has not successfully been prevented, numbers of applicants are being reduced by speeding up the determination process through standardised decision-making and restrictions of appeal rights. Underlying is the generalised doubt of the applicant's 'genuineness'. Central provisions, which, like the Dublin Convention, only apply to Convention, not to de facto refugees[30], are the Council Resolution (EC) establishing the Safe Third Country Rule[31 ], the Resolution on Manifestly Unfounded Applications for Asylum and the Conclusions on countries in which there is generally no risk of persecution[32]. Furthermore, member states negotiated an obligatory refutable presumption to regard each other as safe countries of origin[33] that indicates that asylum law is more influenced by international relations than by human rights concerns.

In contrast, substantial regulations are not considered a policy priority[34] and no binding laws exist so far[35]. Apparently economic protectionism is considered far more important than human rights issues.

3.1 The UK Legal Framework

The UK Parliament amended the Immigration Act 1971 through the Asylum and Immigration Appeals Act 1993, the Asylum and Immigration Act 1996 and the Asylum and Immigration Act 1999. The change in the titles illustrates the heightened importance attached to the issue. This parallels the 'European' developments, which motivated the changes in UK asylum law[36].

The purposes of all three acts are to reduce backlogs and costs caused by the high number of asylum applications, the majority of which are presumed to be not genuine. Hence, 'bogus' claims should be prevented or rejected more effectively and 'welcome' entrants should be admitted more quickly[37]. They focus on three main strategies, deterrence, acceleration and demonisation, all of which translate into practice by employing legal 'filter mechanisms'. One 'filter' mechanism for the deterrence strategy to prevent entry - next to, for example, visa restrictions[38] - is the exclusion from social security benefits and the formal labour market, which has a class-differential impact, 'filtering in' those who personify an economic surplus[39]. The acceleration strategy uses as 'filters' newly developed categories, e.g. 'safe' countries or 'unfounded' claims, whose refutable presumptions shift the burden of proof to the applicant and put her under a general suspicion of being 'bogus'[40] and so justify fast track procedures. Thirdly, asylum seekers are demonised to ensure popular support for the above measures. As 'filters' function, for example, the increasing criminalisation of asylum seekers and those who associate with and support them[41], which - in combination with existing prejudicial attitudes - leads to racist exclusion from the labour market, to social isolation[42] and to a common perception of the immigrant as threat. That is what Harvey described as privatisation of immigration control[43].

3.2 Understanding the Current Trends of Law and Policy

The realities of refugee movements are changing. Today not only individuals flee individualised political persecution but also larger groups of people flee economic deprivation, ecological disasters, civil wars, etc.[44]. Yet, the legal responses of the recipient countries do not substantially address the frequently stated outdated-ness of the 1951 Convention's refugee definition. Its Euro-centric focus on first generation human rights and its requirements of individualised persecution and the crossing of borders - the 'exilic bias' - leave the majority of refugees, including most women refugees, unprotected[45]. Instead, refugee law - supposedly the 'humanitarian exception'[46] to immigration law, which regulates the membership of political and economic communities according to utilitarian principles[47] - more and more deals with national interests, such as administrational resource management, economic-cost analyses and security considerations[48]. Also, the social construction of the asylum seeker shifted during the late 1980s from the 'dissident hero fleeing totalitarianism' of the Cold War period to the 'bogus' claimant who unfairly seeks a 'better life'[49]. Yet, while preserving economic self-interest, 'Europe' at the same time tries to celebrate a political culture of 'civilisation' that includes concepts of liberalism and humanitarianism.

Both are processes of self-definition that require various mechanisms of ex- and inclusion[50]. Their different objectives lead to frictions in policies around asylum. While asylum 'proves' 'Europe's' advanced humanitarianism and human rights concern compared to other 'backward' nations, refugees, on the other hand, are a great economic 'burden' and that is 'incompatible' with the economic self-interest. One way to overcome that friction is to construct refugees so that they fall outside the definition of the 1951 Convention. So, they are constructed to have migrated in the unjustified search for 'economic betterment'[51] as opposed to acknowledging economic deprivation as one among many legitimate causes. The legal language defines them as asylum applicants or claimants[52] and as 'economic migrants', undeserving of protection. Only the very few who are granted asylum[53], i.e. who can prove to comply with the very narrow Geneva definition are assigned the status of a 'refugee'. This construct of a 'legal refugee' excludes most refugees from its scope; it denies them not only protection but also their identities as refugees. Finally, a moral judgement adopts a critical function in this discourse. To be outside the scope of the 1951 Convention, to be a non-'genuine' refugee is considered illegitimate. It is equated with being an 'economic migrant', which has become a synonym for being 'fraudulent', 'parasitic', 'bogus'[54]. Where people cannot fit their lives into the legal definition but still seek safety in this country, they have to transgress those limitations. Yet, we see this as their fault and proof of their moral deviance rather than as a definitional problem of law. The discursive devaluation of the refugee allows to depart from moral imperatives and justifies her exclusion[55], even stronger so if it is pronounced with the authority of the law.

3.3 Background to the Laws

The Government's White Paper 'Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum'[56] provides the background for the new Asylum and Immigration Act 1999[57].

It sets out to discuss the increase in immigration. The trend is attributed to mainly economic motives and to globalisation, which promotes the spread of information and mobility[58]. Right at the outset the Paper makes a political distinction between 'welcome' migrants or 'visitors', as they are called, who travel to England for business or holiday purposes[59] and less revenue-generating 'unwelcome' so-called 'economic migrants' who seek a 'better life'[60]. The Paper then explains that 'economic migrants', who supposedly do not satisfy the conditions for legal entry would still seek to enter by:

'exploit(ing)' every possible opportunity, such as the 'use of fraudulent documentation, entering into a sham marriage or (…) abuse of the asylum process'[61].

So, the critical link between economic migration and asylum abuse is made, providing the justification for harshly exclusionary policies. In discussing asylum statistics, the increases of asylum applications in the years 1994, 1995, 1997 and 1998 stand uncommented, the decreases in 1991, 1992/3 and 1996 are stated together with the legislative measures in the respective years such as the reductions in reception support and benefits for asylum seekers[62], suggesting a causal relation, the success of deterrence strategies. Since those are aimed at non-'genuine', 'economic' refugees, the claimed success is used as evidence for the assumption that large proportions of claimants are 'bogus' refugees. The high number of unsuccessful asylum applications and appeals are used as 'evidence' the 'abuse of the system demonstrated by these figures'[63]. Already the distinction is gendered as it neglects the category of 'family dependants', for example, into which the majority of female immigrants are registered, who are consequently invisibilised. This also means, however, that the whole pejorative discourses around 'economic migrants' do not equally apply to women refugees.

In Part 3, delays, backlogs and high, especially support - costs are identified as the central problems of the asylum system[64]. Therefore, the determination procedures must be accelerated ('faster') and applicants effectively rejected ('firmer'). The third directive of 'fairness' is ticked off the list with a simple reference to the Human Rights bill without substantive elaboration. In contrast, The Paper celebrates Britain as a 'multi-cultural and multi-racial society'[65], where the acquisition of citizenship should be encouraged.

Interestingly, the first and supposedly most factual chapter contains the most manipulative communication strategies of the entire Paper. Statistical and interpretative information are linked to connote the latter with the notions of objectivity and truth of the former. In that way, economic migration is constructed as generally illegitimate and always linked to fraudulence. This construct is so overemphasised that asylum applicants can barely be envisaged any more as 'genuine'.

At the same time, the UK society is depicted as economically successful, yet in need of protection against a great threat of exploiters. Its multi-culturalism and respect for human rights prove an advanced standard of civilisation.

4. Genuineness and Credibility

Credibility assessments are another mechanism to filter out the supposed 'bogus' claimants. The concept is interrelated with that of genuineness and both lie at the very heart of the British and European asylum law and policy discourse.

Weston suggests that:

'(t)he tendency is to find incredible that which is not understood'[66].

Credibility assessments are discretionary decisions, yet discretion can be a euphemism for the lack of a thorough investigation and allows for prejudicial attitudes to influence judgements[67]. Credibility assessments often lack generally applied standards and methodology and are made ad hoc, according to 'instinct' or 'experience'[68].

Common criteria for assessing credibility are 1. internal consistency, 2. external consistency with information from other sources, and, 3. 'inherent implausibility'[69]. Criteria for the latter are, for example, credit and demeanour[70], which rely on subjective perceptions of what is supposed to be 'normal' or 'reasonable' behaviour[71]. These notions are seen as universal, their cultural embeddedness is not always acknowledged. That leaves the person whose credibility is assessed vulnerable to prejudicial bias[72]. The more so, the more different her background is, in terms of, for example, ethnic origin, 'race', class, gender, ideological or political position. Bingham points out that the tests used for establishing incredibility and dishonesty are the same[73], suggesting that no distinction is made between a technical question of whether information has evidence value and the moral judgement on the personality of the assessed.

From a gender perspective credibility has already been discussed in the context of rape trials where special rules of assessment have been developed[74], such as the 'corroborative warning', that had to be given to the jury, suggesting a likelihood of uncorroborated evidence of the witness to be unreliable. Since 1994 the warning is no longer obligatory, but it is still permitted and continues to be used[75]. Furthermore, recourse is taken to expectations about 'normal' behaviour, such as the promptness of complaints and supposed 'normal' emotional and psychological reactions to rape[76 ]. Yet, rape trauma research shows that there is no identifiable 'normal' reaction to rape[77].

The assumption of a higher propensity in rape cases for false allegations, which failed to gain empirical support[78], resembles the general presumption about asylum-seekers to be non-genuine fraudulent abusers of the system. Also in asylum cases credibility is a central issue because corroborative evidence often is unavailable[79]. In rape cases, the assumed incredibility is partly attributed to unsupported assumptions about the female psyche, i.e. about feelings of neurosis, jealousy, revenge, spite, shame etc as a driving factor[80], while sometimes it is believed to be so obviously true that it needs no reasoning[81]. In asylum cases different backgrounds in experience, culture etc. exacerbate the possibility of understanding on both sides. Cultural differences in meanings of behaviour, for example as to eye contact, might cause misunderstandings[82]. Imprecise translation and the impossibility to translate certain cultural meanings of words may result in wrong judgements about inconsistency[83]. Women, who for feelings of shame do not fully or immediately reveal, for example, experiences of sexual abuse, are perceived as incredible[84]. Moreover, the effects of post-traumatic stress disorder (PTSD) - impaired memory, difficulty in concentrating, numbing of responsiveness - might result in discrepancies, vagueness, delays and detachment, which are easily taken as indications for untruthfulness[85]. In other words, ethnocentric and 'gendercentric' assumptions about 'normal' behaviour cannot integrate the differences that the mentioned factors constitute. Finally, delays in lodging the application are as a rule considered to raise doubts about credibility[86], although the Immigration Appeals Tribunal opposed that because plausibility may not be assessed in disregard of the context[87].

The UNHCR Handbook acknowledges these difficulties and suggests lowering the standard of proof and giving the benefit of doubt to the applicant[88]. It promotes decision-making in the 'spirit of justice and understanding'[89]. Also the House of Lords requires in Sivakumaran only a 'reasonable degree of likelihood'. Ruppel agrees pointing out that any other decision would be intolerable considering the high risk of wrong credibility findings and the potentially severe consequences for the individual applicant[90].

Yet, the Refugee Council has detected a 'culture of disbelief' in the Home Office with a:

'disproportionate emphasis being placed (...) on watertight, documented evidence...'[91],

though, unfortunately it has not differentiated this finding according to gender. Also in court, one of the main reasons for rejecting applications, is the 'absence of subjective fear', that is the denial of credibility[92]. An overemphasis on credibility may inhibit the thoroughness of the investigation of facts, for which objective evidence is available[93]. Once credibility is rejected, no further investigation is undertaken[94], not considering that it is inaccurate to judge from a partial finding on the whole account[95]. Furthermore, adjudicators have stated that 'safe country of origin' cases are 'weak' and, hence, easier to decide[96].

As stated earlier, incredibility is not distinguished from dishonesty. So, every finding implies a moral judgement. Non-genuineness is associated with the migrant's supposed economic motivation and a 'fraudulent', 'criminal', 'parasitic' personality.

We can see the parallels in both examples. While in rape cases the female is 'othered' as abnormally neurotic, jealous and vindictive and, as such, incredible, in order to protect the patriarchal system against challenges, in asylum cases also an 'othering' takes place, that is similarly lacking scientific support. The claimant is constructed as fraudulent, parasitic and notoriously dishonest, in order to protect the affluent nation from the supposed economic threat of migrants.

Secondly, since the receiving society, i.e. the European culture and legal system adhere to a patriarchal ideology where male perceptions are viewed as normal[97], the assumption suggests itself that women's accounts generally, and even more so in a cumulative sense, those of female asylum applicants from different cultural backgrounds are particularly vulnerable to adverse credibility findings. We will later come back to the question, whether this assumption can be confirmed, i.e. whether the demonising 'othering' is stronger with respect to female asylum seekers.

5. The Structural Exclusion of Women

Some language characteristics are visible throughout the whole legislative framework. First, the asylum applicant or claimant is continuously referred to as 'he'. Although the Immigration Rules, at para. 3, points out that the use of the masculine gender generally includes the feminine, this does not conceal but openly admit the fact that the male image is seen as the general case and that every measure is supposed to apply to and affect women equally. This is certainly problematic, as demonstrates the male refugee concept based on the 1951 Convention[98], that does not cover many situations of women refugees[99] and negates their refugee histories. This was the reason for me to specifically search in case law dealing with women applicants for positive statements of the law about women. Yet, I had to find confirmed the complaints in academic literature and in my interviews that there are few women's asylum applications judging from the very small number of reported cases. Especially cases that discuss credibility, supposedly a central issue and cases of gender-specific asylum claims are scarce[100].

Furthermore, law distinguishes between refugees and asylum seekers. 'Refugee' refers to the Convention[101] and means a person who is unable or legitimately unwilling to return to her home country due to a well-founded fear of persecution for one of the Convention reasons. This is a factual condition, independent from a legal status[102]. An asylum 'applicant' or 'claimant', on the other hand, is defined by the fact that she entered into a legal status determination process[103]. Her existence before the law is reduced to this category and her personality is fragmented. That invisibilises and negates other parts of her identity, to be a refugee, for example, which 'justifies' a treatment in complete disregard of that. While the concept of a 'refugee' structurally excludes many women, the latter category does not. But, while both terms are seen in a reciprocal relationship, i.e. a refugee may apply for and will be granted asylum, and then be legally recognised as a 'refugee' in the sense of the Convention, this does not work for women refugees, who often do neither fulfil the criteria of the Convention definition, nor do they necessarily apply for asylum if they see other ways to find safety, e.g. as 'family dependants'. In fact, to seek other options may even be more promising for women, at least according to the tendency that I found in case law to depoliticise women's persecution stories confirming the Convention concept of the male refugee.

For example in the case of Ogochukwu Chigioke Okonkwo[104], the Nigerian applicant stated that she had been raped and severely mistreated by members of the ruling Muslim army, which amounted to persecution of her as a Christian. The court entirely disregarded the political context and nature of the rape and viewed it as:

'committed without any motive other than merely to seek sexual gratification'[105].

The implicit myth that rape is motivated by sexual desire completely depoliticises this specific and every crime of rape. The judge even compared it with the robbery of a shopkeeper to explain the ordinary criminal character of the offence as he viewed it[106]. The basis of comparison is the very assumption that is supposed to be verified - the lack of a political implication. Thus, it is a fictional 'comparison' that serves to construct the offence as non-political.

Similarly, in Yogashanthi Subramaniam[107], a Tamil applicant from Sri Lanka tried to establish that the rape that she had suffered was a method deliberately employed by the Sri Lankan army to suppress and terrorise the Tamil population[108]. The court found the case, in terms of fact, comparable to that of Sughiandini daughter of Nithiyanandasivam which was cited

'…any attractive young Tamil girl from the Jaffna area might be entitled to asylum …'.

This definition of a group of persecution victims, again, is interesting. It refers to an image of women commonly regarded as sexually desirable. Again we find underlying the myth of rape as an act of sexual desire, again used to diminish its character as violence and, here, as political terror from state representatives.

In the case of Tseganesh Befekadu[109], the applicant claimed persecution because of her own and her father's political activities. After not believing her own political involvement, the court did not even consider whether persecution on the grounds of family relations might amount to a Conventional ground[110].

Where persecution on political grounds is rejected, applicants alternatively argue for the applicability of the category of membership of a particular social group and courts continuously attempt to narrow down the meaning of this open term. For example, in Yogashanthi Subramaniam the court departed from Sughiandini daughter of Nithiyanandasivam . There all ('attractive young') Tamil women from the Jaffna region had been held to constitute a social group although the judge had expressed his unease about the implicated self-commitment of law to admit potentially high numbers of asylum claimants[111]. The judge in Subramaniam, apparently equally unhappy, did not follow, yet without much explanation beyond stating that:

'I do not believe that that is a correct view to take'[112].

This case illustrates how the interests of national sovereignty do not allow decisions about whom to allow into the territory to be imposed by external circumstances, such as persecution and human suffering[113] and how the open terms of the 1951 Convention are 'adjusted' accordingly.

5.1 Exclusion - The Asylum and Immigration Acts

The legislation shows a similarly 'flexible' handling of the Convention. S.2 of the 1993 Act states the primacy of the 1951 Convention, whose preamble refers to the Universal Declaration of Human Rights that by its very title suggests a comprehensive protection scheme[114]. Yet, like for all three Asylum and Immigration Acts the focus of the Act is not humanitarian protection but the reduction of the number of incoming refugees.

The exclusion of in-country (as opposed to port) applicants from social benefits before 1999 meant that who 'delayed' her asylum application was a suspected 'economic migrant', intending to abuse the state support system. That para. 341 (i) of the Immigration Rules questions credibility on the same basis indicates that also incredibility is associated, even causally linked with 'economic migration'.

While alleviating this provision, the 1999 Act still does not entitle destitute applicants to social benefits, i.e. to basic economic human rights.

S.96 (3) of the 1999 Act provides that, as a rule, maintenance support is to be given largely in kind. This direct enforcement of conditions of use reveals a general suspicion that even if the entitlement to income support has been established, it might still not exist, i.e. the recipient might not need and use the means for basic maintenance.

The deterrence strategy apparently does not address very affluent refugees, 'genuine' or not. The provisions, hence, construct two categories of asylum seekers, the 'genuine', wealthy and law-abiding ones and the not 'genuine', less privileged and fraudulent ones.

There are several ways in which asylum seekers are 'demonised', i.e. morally condemned as socially intolerable and deviant. For example, new immigration offence provisions protect norms that are merely administrational or formal in nature, i.e. they do not embody material values[115]. Yet, the offender is labelled a criminal, somebody who threatens peaceful social co-existence. Extensive police powers such as arresting, finger printing and searching asylum seekers, are routinely applied measures that are associated with the treatment of suspected criminal offenders[116]. Third parties are increasingly criminalised in new carriers' and employers' liability provisions. Even assisting asylum seekers in their not (yet) criminal attempt to enter the UK can be a criminal offence[117]. Where the association with asylum seekers is criminalised, the public perceives them as threatening rather than as in need of solidarity and support[118]. The result is social exclusion, isolation and racial hatred.

Determinations are speeded up by regulating standardised presumptions against the validity of the claim such as 'safe third countries'[119], 'safe countries of origin' and other so-called 'manifestly unfounded cases', cases where, for example, no reasonable explanation for producing no or a false passport is given, cases where false evidence is submitted, or claims that are considered 'fraudulent' or 'frivolous'[120]. Those presumptions are refutable, yet, this requires special proof of the applicant, which is inconsistent with the UNHCR recommendations of low standards of proof and decision-making in the 'spirit of justice and understanding'[121], and suggests that the applicant is undeserving of such treatment because he is not genuine. In some cases, appeal rights were abolished[122 ], in others time limits for appeals cut down to two to seven days[123].

All these strategies do not to the same extent target at and directly apply to women because they are not seen as 'economic migrants' or as 'bogus' asylum seekers and are, in fact, more frequently registered as 'family dependants'.

5.2 Determination of Credibility

The Immigration Rules of 1994 formulate conditions for leave to enter or remain and asylum. Para. 341 on credibility deserve closer examination. It enumerates reasons for denying credibility in a standardised manner. Individualised considerations or 'reasonable explanations' may only in some cases be admitted to refute the presumption.

Firstly, as incredible is considered who fails to immediately apply for asylum upon entry. To submit to the regulation of law is a necessary proof of credibility. Whoever seeks safety outside the system of law – and many might choose to do so after having experienced the state and legal system as untrustworthy - cannot qualify as genuinely persecuted. Yet, obviously any applicant, 'genuine' or not, has an interest in prolonging her stay. Whichever strategy she chooses, it cannot be taken as indicator for (in)credibility[124].

The second ground – lodging an application after leave to enter has been refused or measures for deportation or removal have been initiated - shows even more clearly how law reduces its subjects to a legal category. For example, who seeks admission as a student, tourist or family dependant is not envisioned as having any other interest in remaining. It does not acknowledge that any leave to remain, no matter on which grounds, fulfils for the time being the interest of a refugee - 'genuine' or not – not to be returned.

Thirdly, false evidence in support of the asylum application and false representations with regard to any matter are grounds to reject credibility. This allows for a moral judgement, declaring that who 'lies' once, 'lies' always, and contradicts the rule of Haji (13046) that credibility findings in one part should not unduly influence findings about other parts of or the entire account[125].

Fourthly, the failure to produce a valid or the use of an invalid passport without 'reasonable explanation' shall raise suspicion, although the 1951 Convention implicitly acknowledges in Art 31, that such circumstances are common in situations of forced migration.

Subparagraph (v) tackles the suppression of documents including passports, which can reveal whether 'safe country' rules apply. However, 'genuine' or not, no applicant wants to be deported. So, her concealment of nationality and travel route does not inform us about the credibility of her material claim. To argue, that if 'genuine', she would not have to fear deportation is to expect from her an idealised understanding of the operation of law that might not be consistent with her experiences.

Activities supposedly inconsistent with previous beliefs or behaviour suggest incredibility according to subparagraph (vi). The legal refugee here is regulated as static personality without regard to changed circumstances or personal developments.

Finally, concurrent applications cause suspicion. While a general distrust in the legal system, might motivate the applicant to employ a multiplicity of strategies, the law views this as seeking the multiple provision of state support. But even then, conclusions on credibility are necessarily arbitrary, as a person's claim of double benefits is an issue completely unrelated to the question of persecution.

We can see that law constructs two opposed personalities, on the one hand, the 'genuine' refugee who trusts in the infallibility of the legal practice to yield just decisions and, being prosperous himself, remains untempted by the apparent wealth in the UK. On the other hand, there is the 'non-genuine' claimant who makes up a persecution story, who moves outside legal norms and whose sole aim is to fraudulently abuse the national benefit and support system.

5.3 Women's Credibility Assessed

Although the immigration rules apply to all immigrants, they are particularly relevant in asylum cases, in which credibility is so central. However, there are only few women's cases dealing with credibility, which might be explained by the fact that many women's applications already fail on 'objective' grounds.

The case of Ladd v. Marshall[126] is not actually an asylum case, yet, a much-cited precedent in asylum cases and illustrative for our purposes. The question at stake was whether a witness' account could be admitted as fresh evidence after her admission to have lied earlier. One of the conditions was that it must be 'apparently credible'[127]. Yet 'a confessed liar cannot usually be accepted as credible'[128]. A moral judgement is made, an incredible personality presumed unless:

'some good reason (is) shown why a lie was told in the first instance' - such as coercion or bribery – 'and good ground given for thinking the witness will tell the truth on the second occasion'[129].

The woman explained that she had lied in support of her husband because she had lived with him in a violent relationship and only after the divorce had she dared to come forward with the truth. That was not accepted as sufficiently coercive[130]. The violence of her relationship was not believed, because certain (not unusual) reactions, such as the woman staying with her husband, were seen as inconsistent. I.e. the woman was portrayed as 'dishonest' because she did not comply with expectations that were based on the male judge's ignorance of her gender-specific experiences. Instead, judges, sometimes, seem to find it more convincing to justify their decision with the 'argument' that they 'simply' do not believe the applicant[131].

Moral judgements of the witness' personality as a liar were taken to allow indiscriminate rejections of the entire account in Tseganesh Befekadu[132], Yogashanthi Subramaniam[133], and Panther[134], in the latter case even against corroborative medical evidence[135]. In that case, the fact, that the applicant had admitted to have lied to the authorities in her home country, was relevant for rejecting her credibility, although the admission referred to an entirely not comparable context[136]. Comments such as: '(there) was (not) any evidence other than her own testimony that she would be at risk' [137]- taken from another case - reveal, that 'dishonesty' is assumed without special indication. This finds its parallel in the 'corroborative warning' in rape cases but it also complies with the manner in which asylum seekers of both genders routinely are suspected to be non-'genuine', so it is not necessarily a gendered way of assessing credibility[138].

6. Interview[139] Analysis

This analysis is based on seven interviews, three of which were made with solicitors in London who are specialised on asylum cases. Three informants came from refugee support organisations in Coventry and Birmingham. I also interviewed a woman refugee who is seeking asylum[140]. The immigration authorities refused an interview. My informants came from various ethnic and also national origins, but, apart from one, they lived permanently in the UK, all but one were women.

6.1 Defining Refugees

When asked to define a refugee, almost all informants distinguished between their personal and another, which the lawyers referred to as 'legal' definition. The personal definitions transcended various limits of the legal one, such as state persecution, transgression of borders, levels of severity of persecution, and the enumeration of flight causes. All these definitions contained an element of compulsion to flee intolerable conditions of living. Not all, but some made the term 'persecution' part of their definition, using it in the sense of the infringement of civil and political human rights, though not necessarily by state actors only. Generally the definitions were not as male-oriented as the Convention definition. One support worker explained her involvement with her organisation with her own refugee history. Judging from her description, she must have been legally categorised as 'family dependent', yet, in referring to herself as refugee she resisted this discursive fragmentation of her personality. Some of my informants stated, that a lot of women 'come as family dependants', that is, they viewed them in terms of a legal category which at the same time made them ignore the women's refugee histories. Similarly, the majority either continuously or at least at some stage during the interview referred to refugees, when talking in a general sense, as 'he'. Yet, it is difficult to assess, whether this thinking in masculine terms derives from the legal discourse or whether it is related to the communicative and cognitive tradition still common in the UK. Yet, some also challenged the presumption, that women are generally more likely to come accompanying a male relative rather than on their own.

Several informants considered economic deprivation as legitimate reason to seek and be granted protection because globalisation caused responsibilities of the North for economic conditions in the South.

An awareness existed that in (legal) practice only the legal definitions are relevant. The insistence on developing alternative concepts, though, indicates that this is not accepted as the only or correct definition. One informant even referred to her own definition as refugees 'in essence', indicating greater validity.

Similar scepticism as to the legitimacy of the legal regime is visible in the suggestion that asylum decisions are not determined by the circumstances of the individual case, but based on the government's international relations with the countries of origin. As one informant put it:

'(…) Afghans, they get it very quickly. Two months, three months, ELR, for four years. It's almost guaranteed (…) because Taliban is a government that most of the Western world would have a problem with, you see? Everyone is really into making a statement against it. And (…) you show that with your own policy regarding asylum'.

As to gender, no differences in determinations were perceived. One informant explained that women from countries, such as Iran, might have more chances to get asylum than men because Iran's negative women's rights record is well publicised in the UK. On the other hand, she pointed at cases of persecution because of family relations, where women are disadvantaged compared with men because they were not considered to be targeted personally.

Noticeable is furthermore, that the asylum applicant, while having a clear concept of a refugee, stated that she was entirely unaware of the legal requirements for asylum, indicating that there might be little correspondence between being a refugee and having legal refugee status.

Several informants made a distinction between law and practice attributing to the former greater authority. So, on a rather abstract level, some - and not only solicitors - expressed trust in law's 'justice' or 'fairness', be it that the asylum law was seen as largely agreeable, be it in the hopes they pinned on the Human Rights Act, be it in a general belief that the rule of law prevails. More critically, one support worker said that asylum law serves the national self-portrayal as a civilised, humanitarian society while, at the same time, it pursues economic protectionism.

6.2 'Economic Migrants' and 'Economic Refugees'

Most of my informants agreed that the terms 'economic refugee' and 'economic migrant' have at large the same meaning - a person in search for economic betterment. For some, this implied making a false asylum claim. Economic migrants were not thought of as labour migrants or entrepreneurs[141]. The solicitors did not conceptualise economic deprivation as a legitimate cause for flight, i.e. the prescribed limits of refugee law remained unquestioned. However, my informants all refrained from judging negatively of 'economic migrants', often because of their potential contributions to the national economy in terms of labour, skill, expertise and perhaps investment.

The impression prevailed that 'economic refugees' are male, although some informants admitted the weakness of this statement because, firstly, the informational and methodical basis on which they make assumptions on 'genuineness' is very vague and, secondly, all my informants stated a lack of experience and, consequently, expertise on women's asylum cases. Without ruling out the possibility that gender differences did exist, they avoided generalising statements, with regard not only to credibility but also to the persecution stories, to success rates, etc. Nevertheless, this allows the suggestion that the pejorative discourse around 'economic migrants' does not equally apply to women.

6.3 'Economic-Cost Analysis'

The comments about 'economic migration' were also telling in terms of a British and European (self-) portrayal. On the one hand, it is the UK's prosperity that attracts 'economic migrants'. On the other hand, the existence of economic problems, such as unemployment, poverty and homelessness, was stressed and attributed to the assumption of limited resources rather than to structures of unequal distribution. The justifying premise of immigration control, that it is legitimate to privilege the native population in resource distribution, was not disputed. The discourse on 'economic migration' introduced the concern of national sovereignty into the 'humanitarian resort' of asylum law.

Others suggested, that law itself creates the 'resource problem' as it prohibits asylum seekers to enter the labour market for six months. A class of economically and socially marginalised is created whose resulting use of state support serves as an argument to tighten immigration control including asylum.

6.4 Credibility Issues

All solicitors agreed that interviews at the Home Office and hearings in court are centred around credibility. The routine doubting echoes the general suspicion of non-'genuineness'. All informants considered problematic the practice to take inconsistencies as evidence for lies, which disregards explanations such as misunderstandings or misrepresentations by solicitors and interpreters. Also, to doubt the whole persecution story because of inconsistencies about the journey is considered incorrect. The tendency at both the administrational and the court level was criticised to label applicants as 'liars', as opposed to questioning the truthfulness of individual statements upon reasons for doubt. The practical implication is that the applicant is expected to prove her credibility rather than the Home Office to justify the dismissal for incredibility. Some informants suggested that this depends on one's personal attitude towards refugees. As one support worker stated 'unless you come from a compassionate beginning', i.e. unless one positions herself deliberately within this conflict of interests on the side of asylum seekers, one will generally treat them unfairly. All this, however, is said with respect to male applicants, as we must remember that experiences with women are scarce. One informant suggested that prejudices among law enforcers about women's lack of political activism might entail a higher risk of being considered incredible.

When asked whether they believed or disbelieved their clients, support workers insisted on refusing to question credibility because their job was not to evaluate asylum claims. The solicitors also stressed that part of their professionalism was to refrain from questioning credibility or genuineness because they only had to act in their clients' best interest, not to assess their claims. Still, all of them elaborated on their personal assessment methods and criteria. That shows that the centrality that law and politics ascribe to the issue influences the way in which we look at asylum seekers. The main criteria are, like in courts, inconsistencies and demeanour. All acknowledged their assessments to be subjective or 'instinctive', but also claimed expertise and reliability of judgement after years of experience. The comments I received on the grounds for incredibility findings in para. 341 of the Immigration Rules were varied. The lack of or production of false identification documentation was unanimously rejected as a ground. False representations, on the other hand, were widely seen as a valid ground, where a 'reasonable explanation', as the law requires, is not given. All solicitors used the concept of 'reasonableness' without questioning it for its vagueness. The rule on inconsistency with former beliefs or behaviour was seen as too vague to be meaningful. Also, it did not take sufficient account of personality developments and changes in behaviour as reaction to traumatising experiences and cultural differences.

There was one noticeable difference between the accounts of the solicitors and those of the support workers. The latter stressed that the difficulties in navigating through the complexities of law might lead refugees to behave in ways that disqualify their claims, while none of the solicitors brought up that argument, presumably following the legal principle that 'ignorance of law is no defence'.

7. Conclusion

UK and EU are depicted as societies whose comprehensive humanitarian protection to refugees showed its civilisational advancement. The absence of alternative legal models of refugee protection in European or national law leaves the concept of the 1951 Convention unchallenged, considering it satisfying in scope and content. A strong contrast builds the exclusive focus of the law on national economic resource management. This divergence is reflected in my informants' trust in a just law in abstract theory and their disillusionment about the different practice. In their majority they did not perceive or criticise, though, that women are structurally excluded on both levels.

My second presumption was that the UK and 'Europe' are portrayed as a 'better place' to live in and that its economic prosperity attracts many people who want to profit. The exclusion, in whole or in part, of asylum seekers from social benefits states that as newcomers they are undeserving of the blessings of the UK's prosperity. The idea is constructed that the native population, which is automatically assumed to be more or only deserving, is threatened by the exhaustion of basic means of living through asylum seekers, an idea that is somewhat absurd considering that the UK is among the richest countries world-wide. Also, some of my interview partners agreed that finite resources demand the control of influx. This does not necessarily contradict the expressed understanding, that economic deprivation can be a valid reason for flight, if a 'right' to seek is not seen to correspond with an obligation to grant protection.

Thirdly, causes for flight that are not covered by the supposedly comprehensive Convention, are not seen as legitimate. Such asylum seekers pursue illegitimate and fraudulent intentions to abuse the host economy and welfare system. The legal response of indiscriminate deterrence through economic deprivation suggests that asylum seekers generally are economically motivated. Some of my informants did not go beyond the legal and political discourse to associate with every false asylum claim economic migration. Others contested it as they considered economic refugees to have a (moral) 'right' to seek protection. The lawyers would refrain from using this technical language.

While the link between genuineness and credibility is not expressly stated, it is noteworthy that the discussion on non-genuineness is very central in the political discourse, while in administration and judiciary the focus on credibility works to the same effect of justifying the disqualification of asylum claims. The routine questioning of credibility is an established feature of the law, not only visible in, for example, safe country concepts but also in the Immigration Rules, para. 341. Even though credibility was professionally irrelevant to my informants, some, especially the solicitors, were persuaded of the centrality that text law attributes to the question. They do, at least in 'private' considerations, assess their clients, resorting to similar methods as judges.

The cases involving women's claims did not equally show this centrality. Yet, because of the limited number of cases analysed we cannot generalise on this finding.

This however points at a central issue concerning women's asylum claims. The perceived absence of women refugees in legislation and court decisions is, according to my initially presumed discursive statement, due to the fact that there are less women refugees which also means that they are less politically active and therefore not target of political persecution. While text law only hints at this assumption with its continued reference to applicants as 'he', the cases, more clearly, constructed women outside the scope of legal protection by depoliticising their actions and situations of persecution. While this was partly criticised by my informants, statements that women 'come as family dependants' revealed how our thinking in legal categories disables us to perceive large parts of people's identities.

So, while we could see the ways in which the 'death of the refugee'[142] and the births of the 'legal refugee' and the 'economic bogus claimant' are brought about, we also found that the same processes do not equally apply to women. The majority of women refugees are categorised as family dependants, which allows for refusing entry together with the mostly male principal applicants, who are the ones against whom all suspicions become effective. Few women lodge their independent asylum applications and most of the claims are not fitted under the Convention definition. At the same time, the presumption of economic motivations of women applicants is less strong than with respect to male applicants. A possible explanation is that the suspicion of economic motivation and fraudulent claims is constructed only to justify measures that reduce numbers of applicants. This need is not as urgent with the low number of female asylum seekers most of whom are rejected already on 'objective' grounds, i.e. 'legitimately' in accordance with the Convention. So, the corresponding pejorative discourse to demonise the 'other' and deny her legitimacy of migration is not equally important, because women, as they are constructed, do not expose the contradictions between the postulate of humanitarianism and the primacy of economic protectionism, that needs discursive disguise.

In summary, various parallels between the legal discourse and the perceptions of my informants have been found but also several occasions, where the legal discourse is implicitly or openly challenged, suggesting both the effective constructive power of legal discourse but also effective resistance against it.

However, those images of text law can similarly derive from other dominant discourses, such as the media or political discourse[143]. In order to make a sustained argument on the effectiveness of legal discursive power, we would need to investigate the mechanisms and strategies through which those other discourses impact on public perceptions. While a strong and deliberate interdependence between media and political discourse has already been documented[144], the question needs to be looked at how law is effective as discursive power within these discourses. Therefore, it would be close to speculation to interpret the results as anything more than establishing a reasoned argument for the possibility that law is effective not only as regulatory but as discursive power in shaping people's perceptions and public political opinions, which in return will impact on the formulations of law. Thus, law as discourse seems to offer the possibility to produce and reproduce dominance and power relations.

On the other hand, the informants have demonstrated that this discourse is not beyond challenge and that there is space for resistance that is more potent the more we engage actively not only with issues but with people themselves. The more we confront ourselves with realities and gather our own experiences in encountering the 'other' the less likely are we to be convinced by discourses. However, my impression is that without committing ourselves to disagree ideologically and politically with the maintenance of inequalities and suppression of some sectors and parts of society, we will not be open to unprejudiced encounters with the 'other' and, thus, not capable of resisting the discursive power of law.

Endnotes

1 . Said, Edward W (1995), Orientalism – Western Conceptions of the Orient, Reprint, London: Penguin Books.

2. Harvey, p. 562; see also Cohen, pp. 1 and 198.

3. Koser, and Lutz pp. 3 and 8, Lutz, Phoenix and Nira Yuval-Davis pp. 7f.; Essed, pp. 53f.

4. See, for example, the references in fn. 3.

5. See, for example, Goodwin-Gill, Guy, S (1996), The Refugee in International Law, 2nd edition, Oxford: Clarendon Press; Hailbronner, Kai (2000) Immigration and Asylum Law and Policy of the European Union. The Hague; London : Kluwer Law International; Stevens, Dallal (1998), The Asylum and Immigration Act 1996: Erosion of the Right to Seek Asylum, in: The Modern Law Review, vol. 61, no. 2, pp. 207ff; Supperstone, M., and D. O'Dempsey (1996) On immigration and Asylum, 4th edition, London: FT Law & Tax, and King, Mike, (1994) 'Fortress Europe' – The Inclusion and Exclusion of Migrants, Asylum seekers and Refugees, Leicester: Centre for the Study of Public Order, University of Leicester, to name only a few.

6. Fitzpatrick, p. 186.; Stang Dahl, p. 11; Smart, p. 23; Falk Moore, pp. 55 and 79f.

7. Fillingham, p. 95.

8. Fillingham, p. 101.

9. Fillingham, pp. 16f.

10. Foucault and Gordon p. 119.

11. Foucault and Gordon p. 119; Fillingham, p. 125.

12 . Foucault and Gordon, p. 30.

13. Foucault and Gordon, p. 27.

14. Smart and Brophy p. 1.

15. Smart, p. 11.

16. Smart, p. 21.

17. Bingham, p. 4.

18. See, for example, case studies (CC/55095/97 and HX/88401/97) in Stanley and Tennant pp. 57f.

19. Weston, p. 88; Ruppel, p. 4.

20. Smart, p. 13.

21. S 2 of the Asylum and Immigration Appeals Act 1993.

22. For example Leiss, and Boesjes p. 15; Tuitt, p. 25; Stanley and Tennant, p. 54.

23. Leiss and Boesjes, pp. 17; Gender Guidelines for the Determination of Asylum Claims in the UK pp. 1f.

24. Leiss and Boesjes, pp. 19f.; Gender Guidelines, pp. 1f.

25. Tuitt, p. 33.

26. Koser and Lutz, pp. 1f.; King points out that the notion of a 'Fortress Europe' is too simplifying as it does not account for the development of a complex geopolitical structure, that consists of multiple ex- and inclusionary measures on various levels within the EU and beyond, e.g. the Schengen signatories, the EEA, the Visegrád group, the OSCE states etc.(King, pp. 1f, 4ff. and 14) Bearing that in mind, I will still focus on the EEC and EU legal framework as it is here where efforts to develop and implement immigration and asylum policies are most intense.

27. In Title IV, Articles 61-69 of the European Community Treaty.

28. Hailbronner, p. 366.

29. Harvey, p. 581; King, pp. 8f.

30. Hailbronner, p. 364.

31. Adopted by the EC Immigration Ministers on 30.11./1.12.1992 (Hailbronner, p. 443).

32. Both adopted by the EC Immigration Ministers on 30.11/1.12.92. (Hailbronner, pp. 444 and 460.)

33. Hailbronner, p. 464.

34. Hailbronner, pp. 357 and 369.

35 . See, however, the Joint Position on the harmonised application of the 1951 Convention term 'refugee', adopted by the Council on 4 March 1996 on the basis of the then Article K.3 TEU (Hailbronner, pp. 364 and 383f.)

36. Stevens, p. 210.

37. For the 1993 and 1996 Acts: Leigh and Beyani pp. 2f. and Stevens, p. 209; for the 1999 Act: White Paper 'Fairer, Faster And Firmer – A Modern Approach To Immigration And Asylum', July 1998, (cm 4018), < http://www.official-documents.co.uk/document/cm40/4018/4018.htm >, visited on 7 September 2000, para. 2.3.

38. Koser, p. 187; King, p. 12, Cohen, p. 83.

39. Harvey, pp. 579f., Stevens, p. 220.

40. Harvey, pp. 582f.

41. Para 5 of Sched 1 of the 1993 Act; ss 4 to 6 of the 1996 Act; ss 28 to 30 of the 1999 Act.

42. Stevens, pp. 217f.

43.Harvey, pp. 579.

44 . Koser and Lutz, pp. 1f; Travers, p. 101.

45. Tuitt, pp. 12f, 15, 24f. and 33; Leiss and Boesjes, p. 16; Hathaway, pp. 134 and 144, Joly, pp. 9f.

46. Harvey, p. 562; Hathaway, p. 136.

47 . Harvey, p. 562.

48. Hathaway, pp. 133ff, pp.174f.; Tuitt, p. 7; Joly, pp. 17f. and 21ff., Harvey, p. 562.

49. Harvey, p. 571.

50. Joly, pp. 19f., 32ff. and 36ff.

51.Travers, pp. 99ff.; Tuitt, p. 7; Koser and Lutz, p. 3; Essed, p. 51.

52. See for example Immigration Rules, paras 327ff; s. 3 (1) of the 1993 Act.

53. Between 1992 and 1997, 7% of applicants were granted asylum, 24% got exceptional leave to remain (Travers, p. 99). For more recent statistics, see the Immigration and Asylum Statistics of the Home Office Research Development and Statistics Directorate, <http://www.homeoffice.gov.uk/rds/areas/immif.htm >.

54. Joly, pp. 1 and 12; Tuitt, pp. 16 and 18ff.

55. Koser and Lutz, p. 11; Joly, p. 37.

56. < http://www.official-documents.co.uk/document/cm40/4018/4018.htm>, visited on 9 July 2000.

57. (c.33), < http://www.legislation.hmso.gov.uk/acts/acts1999/19990033.htm>, visited on 8 July 2000.

58. Paras. 1.3.-1.4.

59. Paras. 1.6., 1.20 and 2.2.

60 . Para. 1.6.

61. Para. 1.7.

62. Para. 1.9.

63. Para. 1.14.

64. Para. 3.5.

65. Para. 10.2.

66. Weston, p. 89.

67. Ruppel, p 5; Cohen, pp. 209f.

68. Ruppel, p. 4, Weston, p. 88; Hinshelwood, p. 161.

69. Weston, p. 88.

70. Bingham, pp. 4-7.

71. Weston, p. 88, Ruppel, p. 4.

72 . Ruppel, p. 4.

73. Bingham, p. 15; see also Hinshelwood, p. 161.

74. Ruppel, p. 6.

75. Mack, pp. 339-346.

76. Mack, p. 332.

77. Lees, p. 121f.

78. Lees, p. 124, Mack, p. 336.

79. Ruppel, p 2, Weston, p. 87; Travers, p. 127.

80. Mack, p. 334.

81. Mack, pp. 333f., citing Lord Justice Salmon in Henry v. R., 53 Crim.App. 150, 153 (1968): '(H)uman experience has shown that (...) women (…) do sometimes tell an entirely false story (…) for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all.' (my emphasis).

82. Weston, p. 88; Bingham pp. 10f and 14; Ruppel, p. 13; Hinshelwood, p. 162.

83. Weston, p. 88, Ruppel, pp. 4 and 18f., Bingham 10f and 14.

84. Hinshelwood, pp. 162f. and 164; Leiss and Boesjes, p. 20.

85. Ruppel, p 19f.

86. Immigration Rules (HC 395), para 341 (i).

87. Weston, p. 87, citing the case of Ernesto Mendes (12183).

88. UNHCR Handbook, paras 196, 203f.

89. UNHCR Handbook, para 202.

90. Ruppel, p. 35.

91. McKee, p 52; see also Travers, p. 128.

92. Travers, pp. 118f.

93. Weston, p. 87.

94. McKee, p. 53, citing the case of Vancea (11734).

95. Weston, p 89.

96. Travers, pp. 122 and 127.

97. Mack, pp. 328f.

98. Immigration Rules (HC 395), para. 344.

99. See, for example, Leiss and Boesjes, p. 15; Tuitt, pp. 24f.; Joly, pp. 9f.; Stanley andTennant, p. 54.

100. See also Leiss and Boesjes, p. 80.

101. Immigration Rules (HC 395), para. 334; s. 31 of the 1999 Act.

102. UNHCR Handbook, para. 28.

103. Immigration Rules, para. 327.

104. R v Special Adjudicator ex parte Ogochukwu Chigioke Okonkwo (QBD), reported in [1998] Imm AR 502.

105. Ogochukwu Chigioke Okonkwo, at 506.

106. Ogochukwu Chigioke Okonkwo, at 506.

107. R v Immigration Appeal Tribunal ex parte Yogashanthi Subramaniam (QBD) , [1999] Imm AR 359.

108. Yogashanthi Subramaniam, at 362 and 364f.

109. R v SSHD ex parte Tseganesh Befekadu, (QBD), [1999] Imm AR 467.

110. Tseganesh Befekadu, at 473ff.

111. Yogashanthi Subramaniam, at 361, citing the adjudicator, Mr Freeport in the case of Sughiandini, daughter of Nithiyanandasivam (2 June 12997, appeal number reference HX/66692/96).

112. Yogashanthi Subramaniam, at 365, emphasis added.

113 . This finding is supported by Leiss and Boesjes who found that the criteria of membership of a social group is applied reluctantly and ad hoc and not attempt is made to make general guidelines as to its interpretation, as 'governments seem to fear that all members of a certain group must be recognized as refugees, once the criteria on 'particular social group' are formulated.' ( Leiss and Boesjes, p. 95).

114. Preamble, Convention relating to the Status of Refugees of 28 July 1951,
< http://www.unhcr.ch/refworld/refworld/legal/instrume/asylum/1951eng.htm>, visited on 4 September 2000.

115. See for example s 24 (1) (d) of the 1971 Act, Sched 2 to and s 26 of the 1971 Act.

116. S 3 of the 1993 Act; s 7 of the 1996 Act; ss 128ff of the 1999 Act; Stevens, pp. 216; Tuitt, pp. 149ff.

117. S. 25 (1) (b) of the 1971Act and s. 1B, 1C as substituted by s. 5 of the 1996 Act and s. 29 of the 1999 Act; Stevens, p. 217.

118. Similarly Tuitt, p. 153.

119. S. 2 of the 1996 Act.

120. Para. 5 of Sched. 2 to the 1993 Act, as substituted by s. 1 of the 1996 Act; Leigh/ Beyani, pp. 2-6, Stevens, p. 211.

121. UNHCR Handbook, para. 202.

122. S. 8 (1) to (4) of the 1993 Act, Sched 2, paras. 1f. to the 1993 Act.

123. Asylum Appeals (Procedure) Rules 1996 (SI 1996, No. 2070), rules 1 and 13.

124. Arguing against the validity of this assumption Gender Guidelines, p. 24, para. 5.34.

125. Supperstone, p. 482.

126. Ladd v. Marshall (C.A.), [1954] 3 All ER 745.

127. Ladd v. Marshall, at 748 B.

128. Ladd v. Marshall, at 748 C.

129. Ladd v. Marshall, at 748 C.

130. Ladd v. Marshall, at 751B-C, 752 B-C.

131. Tseganesh Befekadu, at 471.

132. At 471 and 474.

133. At 364.

134. R v Secretary of SSHD ex parte Panther (C.A.) [1996] 8 ALR 154, at 156E, 161C, 162C-D.

135. At 156G-H.

136. At 157A.

137. R v Immigration Appeal Tribunal ex parte Belayener Senait (QBD), [1999] I.N.L.R. 580, at 584.

138. See, for example, the special adjudicator's decision, which was not upheld, in Milan Horvath v SSHD, the United Nations High Commissioner for Refugees intervening, (Immigration Tribunal), [1999] Imm AR 121, at 127; adjudicator's decision upheld in Yogashanthi Subramaniam, at 360.

139. I decided to gather interview data from four groups of people that are involved in the processes of translating text law into operation at different levels, which I would suggest to visualise as concentric circles. In their centre, immigration officials use law as regulatory/ coercive power and, as its representatives, are most likely influenced by its discursive power. Secondly, solicitors, also working with the regulatory framework of law, are in a different position, often having to find ways to avoid, challenge or subvert its coercion and the question is whether this different approach impacts on how discursive power is effective. Thirdly, workers in refugee support organisations are not directly involved in the administrational determination processes. I am interested to find whether the 'truth' of law is persuasive to them as 'outsiders'. Finally, refugees are 'outsiders in the centre' of the discourse about the 'we' and the 'other' How do they perceive of the images that underlie the requirements that law imposes on them?

I decided to interview informants who have dealt with women refugees and preferably female informants who, I presumed, are more perceptive of gender implications, whether or not they adhere to feminist positions.

Practical constraints forced me to conduct only a small number of interviews that will not yield 'representative' findings. Hence, I understood and used them as individual accounts, i.e. not generalising but still setting them in context and trying to understand the structural interrelations they revealed.

140. I am grateful and indebted to Ekhlas A. (Birmingham), Juliette O. (Birmingham), Penny W. (Coventry), F.E. (Coventry), Zaheer K. (London), Funmilayo K. (London) and Z. K. (London) for their time and support.

141 . Immigration Rules, paras. 128ff. and 200ff.

142. Tuitt, p. 2.

143. Foucault points out, that newspapers produce, similarly as legislation, 'universal moral categories' as means of ordering society (Foucault, On popular Justice, p. 15).

144. Graber, McQuail and Norris p. 9; Patterson, p. 25; Pfetsch, pp. 70f.

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