Information Prepared by: Dr Jane Herlihy
Email: j.herlihy@csel.org.uk
Biography: Dr. Jane Herlihy is the Executive Director of the Centre for the Study of Emotion and Law (CSEL). She is a Chartered Consultant Clinical Psychologist and has been writing and conducting research into the decision-making process in refugee status claims since 2000. She has a part time clinical role at the Trauma Clinic in London and is an Honorary Lecturer at University College, London.
The understanding and application of psychological science within the Refugee Status Determination (RSD) process is important for ensuring that the adjudication process is fair and to lessen the risk of denying protection to genuine refugees. Below we present a brief introduction to the psychological research that can be drawn on in representing people seeking international protection and in making legal decisions about them.
This summary, compiled by IRRI staff, is taken from an article written by Lily Parrott, co-editor of the Fahamu Refugee Legal Aid Newsletter and Jane Herlihy, Executive Director of Centre for the Study of Emotion and Law (CSEL) published in Fahamu Refugee Legal Aid Newsletter, April 2014. This article can be accessed here.
Introduction
Due to incomplete and uncertain physical evidence (for example, identity documents left behind during flight), the decision of whether to grant refugee status often rests almost entirely upon the perceived credibility of the asylum seeker. However, credibility is notoriously difficult to determine. Judges are expected to use common sense based upon ‘working hypotheses’about how the world works. This can mean that decision makers rely on potentially inaccurate assumptions about behaviour, decisions, motivations and events rather than looking to psychological science for knowledge about how people behave, recall and relate their past experiences (Herlihy, Gleeson & Turner 2010).
In the following sections we introduce three areas of psychological science that can be drawn on in representing people seeking international protection and in making legal decisions about them: memory, disclosure and the psychology of the interviewer/decision maker.
(For further detail see our extended article)
Memory
The substantive interview of the Refugee Status Determination (RSD) process relies almost exclusively on autobiographical memory; the explicit memory of events that occurred at a specific time and place in one’s personal past. However, psychological research tells us that the main functions of autobiographical memory mean that it is subject to distortion, decay and even false memories (Herlihy, Jobson & Turner 2012). Cameron’s Refugee Status Determinations and the Limits of Memory (2010) reviews many of the experimental studies that show that some information is not encoded in memory or is poorly encoded, and is therefore difficult to access. For example, memory for specific dates, times, duration, frequency and sequence of events is especially variable between individuals and prone to errors. Other research provides further evidence of how memories of traumatic events are often recalled as disorganised, unstable narratives and that people suffering Post Traumatic Stress Disorder (PTSD) often have an inability to recall important aspects of the traumatic event. This may pose a particular problem during RSD, because adjudicators often expect an applicant to remember certain details –such as the date –associated with a stressful event. Research further illustrates how, under conditions of stress, people tend to recall central (‘gist’) details, at the expense of peripheral ones (see Herlihy et al. 2012). Yet, typically, during RSD interviews, credibility determination often relies upon questions concerning peripheral details (Herlihy, Gleeson & Turner 2010). Note that whether a detail is central or peripheral to a memory can only be decided by the person recalling the detail.
(For further detail see our extended article)
Disclosure
The late or non-disclosure of applicant information within the RSD procedure may lead to inconsistencies within a testimony and is assumed to indicate fabrication, reflecting poorly upon the credibility of the testimony (Cohen 2002). However, disclosure is influenced by a number of psychological factors, including memory, trust, culture, emotions during disclosure (e.g. shame, depressed mood) and the emotional content of the events disclosed (possibly leading to dissociation) (see Bögner et al. 2007). For example, research has shown that asylum seekers often initially under-report sexual violence. This can be for several reasons: sex is often a taboo topic, women and men may fear a stigma due to abuse, concepts such as confidentiality and privacy do not exist in the same way in different cultures, and presence of an opposite gender interpreter may make the person anxious (see Bögner et al. 2007). Research also illustrates how an interviewer acts, the relation between the interviewer and interviewee, and the setting of the interview will affect an asylum seeker’s disclosure (Bögner et al. 2007). For example, asking a question multiple times may imply the initial answer given was wrong, and so increases the interviewee’s uncertainty and suggestibility (Baxter, Boon & Marley 2006).
(For further detail see our extended article)
The psychology of the Interviewer/Decision Maker
Even though legal decisions are supposed to be ‘point-of-viewless’(Bruner 1991), there are a number of assumptions made by decision-makers relating to the credibility of a person’s testimony (Herlihy, Gleeson & Turner 2010). For example, testimonies are judged to be more credible when the emotions displayed while giving a testimony are seen as being congruent with its emotional content (Kaufmann, Drevland, Wessel, Overskeid & Magnussen 2003). This suggests that it is more difficult for people not reacting in the manner expected by decision makers to be perceived as being truthful, such as those experiencing emotional numbing (a common feature of Post-Traumatic Stress Disorder) (Wilson-Shaw, Pistrang and Herlihy, 2012) or of different cultures. Furthermore, many of the ways in which people present when they have PTSD overlap with perceived cues to deception. For example, people who fidget are more likely to be perceived as lying (Hellawell & Brewin, 2002).
(For further detail see our extended article)
Conclusion
This summary has outlined some of the areas of psychological science that can bring crucial evidence to bear on different processes in the asylum system. Individuals seeking protection have to draw on their memories of events –both of ordinary knowledge of their alleged home country and of the most extraordinary, sometimes traumatic experiences. A significant body of literature has demonstrated that neither of these processes is straightforward. Further, disclosing what can be recalled has its own difficulties. These issues have also been studied under controlled conditions and, by being aware of the findings, the process of determining refugee status can only become better informed and potentially more reliable for all actors involved. We have also looked at what psychological science has to offer in understanding the process of interviewing and coming to a decision about the credibility of a claim for protection. This necessarily involves understanding the interactions between the people involved at any point, and the psychology of the interviewers and decision makers themselves. The research outlined in this summary offers some examples of evidence that can be drawn upon for a better understanding of the many complexities of refugee status determination.
Resources
Centre for Study of Emotion and Law
Website: http://www.csel.org.uk/
Description:
The Centre for Study of Emotion and Law (CSEL) provides high quality psychology research to inform legal decision making, benefitting people who have been oppressed, persecuted and victimised in order to ensure access to justice for all. All of CSEL’s publications, and selected related publications from other centres can be found here. In addition to publishing original reserch, CSEL runs a UK-wide training programme in understanding aspects of psychology relating to the asylum process for legal professionals and voluntary sector workers. You can access upcoming training dates here.
Decision-makers and Psychological Evidence
Link: http://rli.sas.ac.uk/wp-content/uploads/2012/07/Psychology-and-Refugee-Protection-Seminar-Series-Updated-Programme1.pdf
Description:
The Refugee Law Initiative, School of Advanced Study, University of London, hosted a seminar on: ‘Decision-makers and Psychological Evidence’, with Professor Anthony Good, Dr Jane Herlihy and Judge Mark Ockelton. The panel explored the relationship between experts and decision-makers in UK asylum and immigration courts. Watch part 1 of the seminar here, and part 2 here.
Understanding psychology can make asylum decisions fairer
Link: Understanding psychology can make asylum decisions fairer
Description:
An article published in Fahamu Newsletter on 1st May 2012 by Clare Cochrane and Jane Herlihy of the Centre for the Study of Emotion and Law (CSEL). This article explains how research from the CSEL shows that the psychology of both applicants and decision makers needs to be understood, in order to reduce the possibility of miscarriages of justice.
Managing and Understanding Psychological Issues among refugee Applicants: Guidelines for Best Practice
Link: Managing and Understanding Psychological Issues among refugee Applicants: Guidelines for Best Practice
Description:
Faculty of Law & Psychiatry Research and Teaching Unit, University of New South Wales, Australia.
These guidelines were aimed at creating a practical understanding for decision makers, mental health professionals and applicants’representatives of the challenges for applicants with trauma-related psychological effects where little or no documentation or other objective evidence exists, and credibility is pivotal to decision.
Refugee Status Determinations and the Limits of Memory
Link: Refugee Status Determinations and the Limits of Memory
Written by: Cameron H. 2010.
Description:
This article reviews decades of psychological research, showing that whole categories of information are difficult to recall accurately, if at all. As a result, while gaps or inconsistencies in a claimant’s testimony may in some cases properly lead to a negative credibility finding, these instances will need to be assessed with substantive reference to and understanding of the research literature on memory.
What assumptions about human behaviour underlie asylum judgments?
Link: What assumptions about human behaviour underlie asylum judgments?
Written by: Herlihy, J., Gleeson, K. & Turner, S. 2010.
Description:
This qualitative research shows that assumptions are made by decision makers about asylum seekers’ behaviour in their country of origin, in the UK, and in their accounts of their experiences. Questions are raised about which of these assumptions are in line with the best available empirical knowledge.
Just tell us what happened to you: autobiographical memory and seeking asylum
Link: Just tell us what happened to you: autobiographical memory and seeking asylum
Written by: Herlihy, J., Jobson, L. & Turner, S. 2012.
Description:
This paper reviews selected areas of research on autobiographical memory. It sheds light on some of the processes at work when someone seeks to be recognised as a refugee – in particular, the effects of emotion, including emotional disorder. It also explores differing memory styles seen in different cultures.
Non-clinicians’ judgments about asylum seekers’ mental health: how do legal representatives of asylum seekers decide when to request medico-legal reports?
Link: Non-clinicians’ judgments about asylum seekers’ mental health: how do legal representatives of asylum seekers decide when to request medico-legal reports?
Written by: Wilson-Shaw, L. Pistrang, N. & Herlihy, J. 2012.
Description:
This paper describes a study of how legal representatives make decisions about their asylum seeking clients’ mental health. It draws parallels between this group and other professionals who are making mental health (or ‘vulnerability’) assessments without a background of mental health training.
Impact of sexual violence on disclosure during Home Office interviews.
Link: Impact of sexual violence on disclosure during Home Office interviews.
Written by: Bögner, D., Herlihy, J. & Brewin, C. 2007.
Description:
This study describes people’s experiences of Home Office asylum interviews and relates the difficulty they report disclosing their past histories to their problems with Shame, PTSD and Dissociation.
Interrogative pressure and responses to minimally leading questions
Link: Interrogative pressure and responses to minimally leading questions
Written by: Baxter, J., Boon, J., & Marley, C. 2006.
Description:
This paper explores the effects of leading questions and pressure from interviewers on interviewees. Accessing this article requires a subscription fee.