Navigating the Intersection of Scepticism, Gender Blindness, and Ethnocentricity in the Asylum Tribunal: the Urgent Case For Empathy Enhancement

Abstract

Abstract Adopting a critical legal studies position, informed by procedural justice theory, this article argues that the intersection of scepticism with ethnocentric and gender-blind expectations of behaviour from tribunal judges impacts the fairness of proceedings, to the particular detriment of women asylum-seekers in the UK. Procedural justice theorists argue that fair procedures help court users to accept adverse outcomes. Yet an attempt to apply these principles to the asylum tribunal where there is no common experience and where decision-making occurs within a culture of disbelief proves futile. This analysis is informed by the experiences of 14 women who appealed an adverse asylum decision before the tribunal. It is evident that whilst judicial discretion allows judges to make procedural enhancements, this leads to inconsistency (itself a marker of unfairness) and the opportunity for an appellant to rebut assumptions through meaningful participation is rarely available. It is argued that principles of procedural justice need to be tailored in the specific context of asylum. Empathy-informed reasoning is urgently required. This needs to be embedded, through training, guidelines, and greater accountability. Without such enhancement, the tribunal appears to lack impartiality and serves only to replicate the flaws of initial decision-making.