Psychological research shows that honest people, particularly when traumatised, will remember events inconsistently. Judges in asylum cases need to listen to the best scientific evidence on human behaviour, not just their 'common sense'.
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Imagine this: in front of you is a person who says she’s been tortured, but there is no visible evidence of this; she alludes to sexual violence, but won’t come right out and say it; she says she’s come from one country, but she arrived by plane from another – and she’s carrying forged travel documents anyway.
You have to decide whether her story of fleeing persecution, and her assertions that if she were to return, she would face more persecution, are true. How will you decide? This is the task that faces state and judicial decision makers in the asylum system in the UK and the 145 states across the world who are signatories to the1951 Geneva Convention Relating to the Status of Refugees. Decision making in the asylum system is difficult; with a dearth of corroborating evidence available, judgements often rely on an assessment of the applicant’s credibility.
How do decision makers assess credibility? The Independent Asylum Commission’s report ‘Fit For Purpose Yet?’ quoted immigration judges as saying that they made their decisions on the basis of ‘common sense and experience’ – is this good enough? Are they basing their assessments on false assumptions, or on the evidence for what is known about how memory works? What is the psychological evidence for how memory works?
The two reasons most commonly given for refusing a person’s claim for asylum, on the basis of finding her not to be credible, are discrepancies in repeated retellings of her narrative, or delay in disclosing relevant information. Underneath these assessments of non-credibility are some key assumptions, for example, that a true account is one that is consistent, and remains the same on repeated retelling; or that a person who is genuinely afraid for their life will know how the asylum process in the UK works, and will comply with all that’s required to prove their credibility.
In the asylum process, where so much weight is placed on assessing the credibility of the person who is claiming asylum, an understanding of psychology is most pertinent. Melanie Griffiths, ESRC Future Leaders Fellow at Bristol University, has given a neat description of the stereotype of the ‘ideal’ asylum seeker as one who is, among other things, “expected to have a good recall of events, provide a plausible account of what’s happened to them in a consistent and unhesitating manner, without variation”, and so on.
A study of 117 determinations by immigration judges of asylum appeals,‘What Assumptions about Human Behaviour Underlie Asylum Judgements’, by Jane Herlihy, Kate Gleeson and Stuart Turner, asked what assumptions formed the basis of judgements in these cases. The researchers found the judges’ assumptions included beliefs about what makes a truthful account: namely that it is consistent, clearly remembered, and contain rich detail. Are these assumptions and beliefs about how memory – and remembering – works consistent with the evidence? Legal decision making is necessarily about making difficult judgements, but there is a danger of making unfair decisions – and, in the case of asylum decision making, risking people’s lives – when those judgements are based on assumptions about human behaviour that are not in line with the scientific evidence.
The Centre for the Study of Emotion and Law was founded to conduct rigorous independent research and work with lawyers and voluntary sector practitioners, to bring scientific evidence about psychology to legal decision making. We believe that just as evidence-based policy is more effective, so evidence-based justice is more likely to bring a fairer decision. The researchers of the study of judges’ assumptions concluded with a question: Are these judicial assumptions in line with the empirical evidence for what is known about human behaviour, motivation and decision making – and what we know about how memory works and how we recall and describe events in our past – normally, or following trauma?
So how does memory work and what is it for? One clue is in the name for memory for events and episodes: autobiographical memory. The popular misperception is that it’s a system for recording events and playing them back when required for the purposes of recall – like a video. In fact, as Jane Herlihy, Laura Jobson and Stuart Turner reveal in 'Just Tell Us What Happened to You', its main purpose and function is to enable us to form and maintain, on an ongoing basis, a sense of self in a changing world. In order to do this, memory operates in ways which could cause problems for someone whose credibility is being assessed according to some of those persisting beliefs about truth telling.
For example, there is plenty of evidence showing that the ability to recall facts accurately declines over time; how many people can remember the phone number of their childhood home – unless their parents still live there and they use it regularly? More interesting is the issue of consistency: it turns out it’s actually normal – and even helpful – for memories to be updateable. You’re with your sister and a friend asks you about an event in your (shared) childhood; in your story you describe your family’s car as red, your sister interrupts and says, no, it was blue – she’s honest and often right about such things, and so you allow the correction and update your memory. From now on, whenever you retell the story, you’ll include the detail that the family car was blue. There has been no attempt to deceive on your part at any point. Of course, this could be helpful for a survivor of sexual assault, whose memory initially tells her she was helpless when attacked, but who is reminded that she fought back, and subsequently remembers herself as someone who is strong.
What about the effects of post-traumatic stress on memory? CSEL researchers set out to ask: Can discrepancies in repeated narrative accounts be assumed to be evidence of fabrication? Their conclusion, published in ‘Discrepancies in autobiographical memories— implications for the assessment of asylum seekers: repeated interviews study’, by Jane Herlihy, Peter Scragg and Stuart Turner, was, in short, no. Their study of Kosovan and Bosnian refugees, asked to recount both traumatic and non-traumatic experiences, on two separate occasions, found among other things that: in the recounting of any event on more than one occasion, some discrepancies arise; and where someone is experiencing more sever post-traumatic stress symptoms, more discrepancies arise – particularly where there is a longer delay between the two occasions of recounting the narrative. Another piece of research, published as ‘Impact of Sexual Violence on Disclosure in Home Office Interviews’, by Diana Bognor, Jane Herlihy and Stuart Turner, found that people suffering severe post traumatic stress symptoms, as well as shame, also had more difficulty disclosing experiences of rape and sexual violence.
In asylum decision making, ‘fairness’ is not simply a noble but lofty and abstract concept: it means we reduce the possibility of the terrible consequences of a wrong judgement - including the return of someone to face appalling persecution and the worst violations of their human rights. So it is vital that when judges make decisions to grant or deny someone refugee status, they don't just use their 'common sense', but have a proper understanding of the empirical evidence for how memory works, and how trauma affects one’s ability to recall and present an account of persecution.
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