'Bogus' asylum seekers? The ethics of truth-telling in the asylum system

The British tabloids and the Home Office are united by their assumption that asylum seekers who lie during their claims are undeserving of protection. Yet this view runs contrary both to widely held moral principle and refugee law.

James Souter
26 October 2016

In 2007, the British Home Office refused asylum to a Congolese individual who claimed to have been persecuted by militia. In its refusal letter, the decision-maker speculatively found that ‘it is not considered credible that after going to the trouble of attacking your family in 2004, the militia would have then allowed you and the rest of your family to reside in peace for two years’. As with many such letters, the Home Office inferred that, because it found the applicant’s testimony to be incredible, they faced no risk on return. Had the case been public at the time, the tabloids would have most probably concluded that this was yet another case of a ‘bogus’ asylum seeker, lying through their teeth to gain access to the British benefits system.

This case is just one example of how judgements concerning the honesty of asylum seekers have become highly potent. The notion of the ‘bogus’ asylum seeker has become a familiar refrain by the tabloids and many politicians, casting most refugees as fraudulent ‘economic migrants’. Similarly, as the refusal letter exemplifies, the Home Office has made asylum seekers’ credibility the key question when deciding their claims, giving rise to its well-documented culture of disbelief in which decision-makers often presume their deceit from the start. The tabloids and the Home Office are united in one key respect: their assumption that to be dishonest in an asylum claim is to be undeserving of protection. Both effectively assume that if asylum seekers are insincere, they face no risk on return.

This assumption urgently needs to be challenged, not least due to its serious human consequences. The notion of the ‘bogus’ asylum seeker has done a good deal to weaken public support for asylum, heavily restricting the political space for more inclusive policies which would provide greater protection to refugees. At the same time, the culture of disbelief is one stage in an unjust process of exclusion which frequently leads to their destitution and deportation.

The assumption also affects employees and volunteers within the refugee sector who, while often motivated by compassion and a sense of injustice, may struggle to prevent it from colouring their view when interacting with asylum seekers they believe may have lied. When recently facilitating a discussion on this topic at the Oxford-based organisation, Asylum Welcome, I found a real appetite to make sense of the moral issues surrounding truth-telling in the asylum context.

Refugee advocates, such as the Refugee Council, have often pointed out that it is, strictly speaking, impossible to be a ‘bogus’ asylum seeker, as anyone is entitled to apply for asylum under international law, whether or not they are eventually found to be entitled to refugee status. It is less often recognised, however, that the notion that to be dishonest is to be undeserving flows directly from the phrase ‘bogus asylum seeker’ itself, for the word ‘bogus’ can mean both ‘untruthful’ and ‘groundless’. Yet these two notions need to be decoupled, for it is perfectly possible that asylum seekers may lie during their claims while being fully eligible for asylum. Asylum seekers may lie precisely because of their risk on return, not because of its absence.

How might this risk lead asylum seekers to lie? As Caroline Moorehead has discussed, they may lie because they are ‘terrified that their real story is not powerful enough’ to gain the protection they may badly need. This is a completely legitimate fear in a process that is partly founded on what Chloé Lewis and Azeemah Kola have described in a related context as a ‘hierarchy of suffering’, whereby the Home Office often finds return to anything but the most intolerable conditions not to engage the UK’s legal obligations. The threshold for what counts as persecution is set so high that the Home Office could readily concede that asylum seekers will be returned to a dire situation, while concluding that it is just not quite dire enough.

Asylum seekers may also be compelled to lie because the only way they can secure protection from serious harm is to fit themselves within restrictive refugee law. Current law privileges some forms of harm, such as persecution, over others, such as material deprivation or lack of vital health care. Although the broader category of subsidiary protection – which covers some asylum seekers at risk of other forms of serious harm such as the death penalty or torture – has been established in EU law, in practice others still fall through the gaps.

Lying may also be a response to asylum seekers’ enforced state of limbo while their claims are being decided, not knowing whether they will be granted asylum or returned to the situation they fled. In this precarious state, without entitlement to work, it is entirely unsurprising that, as Moorehead has also discussed, rumours and ‘good’ stories circulate which might just help to cut short this agonising waiting time.

All this strongly suggests that the asylum system itself effectively produces lying. Its hierarchy of suffering, restrictive legal provisions and enforced limbo can all strongly encourage, if not compel, asylum seekers to lie to secure protection. However, the role of the system in generating these lies is ignored and the blame is often placed squarely on the shoulders of the asylum seeker. The accusation of the ‘bogus’ asylum seeker thus becomes something of a self-fulfilling prophecy, as the shortcomings of the system are displaced onto its victims.

This assumption is often expressed, especially by the tabloids, in a highly moralised manner: not only are dishonest asylum seekers ineligible for asylum, but their lies are morally wrong. A good way to test the validity of this judgement is to ask whether it is consistent with wider moral beliefs on lying. What, then, do most of us believe about the ethics of lying? A famous example discussed by the German philosopher, Immanuel Kant, can help to bring our intuitions into focus here.

Imagine that a murderer knocks on our door and asks us where a friend, who he is pursuing, is staying. Kant takes the extreme view that to lie to the murderer would be morally wrong, even if that lie would save the friend’s life. We can confidently bet that most people would reject this view, and that they would do so because they believe that lying is morally unjustified unless it is required, or at least understandable, given a desperate or exceptional circumstance.

If we apply this principle to the asylum system, then the blanket moral condemnation of all asylum seekers who lie cannot be sustained, for the examples discussed above suggest that some asylum seekers are in precisely the kind of desperate and exceptional circumstance which makes lying either necessary or morally understandable. Necessity knows no law, as the adage goes. The tabloids and the Home Office have simply failed to ask why asylum seekers might lie.

This inconsistency between widespread moral belief and our condemnation of asylum seekers who lie also belies a double standard: we effectively hold asylum seekers to higher moral standards than we apply to our fellow citizens. While we acquire membership through the arbitrary fact of birth, asylum seekers are effectively called upon to demonstrate their honesty and moral virtue in order to secure the same status, despite the fact that they may be in pressing need of protection. While most of us accept the general permissibility of lying in extreme circumstances, many of us become rigid Kantians when considering the claims of asylum seekers, expecting the utmost sincerity when they knock on the door of our state. In doing so, we effectively transplant our everyday ethics of truth-telling from the context of our relatively privileged lives to the entirely different scenario facing asylum seekers. We forget that this ethics is something of a luxury.

This double standard is highly ironic, as it effectively inverts or distorts legal principles applied to fellow citizens. As Didier Fassin recently observed, it renders asylum seekers ‘suspect until proven sincere’. Moreover, the standard of proof in asylum law is meant to be lower than that within criminal and civil law, which more often involves fellow citizens. As Guy Goodwin-Gill and Jane McAdam have noted, given the extremely high stakes involved for the asylum seeker, all that is required is that there be a ‘reasonable chance’ of persecution on return.

None of this is to deny that some lies made by asylum seekers can be morally wrong, and that some asylum seekers who are ineligible for asylum may lie to cover their lack of risk on return. It is only to argue that it is far from necessarily being the case. According to the intuitive view outlined above, if the lie is not the result of a desperate or exceptional circumstance, then it is morally unjustified. If an asylum seeker faces no risk on return and is using the asylum system as a means of gaining residence only, then they are not entitled to asylum and their lies to that end are morally wrong.

It is not just on a moral level that the requirement of unfailing honesty is unwarranted, however. It also has little legal basis. The 1951 Refugee Convention, as Goodwin-Gill and McAdam have also observed, ‘makes no provision as to character’. Eligibility for refugee status turns on whether the asylum seeker has a well-founded fear of persecution, not whether they are honest. This is also recognised in the UN High Commissioner for Refugees’ Handbook, which recognises that ‘untrue statements by themselves are not a reason for refusal of refugee status’.

It is true that asylum seekers’ lies, whether justified or not, present a serious difficulty for decision-makers, who must sometimes seek to identify risk on return in spite of, not with the help of, the asylum seeker’s testimony. Yet an improved approach, focused on identifying this risk rather than on spotting falsehoods, would not take the identification of a lie as necessarily fatal to an asylum claim, but rather as a starting-point for further investigation, to be undertaken perhaps with the help of further country of origin information.

What is needed above all is a reappraisal of the role of character in asylum. It is often implicitly assumed that shortcomings of character imputed to asylum seekers – who are often characterised as liars, scroungers and cheats – render them undeserving of our protection. Yet the fundamental purpose of asylum is not to help us select morally desirable individuals for membership in our polity, but rather to protect individuals from serious harm. Politicians have often claimed that the refusal of ‘bogus’ applicants is necessary to uphold the integrity of the asylum system. On the contrary, the demand of unwavering honesty has obscured asylum’s fundamentally humanitarian rationale.

This article was first published on openDemocracy in 2011


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