Academic study looks at appellant vulnerability and judicial behaviour in UK asylum appeals

As highlighted earlier this week on Free Movement, the academic journal Social & Legal Studies has published a study looking at appellant vulnerability and judicial behaviour in UK asylum appeals.

Image credit: UK GovernmentThe article is authored by Nick Gill (University of Exeter), Rebecca Rotter (University of Edinburgh), Andrew Burridge (University of Exeter) and Jennifer Allsopp (University of Oxford) and you can download it here or read it online here.

For the study, three researchers observed 240 substantive asylum appeal hearings in the First-tier Tribunal (Immigration and Asylum Chamber) during 2014 and one researcher observed a further 50 substantive hearings of Detained Fast Track (DFT) asylum appeals. In total, over 90 different judges were observed.

The article explains: "We watched for numerous helpful discretionary judicial behaviours and analysed their correlation with appellant vulnerabilities across 290 observed cases. Some of the behaviours constitute practical checks to make sure that the appellant can follow the hearing. Other behaviours are related to showing the appellant respect during the difficult and often intimidating appeals process. Other measures are designed to ensure the comfort of the appellant during the process. We focused on behaviours that were unambiguous to observe from the public gallery."

Overall, the study finds that judges were more likely to use their procedural discretion in ways that are indifferent to or exacerbated the vulnerabilities of appellants rather than to redress them. The authors say their findings lend support to calls to limit judicial procedural discretion.

The researchers watched for 13 helpful discretionary judicial behaviours and found they were undertaken 51.8% of the time on average. The article states: "For some behaviours, judges were relatively consistent. For example, in 97.8% of cases, judges asked the interpreter and the appellant if they understood each other, while in most cases (88%), judges did not inform the appellant that they could request a break. More often there was a disparity in judge behaviour, however. Judges stated, their independence in around a third of cases (35%), explained that the appellant should say if they do not understand anything around half the time (53%) and explained the purpose of the hearing (61%) and how it will proceed (66%) in roughly two-thirds of cases. It is when some judges follow guidance or implement advice and others do not that procedural inconsistency emerges."

The study found that the strongest evidence of vulnerability-redressing discretionary judicial behaviour was related to appellant age. In particular, "judges tend to undertake the helpful behaviours we watched for more frequently when appellants are under 18." Appellants aged over 50 were also more likely to benefit from helpful judicial behaviour than appellants aged 18-49.

Appellant gender was found to be a significant factor for vulnerability-neutral discretionary judicial behaviour, with male appellants having an estimated 20% greater chance of helpful judicial behaviour over a female appellant.

The gender of the judge was also found to be highly significant, as "the odds of a helpful judicial behaviour when the judge is female is estimated to be 80.7% higher than when the judge is male."

Among the study's other interesting findings are that helpful judicial behaviours are highest on a Monday, steadily decline on Tuesday and Wednesday, then increase on a Thursday, before declining to a weekly low on a Friday. The differences were found to be statistically significant.

The location of the hearing centre and the appellant's manner of dress were also found to influence helpful judicial behaviours.

The study's methodology did not, however, address the nationality or race of appellants.

While noting that interpreting its findings requires caution, the study concludes: "The judges we observed used their procedural discretion over helpful behaviours less frequently to redress vulnerabilities of appellants than they did in ways that are indifferent to these vulnerabilities, exacerbate them, or in ways that are correlated with extraneous factors. Although judges more frequently undertake helpful discretionary behaviours when the appellant is young, they also more frequently undertake these behaviours when the appellant is male, the judge is female, the appellant is dressed smartly or casually, and the hearing is heard earlier in the week. We found little evidence that most helpful behaviours we watched for were any more or less likely when the appellant is unrepresented. We also found weak evidence that the location of the hearing is correlated with the helpfulness of judges."

The study continued: "There are clearly dangers to an overly rule-bound judicial approach … Yet our findings raise concerns over the inequitable use of procedural discretion when it is afforded to judges. Substantive discretion – that is a judge's freedom to reason and decide without encumbrance – is a different matter and a central requirement of judicial independence. We have demonstrated, however, that where procedural discretion is allowed then patterns of implementation have developed that do not redress disadvantages in the ways that are intended, but that more often either ignore disadvantage, vary according to extraneous influences or, in the worst cases, disadvantage groups that are already marginalized."