Mind the Empathy Gap: An Analysis of Agency and Emotional Encounters in the Asylum Appeals of Former Unaccompanied Asylum-Seeking Minors

Abstract 

The role of emotion in asylum processes is one that has gained attention in recent years. This article situates itself as a response to this emerging body of literature by shedding new light on how emotions shaped the asylum appeals of a group of former unaccompanied minors in England through the application of the new concept of "empathy gap." Five socio-legal themes are used to structure the analysis: (i) age disputes, (ii) credibility, (iii) affective ties, (iv) right to voice, and (v) precarious legal status. It is the first article to explore in depth what happens during the asylum appeals process for former unaccompanied minors in Britain and the first to consider how questions of emotion affect their lived experiences of, and the process of, legal proceedings. The article has wider implications for how social processes and relations and informal processes, in particular emotions, influence formal legal proceedings leading to potential for unfair outcomes. The article finds that, to avoid empathy-enhanced reasoning becoming yet another variable leading to inconsistency in the judicial process, systematic training and monitoring are required. These findings carry implications far beyond the immediate context of UK asylum tribunals by offering empirically informed insights for theory and practice regarding the role of emotion in judicial proceedings, and therefore have enduring relevance.

1. INTRODUCTION

In British immigration and asylum regulations, "unaccompanied minors" are children who arrive in the UK without a parent or legal guardian. Between 2006 and 2012, an average of 3,000 such children applied for asylum in the UK each year. [1] Of the 14,047 who received a decision during this period, 12 per cent were awarded refugee status. A further 21 per cent were accorded humanitarian protection or refused asylum without any other kind of legal status. [2] Sixty-seven per cent were denied refugee status but afforded time-limited Discretionary Leave to Remain (DLR)—sometimes known as UASC leave—until the age of 17.5 years. At this point, most were stripped of their legal protection and were required to leave the UK voluntarily or by force. DLR was granted because of applicants' status as children and the UK's legal obligation not to forcibly return them to their countries of origin. This follows Article 3 of the United Nations Convention on the Rights of the Child, [3] as articulated domestically in Section 55 of the Borders, Citizenship and Immigration Act 2009, [4] which requires the Home Office to carry out its existing functions in a way that takes into account the need to safeguard and promote the welfare of children.

This article examines observational data collected from 25 appeals held at an English asylum appeal tribunal between January and August 2014 when former children, by then turned adult, were appealing to overturn an asylum refusal and seeking to remain in the UK on the grounds of asylum and/or human rights grounds. This included those who were granted time-limited DLR. The article offers an ethnographic portrait of a specific period of legal history and the socio-legal processes that affected this population. These findings nevertheless carry implications far beyond the time-specific context of UK asylum tribunals by offering empirically informed insights for theory and practice regarding the role of emotion in judicial proceedings, and therefore have enduring relevance. The data allow us to explore questions of empathy and antipathy as they played out in the legal process of the tribunal, which have much wider relevance for other contexts. The role of emotion in asylum processes is one that has gained attention in recent years, as articles in this journal attest. [5] This article situates itself as a response to this emerging body of literature by shedding new light on how emotions can shape judicial processes. This is important since procedural discretion in concrete, everyday contexts—which extends well beyond codified written law—has a strong influence over the confidence, trust, comprehension and, hence, access to justice of the appellants. The five socio-legal themes discussed and used to structure this article—(i) age disputes, (ii) credibility, (iii) affective ties, (iv) right to voice, and (v) precarious legal status—continue to shape asylum appeals processes in the UK and Europe-wide today. This makes this analysis timely and pertinent. It is the first article to explore in depth what happens during the asylum appeals process for former unaccompanied minors in Britain and the first to consider how questions of emotion affect their lived experiences of and the process of legal proceedings.

2. BACKGROUND

It is important to view the data presented in this article in the context of its given time. Some major events have occurred in the UK since those data were collected, not least Brexit (which prompted the most dramatic overhaul of our immigration and asylum framework for decades) and Covid-19 (which has caused enduring delays to the justice system and associated services), not to mention a global tide of right-wing extremism, several global disasters, and conflict. All of these have radically affected patterns of forced migration and corresponding responses to asylum-seekers. Recent literature on procedural justice, judicial roles, and diversity, such as the Feminist Judgments project [6] and the Children's Rights Judgments Project, [7] which involved academics revisiting existing case law from a range of legal disciplines and redrafting judgments from a women's and children's rights perspective, have gone some way in showing the dangers of procedural bias and discretion. Meanwhile, young unaccompanied asylum-seekers' experiences of seeking asylum in Britain have been documented in the Becoming Adult project, which followed over 100 unaccompanied minors as they transitioned to adulthood throughout England and Italy, including going through asylum appeals. [8] More recently, Rosen and Crafter documented "children caring on the move" while an analysis of "voice" and the tricky tensions between agency and vulnerability is highlighted by Stalford. [9] Analysis of how issues of empathy, efficiency, and delays play out in age assessment and asylum decision-making is also documented in the research briefings produced by the Lives on Hold, Our Stories Told [10] project. These sources provide a more up-to-date presentation of how changes in law and policy have impacted these dynamics in recent years.

However, while there have been some important changes in the reception of unaccompanied minors in terms of demographics and success of initial claims, the asylum appeal process and empathy gap regarding unaccompanied asylum-seeking minors have remained largely unchanged in the UK in the last decade. [11] In a 2020 article, Campbell remarks on the "remarkable continuity" in UK asylum appeal hearings over a 16-year period. [12] One significant development in initial claims is that recent years have seen an increase in positive asylum decisions. The number of claims from unaccompanied minors remains relatively similar today compared to 2014. In 2023, there were 3,412 applications from unaccompanied children. Of the children whose claims were decided in 2023, 75 per cent were granted refugee status. This is partly due to high numbers of Sudanese nationals who are likely to receive asylum and changing country guidance on Afghanistan, which deemed it unsafe following the Taliban coup in 2021 (it had previously been seen as a safe country with relocation to Kabul considered a viable option).

Most unaccompanied asylum-seeking minors are aged 16 and 17 years and, at the time of this research and today, age disputes are an important part of the governance of unaccompanied asylum-seeking children. [13] Because of the importance of age in determining legal status and rights and entitlements and the period of time for which a child might be granted the right to remain in the UK, many unaccompanied minors have their ages disputed when they have no evidence to support their claims. This can result in a parallel legal process of age assessment involving independent experts and social workers, which has an impact on asylum tribunals. [14] Today, as in 2014, unaccompanied children who have reached the age of 18 years when a decision is made remain more likely to have their asylum claim refused. [15] When a child turns 18 years, their asylum application, if already in process, should still be decided as if they were a child, and they should be accorded 'the benefit of the doubt' during the legal process, regardless of their age at the time of the hearing. As well as representing the best interests of the child in keeping with Article 3 of the United Nations Convention on the Rights of the Child, [16] such practice is in keeping with Article 1(A)2 of the Refugee Convention and Chapter II of the European Union (EU) Qualification Directive. [17] In recognition of their status as vulnerable adults who may struggle to participate fully in their hearings, appellants should also be treated following the guidance outlined in the Joint Presidential Guidance Note No. 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant guidance [18] and the Practice Direction for the First Tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive Witnesses. [19] Research nevertheless suggests that this is not always applied in practice, and asylum proceedings may be shaped by "national politics and political processes in complex ways," leading to an exaggerated burden of proof [20] and an empathetic encounter determined by political and institutional power and emotions, as well as supposed objectivity. [21] Moreover, beyond the vulnerable witness guidance, there is no specific training on UASC cases in tribunals.

This article adds to this literature by documenting how often former unaccompanied minors faced hostility and a culture of disbelief. Moreover, as adults, former unaccompanied minors now struggle to access legal aid that would fund legal representation, making access to justice even more difficult. [22] This is impactful since there are significant delays in asylum decision making in the UK. Since 2020, more than 7,500 children in Britain have waited more than a year for an initial asylum decision. [23]

Asylum appeals for these young people are a chance for them to argue before an immigration judge that they should either have their application for refugee status reconsidered or be granted further leave to remain on human rights grounds. At the time of the research, these arguments were most commonly made with the help of a private or state-funded legal representative with reference to Article 3 (risk of return) and/or Article 8 (private and family life) of the European Convention on Human Rights (ESRC). [24] The peculiarity and adversarial nature of the UK immigration tribunal is worth emphasising—while usually adversarial proceedings allow for the defendant/appellant to vocalise their experiences and for both parties to be cross-examined, this is not a feature of the immigration tribunal which operates more as a review of Home Office decision making. [25]

During the hearing, the appellant is examined by their legal representative, if they have one, or by the Judge. They are then cross-examined by a presenting officer or a barrister who represents the Home Office. The appellant is offered an interpreter. There is also an opportunity for both sides to present experts or witnesses. At the end of the hearing, both sides make submissions to the Judge, who usually gives a decision on the case in writing 2–3 weeks later. The decisions of the cases I observed were not available to me, hence I focus on the perceived impact of emotion on legal processes and procedures.

Young migrants awaiting the outcome of decisions that will determine their right to remain in a country of migration are commonly depicted as being "in limbo," suspended between belonging and exclusion. [26] In the asylum tribunal, the young migrants I observed nevertheless rarely behaved or framed their situation as a simple desire to move between two states of being as implied by the limbo analogy. Rather they sought to have their subjective experiences recognised in a way that often posed a challenge to—as well as an emotional request for inclusion in—state-sanctioned definitions of asylum and citizenship. As O'Nions has remarked in this journal, due to a combination of exploitation, poor mental health, long delays in process that undermine trust, and poor understanding of the legal system, asylum-seekers often find themselves in a position of "almost total marginalisation from the decision-making process," limiting their capacity to advocate for their rights. [27] Moreover, a recent observational study of UK's asylum tribunals found significant variation in practice and the influence of highly subjective factors on fairness in both proceedings and outcomes. [28] This is at odds with the procedural rules of tribunals, which require cases to be dealt with fairly and justly and with specific guidance given to support asylum-seekers in recognition of their different experiences.

Rousseau and Foxen found that all claimants interviewed by the Canadian refugee board experienced the refugee hearing as an intense emotional experience, yet they also observed that, "the very unequal power relations of the hearing setting structure the transmission of the refugee stories in a way that often prevents an emotional encounter between decision makers and refugees." [29] Following calls for more "empathy-informed reasoning" [30] and kindness [31] in asylum tribunals as part of a wider attention to empathy in socio-legal research, [32] this article draws on the new concept of "empathy gap" to explore the ways in which an emotional connection was sought and contested. In particular, it considers how appellants were constructed and sought to construct themselves as empathetic subjects and how this was received. This work is also informed by Foxen and Rousseau who, in their analysis of the emotional interactions surrounding refugee determination hearings, focus on the trauma transmission process during the hearing which entails both "a re-enactment by the claimant of the harm inflicted upon him/her, and the capacity of the adjudicator to share and understand the Other's experience." [33]

Being able to present themselves in a way they considered to be deserving is an important component of agency for this group of marginalised young people who often face stigma and feel their subjective identities are marginalised within wider legalistic narratives. In this respect, this article's argument speaks to O'Nion's important study of refugee women's experiences of UK asylum tribunals featured in this journal. [34] This article identifies a disconnect between how young people sought to depict themselves as deserving and the lens through which other bureaucratic actors perceived them. The lack of a common "script" for what counts as deserving among this population leads to what is termed an "empathy gap" in the performance of asylum tribunals—what I define as a space for subjective emotional appeals. An analysis of empathy as it appeared in my ethnographic research on the appeals of 25 former unaccompanied minors found that young people may in fact reinforce their marginal position by seeking to speak from a place of subjugation where they do not understand how their plea for connection will be received. [35] The case studies show that attempts at agency whereby appellants seek to engage on an emotional level can ironically reinforce narratives of exclusion and lead them to be deemed unsympathetic by tribunal actors. The article also demonstrates that where other tribunal actors seek to open or close an "empathy gap," this too can be met by a range of responses based on subjective and highly variable norms. In this sense, this article adds to a growing body of research on inconsistency in asylum appeal processes in Britain [36] and beyond. [37] In his study of judicial review in Canada, Rehaag concluded that the outcomes in legal processes may often be influenced by factors other than the merits of the case including "the various aspects of the judge's identity or gender, political party of appointment and political orientation". [38]

The legal process, by its very nature, places the appellant in a position of being dependent on the will or favour of another actor in the tribunal; they are, by definition, being judged and positioned in an inferior power relationship to Home Office representatives—who represent the state—and the deciding Judge who presides over the tribunal. Whilst it might be argued from a classical or doctrinal legal position that the role of Judge is simply to apply the rule of law, this view of the Judge has been widely contested, with various scholars pointing to the discretionary influence that judges have over cases in formal and informal, substantive and procedural ways. [39] The interpreters, representatives, witnesses, and experts also play an important intermediary role including, I argue, opening and closing "empathy gaps." Previous scholarship has detailed the degree to which the subjective judgment of court actors is influenced by emotions. [40] It has similarly shown the power of discretion on the part of individual stakeholders and officials engaged in the asylum process, such as social workers. [41] These findings were replicated in this research in which whether or not the court actors showed favour to the appellants often appeared to be based on subjective factors.

Appellants found themselves in a precarious position. In keeping with Judith Butler's conceptualisation of precariousness and precarity as a dynamic interaction between the subjective and the structural, [42] the tribunal can be understood as a site of both an ethical and a political encounter. Calling for a critical geography of precarity, Waite has argued that "experiences of precarity should be seen as intimately connected to sociospatial contexts". [43] Critical legal studies focus on procedural justice and fairness whereas the social psychology theory of justice emphasises that perceptions of procedural fairness may be at least as important as outcomes in ensuring compliance and acceptance. [44] This ethnographic study of former unaccompanied minors within asylum tribunals aligns with this socio-spatial approach. Empathy here is understood in line with Butler's relation of precariousness as a personal identification with the suffering or vulnerability of the appellant based on an ethical encounter. [45]

In Butler's definition, precariousness is constituted through ethical encounters during which one is at the mercy of another human being who is embroiled in—and may wield force or dominance from—a range of power structures. [46] These structural or social positionings of insecurity stem from our alienation from our shared condition of vulnerability. The relationships of dependency that are the essence of precariousness may take the form of solidarity and care, but also of domination or resistance. In bureaucratic contexts where the power of physical subjugation lies with one party, as in the asylum tribunal where it lies with the Home Office and the Judge, the subjugated individual—the appellant—is rendered starkly dependent on the will of another. In its extreme manifestation, as created by the situations many refugees have fled, a "yes" or a "no" from an official can mean life or death.

In the asylum tribunal, appellants are being judged in person on the merits of their asylum or human rights claims. This is a legalistic process within which emotion should be subjected to a rational examination of the facts of the case. Research has nevertheless shown that emotion can play an important role in determining the process of asylum appeals. [47]

James and Killik [48] show that in a context of cuts to funding for UK civil legal aid, empathy can play an important role in determining relationships between lawyers and their clients with empathy leading case workers to go "above and beyond" for particular clients. So even before they arrive at the tribunal, appellants may have been judged to be found empathetic or not, which may determine whether or not they have been able to secure representation.

In their interviews with asylum-seekers in the Canadian context, Rousseau and Foxen report that the majority experienced not feeling heard properly during the hearing, including those who had gone on to be granted refugee status. [49] This suggests that for appellants, the hearings are more than legalistic hurdles but an encounter that carries deep emotional resonance. "The experience of not being heard," Rousseau and Foxen report, "can be experienced by the claimant as completely catastrophic". [50] Within their analysis, emotions remain implicitly at the forefront of the hearing. [51]

Blanck and Peter studied judicial facial expressions and mannerisms and noticed that it was often those judges who eventually found against the defendant who were "warmer in relating to trial participants…arguably attempting to appear fair". [52] Meanwhile, Rousseau and Foxen demonstrate that in the asylum determination context, empathy is frequently used by judges to confirm "the benevolent image that the administrative tribunal wants to project as a representative body of the host country". [53] In spite of this, they find that the unequal power relations of the hearing setting structure the transmission of the refugee stories in a way that often prevents a genuine emotional encounter between decision makers and refugees. Appeals to empathy rely on subjectivity which, given the cultural differences of the judge and appellant, may lead to arbitrary judgments based on misunderstandings. Moreover, displays of emotion have been shown to undermine and assist the appellant in their efforts to make their case for asylum. In particular, displays of "negative" emotion or "antipathy" often led to a hostile or disciplinary response. In this context, appellants may seek to disrupt the status quo of the hearing to make what they perceive to be an empathetic appeal. While sometimes these may be conscious and strategic, other times they correlate with the young people simply wishing to have their voice heard on their own terms. Because of the strictly codified nature of the appeals context, this can put them at odds with the norms of tribunal practice, including leading them to contradict arguments put forward by their advocates. The disconnect between the emotional reality of the appellants' lives and the legalistic procedure they are subjected to creates the socio-spatial conditions for what I term an "empathy gap."

The stakes of this "empathy gap" are especially significant for former unaccompanied minors for whom the tribunal context is often perceived as a rare opportunity to have a voice and speak authentically to their own experience from a situation of precarity. Interactions that reveal the empathy gap represent challenges to the structural norms that sustain the tribunal process. Young people in the tribunal who seek to exert agency and show themselves as empathetic subjects can paradoxically render themselves more precarious by framing themselves in a way that runs counter to legalistic norms: in such cases, the empathy gap is revealed but left unaddressed or may lead to punitive treatment. In other cases, the emergence of an empathy gap can lead to an empathetic response on the part of one of more observers, changing the process of the appeal.

This article seeks to move the debate in migration studies and critical geography away from the dualism of much contemporary literature on migrants' agency, which tends towards either seeing migrants as completely agentless on the one hand, or as "hyper agentic" on the other. In her 2010 ethnography of youth waiting in asylum reception system, Vitus, for example, argues that such individuals experience a state of total "de-subjectification" in which their agency is suspended: they become akin to Agamben's figure of total exclusion from the public and political realm, the homo sacer, [54] rendered by the state bureaucracy as "no ones," situated "no place." [55] In contrast, the influential "acts of citizenship" theory proposed by Isin and Nielsen [56] depicts a wide range of actions that have traditionally been understood as marks of subjugation as political acts. The concept of "empathy gap" identifies what happens when subjects reveal the dissonance between their subjugation to power structures and the will and possibility to transform them. While it stresses the agency asylum-seekers have in exposing the empathy gap for what it is, this approach recognises that it is not within their power to control how other stakeholders will respond.

3. METHODOLOGY AND ETHICS

This article draws on data collected in a 3-year research project between 2013 and 2016 that examined the fairness and consistency of asylum appeals. [57] The project explored differences in process in asylum appeal hearings through 390 observations in four UK asylum tribunals, collected by four researchers, alongside interviews with legal figures and appellants. Other publications explore the perspectives of the appellants and other court actors. [58] This article also focuses exclusively on the tribunal encounter rather than appeal outcomes. I conducted 80 ethnographic observations in Spring/Summer 2014 at a single tribunal site, of which 25 concerned former unaccompanied minors. [59] Alongside taking ethnographic notes on the court hearing and wider tribunal atmosphere, I completed a pro forma that contained a series of quantitative and qualitative questions detailing the type of case and process followed and behaviour of tribunal actors. This pro forma was developed based on preliminary ethnographic observations and with reference to best practice guidance for asylum tribunals. [60] Both data from the pro forma and ethnographic notes were coded for this analysis. Ethnographic notes include reflections from informal conversations with court actors for which I sought oral consent to take notes and include them in my analysis. I was struck by how readily different court actors were keen to talk to me with a frankness I had not anticipated, especially during breaks in proceedings.

The tribunals were open to the public although the research team wrote beforehand to let Her Majesty's Courts and Tribunals Service (HMCTS) know that they would be attending regularly during the fieldwork period to record data from the open courts and HMCTS replied in acknowledgement. Individual Judges were informed in person at the court when I explained I was a researcher there to document proceedings. In no cases was I asked to leave. The openness of the hearings made them a useful site to explore dynamics of inclusion and exclusion in relation to legal process and specifically, how tensions in this sphere play out between different actors representing the individual and society. Researchers observed from the gallery of the tribunal hearing rooms. I did not know the results of the appeals, nor did I have access to paperwork. Sometimes the Judge asked me to introduce myself. Where possible, I asked appellants either before or after the hearing whether they consented to the observations from their appeal to be included in the research. Every time they agreed and they appeared content to have a witness. Past research has shown that having observers influences immigration bail appeals by holding court actors to a higher standard of accountability, [61] although it is hard to assess the effect that the researcher has on the hearing through being there for the obvious reason that no comparator exists. Data from the project show considerable variability across judges and courts with regard to measures taken to ensure that appellants were able to follow and fully participate in the hearings. [62]

I have taken the decision to include informal anonymised quotations from judges where these comments were made during the open hearings and noted openly as part of my ethnographic observations. Formal permission from the tribunal president is required to interview judges; however, I did not conduct official individuals with tribunal judges nor any other party. All data presented in this article stem from observations of open courts where, usually, as well as myself, at least one other person was present. All judges and other actors knew I was a researcher documenting the appeals process in full—including the process of breaks and pauses—at the time of making their comments and I asked them each time if I could note down what they were saying. My approach is in keeping with that proposed by Alvesalo-Kuusi and Whyte [63] who argue that researching the powerful and "studying up" can meaningfully contribute to enhancing the public or common interest that is not exclusively defined for and by the academy but connects to all groups interested in knowing about the closed-off worlds of the powerful. As actors who wield much largely unscrutinised power, the inclusion of the contribution of judges in my ethnography is in keeping with this "studying up" ethos. There was nothing deceptive about my noting these observations. Indeed, I believe the benefit of including their comments, especially given that they were made in an open court, is in the common interest.

The sample included 16 Afghans (males), 3 Iraqis (males), 2 Vietnamese (1 female, 1 male), 1 Eritrean (female), 1 Zimbabwean (male), 1 Kyrgyzstani (female), and 1 contested Syrian/Egyptian national (male). Care has been taken to anonymise the identity of individuals in the data. Many appellants had their ages disputed. This included one gap of 9 years between the age the young person claimed to be and the age determined by the age assessment. Most of the appeals were conducted on the grounds of asylum, but also Article 3 (risk of return) and Article 8 (private and family life) of the European Convention on Human Rights.

Ethnographic observations focused on three main aspects of the hearings: legal process, legal argument, and the behaviour or performance of participants. I use these categories to structure my analysis of observed dimensions of precariousness below. My theorisation of the empathy gap was informed by consideration of all these aspects and the relationships between them. I consider the asylum process, the rhetoric and legal arguments made, and the ways in which actors presented themselves.

4. IDENTIFYING "EMPATHY GAPS"

In this section, I look at five recurrent themes that brought to the fore questions of emotional and subjective appeals in the court and raised the issue of "empathy gaps." They relate to a combination of legal process and argument: (i) age disputes, (ii) credibility, (iii) affective ties, (iv) right to voice, and (v) precarious legal status.

4.1. Age disputes

One especially contentious issue that appeared in almost all cases concerning former unaccompanied minors was that of age disputes. As O'Nions reminds us, "empathy is not something that should be the exclusive province of judges," [64] and court actors commonly made reference to their subjective interpretations of the appellant's appearance when commenting on their age. One social care professional (unusually brought in as a witness for the Home Office) commented casually through laughter before one appellant entered the tribunal that he was wearing a hat because he had started balding. On another occasion the clerk commented, "He doesn't look 21! My son's 21!" It was unclear the extent to which these informal comments shaped the Judge's interpretation.

Hostility on the part of the interpreter, however, appeared to have an unexpected and largely unnoticed impact on proceedings. On several occasions, I observed interpreters engage in what I read as "gossip-like" conversation with the Home Office representatives, legal representatives, and clerks when the Judge rose. In one case, after making disparaging remarks about her given age, the interpreter commented to the Home Office representative, "Right, you can grill (the appellant) now, there's someone who was well prepared!" During another break, a Home Office representative joked to an interpreter, "Don't look at me again like that when (the appellant) said (her step father) would kill her!" He proceeded to explain to me, "(the interpreter) rolled his eyes and made me laugh. I hope (the appellant) didn't see it!" Here too, the Home Office representative had cast doubt on the appellant's stated age. This finding may link to the "compassion fatigue" and "perceived manipulation" reported by Rousseau and Foxten in the Canadian context of asylum adjudication. [65] The risks of secondary or vicarious trauma have been well documented in the literature, with some concluding it may lead to a more hostile reception for asylum-seekers and refugees on the part of lawyers [66] but also other actors such as interpreters [67] and indeed even researchers themselves. In this case, it contributed to a delayed analysis and writing up of this author's findings.

Sometimes the position of the appellant as a child or adult was interpreted as conflicting with other information about their cases. Dichotomies, which raised eyebrows in the court, included an appellant's status as a child and full time (irregular) worker; a responsible parent and victim of trafficking and rape; someone who continued to be supported through the UK child care system as a "care leaver" past the age of 18 years but who was also a husband and a full time carer; and a successful college student who had absconded from the asylum system, breaching bail conditions. The tribunal seemed to afford little space for the nuances of individual's circumstances to emerge and this was experienced as frustrating by appellants.

While the extent to which the subjective judgments of court actors affect the proceedings and indeed the final judgments is unclear, they demonstrate the appellants' precarious position before the tribunal by drawing attention to their dependency on the will or favour of others and, as such, their position as subjects of a process in which chance and serendipity play a part. Although it is ultimately the Judge who holds the power over them, as appellants navigate the legal process, their position of subjugation is constantly reiterated through a barrage of micro judgments that were ethical as well as political that determined the judges' in situ procedural actions. Empathy gaps were opened and closed. These judgments appeared to be influenced by a more general culture of disbelief.

4.2. Credibility

Prior scholarship has documented the culture of disbelief [68] in the Home Office, which leads to an assumption of guilt or poor credibility with Souter going so far as to argue that there exists a culture of denial. [69] In recognition of the extent to which judges rely on poorly conceived credibility assessments to decide asylum claims, [70] both the International Association of Refugee Law Judges and United Nations Refugee Agency (UNHCR) have issued guidance on assessing credibility. [71]

These findings were validated in this research. A common joke among the older Home Office representatives was, as one put it to me, that "cynicism is an art perfected with age." The culture of disbelief thus coloured the precarious positioning of appellants in relation to legal process. One Home Office barrister told me that she had never met an asylum-seeker she believed—commenting, "they all lie." Another explained her cross-examination technique thus: "If I can't kill you in 10 questions it's not worth it. If you're lying, I'll find it out."

The culture of disbelief was most manifest in what one solicitor described as a "nit picking" credibility exercise carried out during cross-examination by the Home Office where they would try to "catch the appellant out." Little empathy was shown during these interrogations and the Home Office representatives used various techniques to assert power including fixing eye contact, raising their voice and repetition. Gaze has been found to be a key part of the non-verbal exchanges taking place during asylum hearings with appellants often reportedly unsure where to look to whom to address their answers. [72]

Home Office representatives frequently moved from one topic to the next regardless of the appellant's distress as evidenced by crying, shaking, or whispered replies. One field note reads: "the questions keep coming, one topic to the next. It's hard for me to follow, let alone the appellant." Judges, although less likely to express hostility than empathy, rarely intervened to counter particularly aggressive styles of questioning by Home Office officials. Home Office representatives thus regularly set the tone of the hearing.

Alongside Home Office representatives, legal representatives also appeared to change their style and approach depending on how credible they found their client. For as Campbell reminds us, "all actors in the asylum field, and not just IJs, contribute in different ways to judicial decision-making." [73]

With regard to this phenomenon, one Home Office representative commented, "they get paid regardless." Referring to what I observed to be a variable performance of one particular legal representative, he commented, "he has no chance in either of those. You could tell he didn't believe his own clients. He wanted to get out of here!" The culture of disbelief which coloured legal process was not only prominent among Home Office officials, then, but also legal representatives. Legal representatives sometimes commented to me that they did not believe their own clients and in some cases, this appeared to affect the quality of their submissions.

While, as discussed in the next section, unique affective bonds could foster empathy, the sheer repetition and monotony of certain types of cases and procedures also appeared to contribute to the culture of disbelief and lack of empathy. This validates a similar finding by Rousseau and Foxen. [74] On one occasion in my observations, a Judge who was assessing another Judge fell asleep. Three times he dropped his pen as he dozed off and I had to pass it back to him. Fatigue, repetition, and scheduling are therefore important dimensions that appeared to shape how the actors in the court behaved towards the appellant on a given day, including to what extent they were willing to lean into the empathy gap.

The credibility of appellants was questioned in all but one of the 25 appeals of former unaccompanied minors observed. Appellants were required to defend and justify their past and to prove they were who they said they were with documentary as well as oral evidence. Echoing the findings of Campbell, [75] several appellants appeared to be penalised for being unable to provide a range of documents to justify their accounts of persecution, despite many having left the country at the age of 12–14 years and no longer being in contact with relatives. These documents included death certificates and evidence of their family selling land to fund their flight. Most lacked the material documents to add credence to their claims.

Asylum-seekers have spoken about the psychological damage caused by having one's past disbelieved. This distress was manifest in the tribunals. Appellants frequently became defensive about having their accounts questioned, while others seemed bemused. As we will see in the following sections, they devised various strategies to seek to open an emotional connection and advocate for themselves in this context, though they had little control over how other actors responded.

4.3. Affective ties

In my observations, the subjective feelings of court actors appeared to shape the court atmosphere, with appellants occupying a continuum as objects of empathy or antipathy following a series of often explicitly normative judgments. This validates Campbell's finding that

decisions may be based in part on an [Immigration Judge's] unstated cultural assumptions and/or subjective views rather than a careful elicitation and assessment of all the facts. For these reasons, a "sceptical" approach to fact-finding leads many IJs to wrongly refuse a claim based on his or her assessment of the personal credibility or demeanour of an applicant. [76]

It was common for witnesses to express empathy with the appellant, declaring, as one social worker did, "I can only imagine how I'd feel in his situation," or, as one foster mother explained, "It would be like losing one of my own. I class him as my son." In these examples of affective ties, the emotional realities of individuals and the legalistic norms of the court came into conflict with an empathy gap arising: this offered opportunities for actors to lean into a sympathetic response or to ignore or seek to close the gap by being unresponsive to emotional appeals.

Judges and Home Office representatives openly expressed empathy and a more positive disposition towards certain appellants who they could relate to. One Judge revealed during a break, "Oh I don't know, my sympathies are all in one direction" and, in other cases, the Judge commented openly on how pleasant or intelligent the appellant seemed to them. How nice or intelligent the appellant is should not bleed into the legal decision, but it has been shown elsewhere that it can do. When appellants show themselves to wait well (e.g. by learning, conducting themselves appropriately, etc.), then judges have incorporated this into their decision making, formally and informally. [77] In one case, the Judge instructed the Home Office representative to "not make a meal of (the hearing)" having expressed at the start his sympathy that the appellant was a "nice lad." The same Judge, who one Home Office representative described as "soft," said that he despaired at some colleagues who "don't want to let anyone through." "I get quite depressed sometimes," he continued, "when this new [Immigration] Act comes in God knows what will happen. It will finish me off completely." His comments echo the sense of shame and frustration reported by Rousseau and Foxen [78] in their interviews with members of the Canadian Immigration Board. Another barrister hired by the Home Office explained how hard he was finding his secondment because he felt the process was not fair on the appellants. His nails were bitten to the quick and on several occasions, he sat with his head in his hands during proceedings. During a break in one particularly emotive appeal concerning a former unaccompanied minor who was a full-time carer for their spouse, he confided, "There's no chance this appeal won't be allowed and it makes me look like an idiot… [they] need the support of [their] partner!" Having seen him present on several occasions, I was struck by how unconvincing he was in his submission, shaking his head at the end.

Home Office representatives and legal representatives often commented that they could tell from the Judge's behaviour where their sympathies lay, how the hearing process would unfold, and even what the outcome was likely to be. Both sides said that they would change their behaviour depending on which Judge was presiding. For example, being "softer" on the appellant during the cross-examination for fear of annoying particular Judges who were themselves perceived to be "soft" or speeding up their questioning where Judges were seen as impatient.

Empathy based on common characteristics was shown by a gay Home Office presenting officer who was presiding over a case, which concerned persecution based on the appellant's sexuality. The Home Office representative was unusually compassionate in his tone during the interrogation and told me after the hearing that he could not even imagine what it would be like to "come out like that." It had been "bad enough" for him in England.

Female judges have been shown to be statistically significantly more likely to undertake a range of discretionary behaviours that are helpful for the appellant in understanding and fully accessing proceedings. [79] In three cases, female judges appeared especially sympathetic towards female appellants when they spoke, echoing past research that suggests female judges are more sensitive to appellants' pleas [80]. It may in part have been because they were also what the Judges variously described as "more unusual," and therefore more "interesting," cases. In one case, which was adjourned, the Judge lamented to the legal representative that she could not reserve the case for herself. To make her sympathies clear, she insisted the Home Office note that she had found the appellant to be "a very impressive young woman." Another female Judge—described to me by legal representatives as having an uncompromising question style, irritability, and "strict" decisions—was very kind to a young female appellant. She teased the Home Office representative in front of the appellant as a kind of "warning," the representative later suggested, for her to stop her interrogation. As well as forcing the Home Office representative to ease off her interrogation, the Judge's intervention had a clear impact on the appellant. She stopped crying and became more confident in her answers from that point onwards. This finding confirms that of Rousseau and Foxten [81] that women judges are perceived as more emotive and lenient. It also reminds us of O'Nions warning that without proper oversight, asylum appeals can "result in ethnocentric expectations of behaviour." [82]

For some judges and Home Office representatives, their evident empathy had little effect on their questioning style while, for others, it appeared to affect their performance and what was said. These variations in practice potentially affected the outcome of the hearing by impacting upon the ability and confidence of the appellant to take part in the proceedings, suggesting that to an important extent, appellants are judged and affected by informal as well as formal processes within the tribunal. Expressions of empathy on the part of the Judge and Home Office representatives have an important—and somewhat serendipitous—impact on legal proceedings. As one barrister explained, it can shape the type of questions that are asked and, in so doing, impact the material that could be used in an appeal to overturn the judgment. This puts the appellant in a precarious position in relation to the law.

In the same way that the court hearing could be influenced by expressions of empathy, expressions of antipathy were also seen to shape the legal process and make explicit the multiple ways in which the appellant was being judged based on subjective as well as objective factors. Often similar cases led to a decrease in empathy. A couple of times, the researcher observed comments such as "oh, the usual Pashtun case" or "oh no not another Kurdish case" made by actors on both sides. This echoes the "compassion fatigue" reported by Rousseau and Foxen [83] in their study of emotion in Canadian asylum tribunals.

If empathy sometimes led to more gentle questioning and warm body language, antipathy could render the atmosphere hostile with a tangible effect on the proceedings. One Home Office representative who I observed on various occasions would hum in between questions, mouthed "crap" in one case, and even verbalised their contempt (in two cases) by swearing, saying in one instance "how the Hell are you related?"—in neither case was this behaviour challenged by the Judge. Another Home Office representative rolled his eyes as the appellant cried. When the researcher commented to him about this later, he laughed and said "I'm not meant to do that." Here, the empathy gap was quickly closed.

How the appellants responded to proceedings and were able to balance "acting" with "emotion," as Rousseau and Foxten put it, varied greatly and related to their perceived right to voice.

4.4. The right to voice

The appellants I observed all had the right to have their voices heard in keeping with their rights as children at the time of their asylum application and as adults before the law. However, in keeping with court procedures, most were represented by a legal representative who spoke for them. The right to voice is one of the areas O'Nions examines as a component of procedural fairness and meaningful participation in her 2022 study of the experiences of female appellants. [84] Like her, I found that most participants wanted to tell their stories and not being able to do so led to feeling of "frustration and disappointment." [85] She cites Gumperz who poignantly suggests that this "curtailment of testimony when there is no common cultural context will place asylum seeker and judge on 'parallel tracks that don't meet'" [86] —this echoes my own observations as well as research elsewhere in Europe. [87]

Some appellants in my study showed little regard to what the legal representative construed to be in their best interests. Appellants frequently sought to speak for themselves, asking to speak outside of the allotted slots in a way that subverted the order and authority of actors in the hearing. This was received differentially by Judges. Some allowed them to speak outside of their allotted slots, others did not—another example of procedural variation. When appellants sought to speak, most commonly the Judge would ask them to tell their legal representatives their comment one-to-one. The legal representative would then advise them not to speak. This was seen to be in their best interests because they would frequently say things which did not fit the bill of the submission in their favour. In this way, young people's attempts to present themselves as subjects deserving of empathy and protection were often unheeded.

The notion articulated by more than one legal representative that it was better if the appellants did not speak and left it to them because of their poor knowledge of the legal system came to light in two examples where legal representatives expressed the view to me that the appellants had undermined their cases by speaking out. One appellant explicitly stated in cross-examination, that they did not feel they were at threat of persecution—a key aspect on which his asylum appeal was being determined in accordance with the 1951 Refugee Convention—but felt that they should have the right to live "safely and freely just like anyone else." He then spoke about colonialism. At this, the legal representative visibly winced. In another appeal, a witness volunteered quite openly that while she really loved her partner (the appellant), she had only married him because she thought that it would help to keep him in Britain. This information, naively volunteered by the appellant, put them in opposition to a bureaucracy designed to grant legal status according to strict criteria. When she spoke, the Home Office representative laughed in recognition of this. These examples suggest that calls for appellants to be given more voice in appeals are more complicated than simply granting them space to speak. Most appellants only met their legal representatives right before their appeal and were extremely nervous and mistrusting. One concerning incident featured a legal representative telling an appellant to "just shut up" during open court.

In informal discussions, various legal representatives revealed that they usually advised their clients not to speak in court since, without proper knowledge of the complex legal arguments being put forward, they could undermine their claim. This raised an important issue that some appellants reported feeling short changed where they had not had the opportunity to speak. This stems from a context where unaccompanied asylum-seeking children in particular are often unable to find safe spaces to tell their story. Often their case rests on an initial interview, which may have taken place when the child was distressed or experiencing symptoms that made recall of specific circumstances difficult. As O'Nions finds, "asylum-seekers are routinely denied voice and become passive bystanders in a decision which could not be more important." [88] This is especially critical for the potential for emotional encounters since she argues that "it is the act of telling that enables empathy." As well as creating a space for an emotional encounter where empathy can arise, O'Nions argues that "for appellants, voice has an important therapeutic value in demonstrating that their experiences are respected, restoring dignity and agency which are typically lost in the asylum process." [89]

Informal discussions with appellants and lawyers revealed a general understanding that the appeal was a performative space. One lawyer explained that clothes could send a powerful signal: while young appellants sometimes borrowed suits to wear, he felt this could undermine their claim since the argument that would be put forward was based on their vulnerability. "Best case they come in school uniform," he explained.

The construction of narratives was often orchestrated through a series of binaries in which the individual was shown in opposition either to an "ideal" or "worse case" scenario. [90]

Rousseau and Foxen explain how possibilities for empathy are challenged "when the Other is socially constructed through split representations of good and bad, legitimate or illegitimate, as is the case for the refugee." [91] The value of performative tropes in being recognised as a "legitimate" refugee has been well documented in the Refugee Studies literature internationally since the inception of the discipline. [92] This research shows, as Sigona has pointed out, that refugees' narratives of displacement and asylum are produced within a set of pre-given discourses and power relations. [93] Being offered the "highly valued" prize status of refugee, as Zetter has documented, requires conforming to a bureaucratic norm, [94] which in this case relates to a double stigma and denial of agency here—as a child and as an asylum-seeker. The culture of disbelief and hostile environment [95] pervades the entire system and will undoubtedly influence the approach including prejudices of the key actors. [96]

By challenging these pre-conceived performative tropes, "refugees can open up transformative opportunities and unsettle given truths on the colonial footings of the humanitarian regime and its moral order". [97] In several instances, appellants showed resistance to the binaries imposed in the tribunal. These pre-given discourses include tropes of the good versus bad migrant; agentic versus vulnerable migrant; deserving versus undeserving migrant; child versus adult migrant; and refugee versus economic migrant.

Often, efforts to present themselves favourably were swiftly undermined by the Home Office representative who sought to reassign them a negative stereotype. One Muslim University student who was dressed smartly took care to show deference to the Judge calling her "ma'am" and thanking her for her time. In his final submissions, the Home Office representative nevertheless argued that the appellant's "promiscuous behaviour" was in tension with the image he had presented of himself as an honourable Muslim. His girlfriend was pregnant and it had been "morally dubious to get her up the duff." This was how the Home Office representative had put it to me during a break in which the Judge was still present. The Home Office representatives frequently expressed feigned or real surprise upon the revelation that an appellant's character was tainted by some suspected "foul play" in a way that challenged the image that was otherwise being presented either by the appellant or their legal representative. "There was an arrest!" exclaimed one Home Office representative in a high-pitched tone, eyeing the Judge in relation to one appellant's record of irregular employment. In response, the appellant tried to defend himself to explain but was denied the right to speak.

As well as expressing feelings of despair and powerlessness, [98] the fact of not feeling heard led some appellants to become visibly distressed. One young man had a documented anger management problem because of ost traumatic stress disorder (PTSD). Nevertheless, when he challenged the Home Office representative when faced with particularly intense and long questioning, the judge responded dismissively. In response to the appellant's comment, "It's out of my control, believe me, IT'S OUT OF MY CONTROL…" she waved her hand and told him to "stop getting so excited." After the hearing, the Home Office representative told me, "he lost his legs by his attitude alone." This incident recalls the findings of O'Nions (2022) that symptoms of PTSD are often not adequately recognised and catered for in asylum procedures in a way that can undermine the witness. Feelings of anger have been reported in other asylum contexts. [99]

Other young people sometimes struggled to conform to the etiquette of the court. In more than half the cases observed, the appellant's body language was defensive or hostile; sometimes they would tut, choke, laugh and, in two cases, the appellants shouted out in opposition. It was made apparent through comments on the part of the judge including "calm down" or "you're not helping yourself" that frustration or anger was not welcome in the court by the appellant. This was despite the fact that, in many cases, it had been declared at the start that the appellant had mental health problems. In a power imbalance, judges were also allowed to get angry, showing little tolerance for interruptions and on occasion chastising the appellants for speaking too quickly or passionately. Comments to the effect of "you're not helping yourself" as a means to regulate the appellants' behaviour were made on three occasions by two different judges, suggesting that not just the procedural elements but their decision may have been influenced by the appellants' behaviour in the tribunal. Judges showed particular consternation where it appeared that the appellant was evading the question. Byrne acknowledges that irresponsive answers may, however, "be more the result of culture and education than an indicator of truthfulness." [100]

One way in which appellants sought to exert agency was through the rejection of expert knowledge, which was materialised in a range of academic reports, medical reports, and age assessments. In response to a government report that argued that Kabul was safe, one appellant challenged the expertise of the entire court thus,

The Taliban are a visible presence in the town centres. They are just normal people, they hang about… You don't understand these things (voice cracks).

In another instance, the appellant dismissed a medical report which had been commissioned by the Home Office, "Ma'am I'm telling the truth," he appealed to the Judge, "Scars don't just appear, they come from incidents." In three cases, appellants wrote their own notes as the appeal progressed, enacting themselves as oppositional actors rather than passive respondents to questions. They were ignored and in one case chided for this note taking.

Language was a key site of tension for those who sought to have a voice. [101] Twenty-one out of 25 observed appellants used an interpreter and in over half of these cases, they switched from using an interpreter to speaking in English at some point. In several cases, they were reprimanded for this and it was stressed by the Judge that they either had to go through the interpreter or only speak in English, which affected how they were able to use their voice. Some Judges were more lenient with this language-switching—another example of inconsistency in process. One appellant told the researcher after his hearing that he felt this was unfair as he only knew some words in his mother tongue and others in English, which was the language in which he had learned his teenage vocabulary. "There's no word in my language for Facebook" he told me and no word in English for certain rituals that were practiced "back home." Appellants frequently demonstrated dissatisfaction with interpreters and Judges showed little sympathy for this in the majority of cases. This is demonstrated in the below extract:

Interpreter: (looks resigned and laughs a little) (The appellant's) trying to teach me how to interpret.

Appellant: No, no, but if I say something in my language, I want it replayed straight away, that's what I want.

Judge: Well, what you want and what you get may be two different things.

(Appellant clearly frustrated)…

In this case, the judge appears to discipline the appellant, explicitly undermining his articulation of concerns of procedural unfairness. Efforts to assert themselves were frequently repressed and defined as unruly.

Use of interpreters and cultural relativity of words and concepts are two of the five factors identified by Kalin as preventing an undistorted interaction between asylum-seekers and officials (the others being the manner of expression, different perceptions of time, and the cultural relativity of lies and truths). [102] Meanwhile, Byrne identified the following barriers to communication, which impede effective assessment of credibility by the Immigration Judges: problems of interpretation in an oral hearing, mistakes in the transcription of serial interviews, and cultural issues that impede translation and evidentiary barriers. [103] All of these were features of the hearings I observed.

These examples show that the question of asserting voice for appellants is a complex one and it is very difficult to anticipate how certain behaviours will be received.

4.5. Precarious legal status

Recurrent lines of questioning concerned the credibility of the appellant, as we have seen. A second recurrent line of legal argument concerned the precarious status of the appellants vis-a-vis their lives and achievements in Britain. In this case, legal actors and appellants sought to appeal to the judge's subjective sense of fairness related to ideas of belonging and community. The fact of developing time and ties relates to Article 8 of the European Convention on Human Rights, which accords "the right to private and family life" but judges exercised a significant degree of discretion in how this was interpreted. This was a line of arguing where emotions appeared to run high. In some cases, it was argued that the integration of the young person was meritorious for their case whereas in others it was used as grounds to justify their independence and potential ability to reintegrate into their home countries. This is an example of "common sense" reasoning, which is used to fill in the gaps of rigorous legal decision making. As Campbell found,

[D]ecisions may be based in part on an IJ's unstated cultural assumptions and/or subjective views rather than a careful elicitation and assessment of all the facts…For these reasons, a "sceptical" approach to fact-finding leads many IJs to wrongly refuse a claim based on his or her assessment of the personal credibility or demeanour of an applicant. [104]

A judgment of the appellant's character is part of how the judge balances what is in the interests of the country with the interests of the appellant.

The lack of security and stability of asylum-seekers' foundations in the past and future has been well detailed as a crucial component of their wellbeing. [105] Low levels of asylum support coupled with a heavily restricted right to work, poor housing, and little or no say over where they will be dispersed to live as they await the outcome of their asylum claim mean that many struggle to build a foundation. [106] Other young asylum-seekers in particular have been shown to demonstrate high levels of determination and resilience in working towards future plans in the face of structural obstacles. [107] But poor mental health caused by past trauma coupled with anxiety about one's future asylum claim can also prevent people from socialising and working towards the future they desire.

Some have argued that the "hostile environment," sustained, among other factors, by low levels of support for asylum-seekers, serves as a deliberate disincentive for asylum-seekers to integrate and imagine a future in Britain. [108] The prevalence of temporary leave to remain among child asylum-seekers, which expires when they turn 17.5 years, serves in particular to destabilise their sense of future. [109] Chase [110] has demonstrated how this affects their subjective wellbeing through destabilising their ability to imagine a future self and establish a sense of what Giddens [111] has termed ontological security.

In four cases with different representatives, the Home Office used the fact of the precariousness of the appellant's immigration status to argue that they had no foundations in the UK, despite, in one case, them having spent over 6 years there.

In the first case, the Home Office presenting officer argued that the appellant's relationship with his wife of over a year and a half was less stable and meaningful because the appellant had had Discretionary Leave to Remain. He stated:

Is it fair to say that when you started your relationship, you both knew you were in a pretty precarious relationship as you could be returned to Iraq? (…) that in my submission is a powerful fact.

The appellant had been in the UK for more than 3 years and was his wife's full-time carer.

In a second case that concerned a former unaccompanied minor with a place to study neuroscience at an esteemed University, the Home Office representative argued that the appellant's educational achievements were "gifted" to him and carried no weight in terms of building the foundations of a private life in accordance with Article 8.

The following transcript concerns the case of another former unaccompanied minor who had spent his formative years in Britain. Again, it suggests that educational achievements and relationships that would normally constitute a private and family life are void of their significance and rendered without foundation because of the appellant's time-limited legal status.

Home Office barrister: When you were doing these qualifications you knew full well that your asylum claim was dismissed and you could be removed from the UK.

Appellant: I just HAD to believe it.

Home Office barrister: You might have BELIEVED it, but you certainly knew it was not the case.

Appellant: I was just so into education.

Home Office barrister: But you always knew ultimately you might be asked to leave the United Kingdom?

Appellant: Yes

Home Office barrister: And equally any relationships you've had with women have been on the basis that you have no right to stay?

Appellant: Yes, I always tell them…

In opposition to the legal argument put forward by the Home Office that the appellant's ties in Britain were less important because they were forged when the appellant has a time-limited immigration status, legal representatives provided a counter argument in which the appellant's ties were seen to be more, not less valuable because of their time-limited foundations and the appellant's precarious leave to remain. In other words, time-limited legal status was used by the Home Office to undermine the solidity and credibility of the appellant, but by appellant representatives to illustrate their clients' resilience and character—to open up an empathy gap and seek an empathetic response. As one legal representative explained,

The fact this young man came here in his early teens and has reached this level of prosperity in the education system not only makes him exceptional in terms of his private life, but I STRESS he is precarious…What we say with adults, that you came here and knew you were in a precarious situation when making private life, just doesn't apply with children.

The argument made by the legal representative subverts the Home Office's normative stance on precariousness in two main ways. First, she argues that the appellant's ability to create a sense of stability whilst in possession of precarious immigration status makes his achievements more, not less meaningful. Secondly, she evokes an argument put forward elsewhere by Carens [112] that migrants develop de facto "social membership" of a host country through time spent and ties developed there. Carens argues that for migrant children who spend their formative years in a host country, regardless of their immigration status, the process of acquiring de facto membership through social membership is accelerated. "The ten years from six to sixteen or from eight to eighteen," he argues, "are even more important in creating a substantial connection to the country where one lives than the first ten years of life." [113]

One legal representative made this point in their submission with regard to her client who had spent 6 years in the UK from the age of 14 years:

On Article 8 the legal representative argues the appellant has come here as a young man and been here for approaching six years. Six years for someone who is in the formative part of their life is more significant than for someone who isn't.

The legal arguments put forward by the Home Office and legal representatives in asylum tribunal cases pertaining to former unaccompanied minors therefore hinge on different normative ideas of precariousness and, in particular, the relationship between time-limited immigration status and the establishment of a private and family life.

We have seen how precariousness of status was used as both a means of dismissing appellants and as a way to open an empathy gap by arguing that their achievements in this context were particularly meritorious. Precariousness in this rendering is not, as Butler argues, "simply an existential condition of individuals, but rather a social condition from which certain clear political demands and principle[s] emerge." [114] How these political demands are met is largely determined by the proceedings of the tribunal and the response of the judge.

5. CONCLUSION

This article has explored the ways in which precariousness is manifested in the legal process in the tribunal, through the appellant's positioning as being dependent on the will or favour of the other actors regarding how the appeal, and access to justice in this context, unfolds. We have seen that in various instances, there may appear an "empathy gap", which opens a space of connection between their subjective experiences and the norms of the tribunal. However, this often depends on if and how the appellant is able to speak, something which this study found to be highly inconsistent. Where the appellant can express themselves through another means such as demeanour or even clothes, this can lead to an emotional connection—whether positive or negative. This is something that may carry even greater weight where they cannot speak. This can shape the course of the hearing which can, in turn, have an impact on the final decision. If, as O'Nions argues, judges can and should use their discretion to apply "empathy-informed reasoning," this study echoes her call for more training, reflection, and above all, clarity of scope in appellants' inclusion in appeals. [115] As she argues with regard to female asylum appellants,

Providing an opportunity for voice also has an intrinsic value as the act of telling the story enables empathy, expanding the judge's cultural repertoire and reducing the likelihood that credibility will be measured against gendered ethnocentric expectations…for meaningful participation that is not simply tokenistic, judges should take care to listen and avoid interruption, applying flexibility and allowing for answers that may not always conform to the expected structure of legal process. [116]

It is worth noting that, compared to O'Nions's work, [117] passivity and voicelessness are even more acute with these appellants and we should expect the judge to address this. This calls for greater safeguards to adhere to the best interests principle. Appeals for trauma-informing the asylum process, which have been co-developed with young people seeking asylum by the Lives on Hold our Stories Told project, are especially welcome in this context. [118]

Without systematic recognition of the power of empathy and a "structured approach" to fact finding, [119] as we have seen, appeals for "the empathetic eye" [120] to exist alongside legal formalism can fall on deaf ears or even have adverse effects. They can also constitute yet another variable in what has already been shown to be a procedurally inconsistent domain of law. [121] As Campbell explains, the costs of such inconsistency can be poor decision-making that leads to refoulement, unnecessary repetition of hearings with long wait times and the undermining of the legitimacy of the judiciary as a whole. [122] This is because poor decisions are produced via lack of confidence and distrust in the process, which inhibits and distorts disclosure, which impedes access to justice.

The concept of "empathy gap," introduced here and explored across five thematic domains of legal argument and process, seeks to recognise the agency displayed by and, in some cases, accorded to former unaccompanied minors in asylum tribunals while at the same time acknowledging the conditions of subjugation and instability that inhibit this arena. "Empathy gaps" reveal a disconnect between the young person's emotional reality and lived experience and the legalistic norms of the tribunal. This gap, when opened but left unheeded, as O'Nions has found in her study, can lead to feelings of disempowerment and a refusal to accept the fairness and validity of final decisions. [123]

"Empathy gaps" can be seen as a small and idiosyncratic antidote to the culture of disbelief in which many former unaccompanied minors find themselves, something we have observed to be heightened through disputed age assessments and the questioning of the credibility of initial statements. This, we have seen, is in spite of them being supposedly given the "benefit of the doubt" and having their claims assessed as children in legal terms. This article has documented how "empathy gaps" can manifest in a number of ways and be instigated by various court actors, not just the appellant and not just the Judge, and that often these are based on affective ties. But ultimately, though they can be initiated via an emotional response or through the provision of additional affective information, actors have little agency over how others will respond—that is, whether their invitation to connect emotionally on their own terms will be granted not, and what the implications of this might be. A young person may emotionally advocate for their right to education, for example but, even if they are allowed to speak, whether this impacts the judge's ruling and bolsters or undermines their asylum claim is out of their hands. Ethnographic evidence from this study suggests that, where the appellant is a former unaccompanied minor and their claim is based on a particular vulnerability, displays of such prowess may even undermine their claim, as when it is argued that displays of competence or courage could help them to reintegrate into their country of origin. Evidence of integration on the grounds of Article 8 which may show "good character" and appeal to the judge's sensibilities, as we have seen, may also lead to hostile Home Office questioning of the value of the time and ties they have spent in Britain given their precarious legal status, alongside bolstering the argument that they have accrued extra integration skills to use "back home."

This article has shown that in asylum tribunals, former unaccompanied minors are assigned a precarious identity and also exert agency in situating themselves in relation to the societal norms represented by the bureaucracy of immigration control. We have seen that some young migrants present themselves as not simply wanting to adhere to—and be accepted by—legal norms—but as seeking to contest and transform them. This observation echoes research within the sociology of childhood more generally, which sees children not just as "adults in the making" whose lives and identities are in a precarious state of becoming, but as actors whose lives and identities carry meaning in the present without being dependent on the recognition or approval of adults or, in this case, of the law.

Although we have observed multiple incidents where they have expressed agency, it is important to note that former unaccompanied minors are often forced to live lives and present themselves in ways that are in tension with society and in opposition to the bureaucracy they encounter. When they are allowed to speak, it is usually by default from the margins and, as such, efforts to curry empathy may simply serve to reinforce the marginal position from which they speak. Norms are of course understandable in a court of law, but as it stands, both asylum norms and human rights norms leave little space for the complexity of young people's formative experiences and current lives. This research thus endorses O'Nions' argument that adaptations to procedural rules need to be accompanied by "empathy-enhanced reasoning requiring judges to reach beyond their personal experiences and ethnocentric, gendered expectations." [124] To avoid empathy-enhanced reasoning becoming yet another variable in the judicial process, systematic training and monitoring is required.

Because of the relative lack of spaces in which they can express themselves and their unfurling identities, asylum tribunals are seen by appellants as important spaces to have their voices heard. This stands at odds with an asylum system based on complex protocols where the voice of the appellant is just one of a number of competing odds. To counter this, young asylum-seekers should be given access to more spaces outside of the asylum tribunal to express themselves on their own terms. Moreover, more thorough preparation and more time to get to know each other between the appellants and their legal representatives would go a long way in making sure that appeals for empathy are effective in advancing the case to hand.

Footnotes

[124] Ibid., 501.