Kleinian Analysis and Refugees

Yes, folks! This is indeed a student essay I submitted at Birkbeck, a riff on the odd coincidence of Melanie Klein’s thoughts about the infant’s ‘well-founded fear’ and the same concept in the 1951 Geneva Refugee Convention. I’ve deleted the obvious evidence of its origin, and offer it for those of you whou are at the meeting point of human rights and psychoanalysis to mull over and/or discard.

 

Refugees, Fear and Projection: Thoughts on Law and Psychoanalysis

 

1. Introduction

This fundamental fear of loss of the loved object seems to me psychologically well-founded. (Klein 1991: 763)

In these words, writing in 1944, Melanie Klein introduced the idea of a well-founded fear in a psychoanalytic context. The subject of the fear is an infant; the fear is that, once the mother has left, she will not return. Hence, the use of the term ‘well-founded’ is the opposite from what one would expect, since normally the mother will return. The infant’s fear stems, according to Klein, from ‘feelings of anxiety and guilt which originate from sadistic impulses and phantasies and are bound up with superego development’. (loc. cit.: 762)

Klein’s arguments, drawn from the observation of infants in their first year, would not be acceptable in a court of law. However, the term ‘well-founded fear’ which she used was to become crucial in determining the status of refugees, with the adoption of the 1951 Geneva Convention and the 1967 Protocol. It would seem that the idea was in the air at the time; but a common phrase when incorporated into an international convention becomes a legal battlefield of contested interpretations. Historically, claims Grahl-Madsen, it

is a technical term, evolved by the drafters of the Refugee Convention from the clumsy phrase ‘persecution, or fear based on reasonable grounds of persecution’ employed in Part I, section C, of Annex I to the IRO Convention. (1966: 173)

The evolution is interesting, and shows that the current phrasing in which the fear and its rationality are balanced was not the original one. However, it is the one we have, and the one with which asylum-seekers have to contend. Must they prove fear, or a foundation for the fear, or both – and how should they be related?

Since fear and persecution are central ideas in psychoanalytic thinking, and since psychoanalysis offers a theory of interpretation, we might find it useful to draw on the ideas of analysts –many of whom were themselves refugees – to clarify the increasingly contested field of what the asylum-seeker must prove, or how she must act. Indeed, counsel for the Home Secretary introduced a psychoanalytic element into his argument when he used the term ‘internal flight within the self’ with its connotations of denial and splitting to suggest a course of action for gay men who were forcibly returned to countries such as Iran and Cameroun where they would be subject to persecution[1] It is my aim in this essay to offer a psychoanalytic interpretation of the multiple fears which give rise both to the asylum-seeker’s situation and to the attempts to resolve it.  Besides fear of persecution at home, the asylum-seeker is almost certainly fearful of the outcome of her pending decision; while the Secretary of State’s interventions are at least partly driven by a well-founded fear of being seen to be soft on immigrants.

I shall first (§2) outline Kleinian theory, in particular as it has been applied to group behaviour and persecution. In  §3 I give an assessment of the loaded encounter between the asylum-seeker and the assessor of the claim at the crucial interview. In §4 I shall move to the appeal courts and the role of judges as ‘facilitators’ in the management of conflict; and in the concluding §5, I ask how far, if at all, an increasing recognition of the refugee’s problems in ‘witnessing’ may help her situation.

There are obvious methodological problems in applying psychoanalytic concepts to transactions involving multiple parties some of which may be states or higher ‘entities’ such as the UNHCR. Without claiming to resolve them all, I would make the interim point that in the asylum interview or the courtroom the parties are represented by human beings who are conducting a dialogue.

One further point: in psychoanalysis it has becoming increasingly important to recognize the unconscious elements which both parties (analysand and analyst) bring to the transaction. Similarly no party in the courtroom is speaking purely at the conscious level, and to analyse this many-voiced discourse it may sometimes be useful to suspend the ‘natural attitude’ which treats the procedure as nothing but an ideological mask of oppression.

 

2. Psychoanalysis, racism and refugees

Psychoanalysis, at its outset a therapy for individuals, was confronted early in its history with the problem of racism as a form of irrational behaviour on a mass scale., Freud had already, in 1921, raised some of the questions in his (1951) while Reich’s classic 1933 text The Mass Psychology of Fascism (Reich 2000) attempted to explain the appeal of Nazism in terms of sexual repression. While not dismissing these contributions, some of the most interesting recent reflection on racist persecution such as the work of Rustin (1991) and Clarke (2003) is much more heavily indebted to Melanie Klein’s theories; and as these theories also provide a framework in which to consider the refugee’s individual fears, it seem useful to focus on them[2].

Klein was not herself a social thinker; her central contributions were on the analysis of very young children in their first year and wider theoretical deductions. Her main teachings are to be found, for example, in Segal (1989) and Mitchell (1986); an important part of them is the idea (following Freud) that conflicts which arise in early life are only partly resolved through repression in the process of growing into a ‘normal’ child or citizen, and may be triggered to surface later as (for example) psychoses. In the very earliest (‘paranoid schizoid’) phase, the ego is fragmented and unorganized; the fear of fragmentation and the response to unsatisfied needs lead to the splitting of the world into good and bad objects (good/nurturing breast and bad/denying breast). ‘The good is introjected and idealised, the bad denigrated, anxiety is projected out into something or someone else – the ‘bad object’ (Clarke 2003: 130.) The ego is able to grow as it establishes secure boundaries delimiting inside from outside.

The analogy with nations, or groups within nations, is obvious. The more insecure – as Zizek has suggested – the national/ethnic group, the more important it becomes to police its boundaries through means which range from the paranoid to the sadistic. But this is to anticipate; and Ogden points out the positive value of splitting for the infant:

‘Splitting allows the infant, child, or adult to love safely and to hate safely, by establishing discontinuities between loved and feared aspects of self and object.’ (Ogden 1992: 64.)

In spite of this, the infant must (to grow) move to a stage of perceiving whole objects, indeed perceiving herself as making them whole – making good what she has destroyed in phantasy. This is Klein’s ‘depressive position’; in Klein’s words

‘Since the drive to repair or protect the injured object paves the way for more satisfactory object relations and sublimations, it in turn increases synthesis and contributes to the integration of the ego.’ (Mitchell 1986: 189.)

It is the (succeeding) mechanism of projective identification which modern writers see as central to the explanation of racism, an idea which could be extended without much difficulty to other forms of persecution on ‘Convention grounds’. Here the subject transforms the projections, whether good or bad, into an internalized good/bad object; and later, in a transactional stage, makes the object of the projections experience their impact. It is important to note first that projective identification is universal and second that it can be positive or negative in effect; either way, an unconscious flow of projections plays a powerful role in structuring the transaction.[3]  If the mechanism, as found in adults, can be seen as owing something to the defences associated to the paranoid-schizoid position, it is a strength of Klein’s analysis that this does not lead to a diagnosis of racism (say) as a form of paranoia in the clinical sense.[4] The identification of the internal ‘bad object’ with an external (‘particular social’) group is unfortunately almost universal, and does not inhibit ‘normal’ functioning.

 

3. The Asylum Interview

Let us begin, as is right, with the asylum-seeker who has lost her country – an object which should be nourishing, but has become persecuting and hostile. After what is almost always a traumatic passage, she arrives in another country which in phantasy becomes the new good object. At the heart of the 1951 convention is fear; which, as has often been remarked, is hard to establish. There is an obvious problem in relating Klein’s well-founded fear to that of the Geneva convention, as was suggested in the introduction; the first is unconscious, while the latter, being encoded in an international treaty, is assumed conscious and demonstrable. However, this apparent dichotomy has been challenged over the last twenty years with the growth of studies on the effect of trauma on speech, memory and witnessing[5]. Fear, trauma, ‘PTSD’, are increasingly specialist areas which are called on by the advocates of asylum-seekers to highlight the broken and the unreliable as symptoms of the narrative of fear.[6] that narratives of trauma cannot be evaluated on the usual standards of coherence and consistency, precisely because the extreme pain of persecution

does not simply resist language but actively destroys it, bringing about an immediate reversal to the sounds and cries a human being makes before language is learned (Scarry 1985: 4).

This, while it brings the asylum-seeker’s fear closer to the infantile state which Melanie Klein described, makes it resist processing by the state’s authorities who require credible evidence. The contrast between what the claimant can offer as ‘fear’ and what is expected is often stark, in particular where ‘credibility’ plays a key role in determining the admissibility of the claim. At a seminar by Stuart Turner

Several [immigration judges] were dismayed to discover that one cannot base credibility judgments on the consistency of accounts with previous versions, and admitted that they generally did so… (Good 2009: 12)

The asylum interview accordingly is from the start a place of misunderstanding and projection. If the asylum-seeker is by definition persecuted and traumatized, the legal context in which she finds herself centres on her narrative of trauma as the essential testing ground for acceptance as a refugee – is there, on the evidence, a well-founded fear of persecution? The aim is not therapeutic, but the‘asylum interview’, as a two-person transaction, does exhibit some psychoanalytic ideas as transferred to the legal predicament of the claimant. The interview[7] conducted under the current guidelines, is in theory a fact-finding process designed to establish the claimant’s history and the basis for her claim. In the words of the Asylum Policy Instructions (UKBA 2006, p.3):

The purpose of the interview is to establish the facts of an asylum claim…The asylum interview is essentially a fact finding exercise and the interviewing officer will probe any answers given and investigate unsupported statements.

Or, in the words of the UNHCR Handbook, ‘the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner’ (UNHCR (1992) §196, p.32). In practice, even at the conscious level, both parties have potentially adversarial agendas. The claimant wishes to establish a valid reason to be allowed to stay in the UK; and the interviewer wishes to undermine her claim – to show, either that her story is untrue or, if true, that she does not qualify as a refugee. The UNHCR referred specifically to a ‘refusal mindset’ among the UKBA’s interviewers[8]. Much of this is probably already clear to the participants, and to the other actors – the UKBA’s interpreter and the claimant’s lawyer, if present.

Underlying this factual account of the interviewing process, however, lie multiple projections. The trauma narrative, however much the protocol calls for it to be seen as ‘evidence’, must carry an emotional charge for the speaker and the (questioning) listener. For the claimant, the officer can become either a good object (potentially a giver of the wished-for status who will free her from persecution in the bad mother-country) or a bad object (a new persecutor, a source of invasive and disturbing questions). As the UNHCR has stressed

A person who, because of his experiences, was in fear of the authorities in his own country, may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case. (UNHCR 1992, §198.)

For the interviewing officer there is the stress of hearing the story of a traumatized claimant not as a sympathetic listener, but as a decision-maker. The case-owner did not write the API’s with their strict emphasis on fact and credibility, but she is bound by them; and if they are constantly being revised to give the appearance of sensitivity, arguably this merely makes the questioning process harder.[9]  Interviewing officers have not so far been free with accounts of their experiences[10], but it comes as no surprise to read in an anonymous interview with one (Shreen 2010) that there is ‘definitely a pressure to refuse’. The difficult effect of trauma narratives on clinicians who treat asylum seekers[11] ‘shows that, despite being ‘good objects’ almost by definition, therapists nonetheless may face a complex relationship with the trauma victim; the problems of case-owners who are effectively rewarded for dismissing claims have surely to be worse.[12] The frightening accounts of the claimant’s experiences may evoke defences, as documented by Rousseau et al. (2002):

Overexposure to [traumatic] accounts often triggers defensive reactions that lead to trivialization of horror, cynicism, and lack of empathy. (Rousseau et al. 2002, 49.)

Projection defences…can result in dismissal or demonization of the ‘other’ a mechanism which can be particularly harmful in court situations. (Ib.)

If, then, as Klein suggested, a ‘well-founded fear’ is a universal feature of the early paranoid-schizoid phase, it is not surprising to find it dominating the interview on the part of both participants – leading to sadistic rejection by the interviewer and to the crushing and humiliation of the claimant. In the culture of rejection, the ‘good object’ is the claimant who allows an easy refusal. It is possible for a case-owner to experience a positive transference with the claimant  (a move to the ‘depressive position’)– but this can have strange results:

I remember dealing with a case of a Bosnian female who had been raped by Serbian soldiers and used as a sex slave, but because she didn’t say the ‘right’ story she didn’t qualify for asylum.

What do you mean the ‘right story’?

Because to be in that situation and qualify for refugee status you have to indicate this is state sanctioned action and that they wouldn’t have prosecuted the perpetrators in that state. That is a legal technicality justified by the country guidance at the time. In that instance I actually did something I probably shouldn’t have and granted her asylum anyway. I was so frustrated with the process and how unfair it was. (Shreen 2010)

It seems then – not surprisingly – as if the final decision rests not so much on the terms of the Convention as ‘gut feeling’, or the relationship in the interview. And in general, in the words of Barsky (1994, 230):

The individuals working in the determination system are often sincere, qualified and well-meaning; but the system within which they work, and the underlying principles that guide much of the legislation, is not geared towards compassionate rulings for suffering human beings.

 

4. Anxiety and scrutiny

Different pressures come to bear at the higher judicial levels, where judges, who are not employees of the Home Secretary, enjoy a somewhat circumscribed freedom to comment on her actions. However, the same traumatic discourse naturally rules the court’s proceedings. What is fundamentally at stake is the claimant’s continued – even if miserable – residence in the UK versus her return to face fear and persecution; and these fears find speech in the courtroom – if at one remove via the interventions of lawyers and expert witnesses.

If this time the drama is more veiled, it is still present. A telling example is given by Lord Bridge’s famous liberal pronouncement in Bugdaycay that ‘when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny’[13]. A lawyer would observe that Lord Bridge was merely making a point on the grounds under which administrative review was permissible (consequences of the decision to be reviewed). All the same, his use of the term ‘anxious’, which is often cited, provides the legal framework with an underpinning of unconscious anxiety – which has, by a kind of positive counter-transference, moved from the claimant to the judiciary. If the claimants and the Home Secretary have, in this adversarial context, their unambiguous good and bad objects (the claimant has her lawyer and possibly the UNHCR’s representative as good objects, and the Home Secretary’s team as bad objects, and so on) the judges are caught in the midst of a morass of claims, trauma-narratives, precedents and consequences.[14] They are understandably anxious, disturbed by potential harm not only to the refugee but to national sovereignty (Roma Rights), even the separation of powers (JT (Cameroon)) Like an analysis, a court hearing hopes to move from the paranoid-schizoid to the depressive position, to make the split object whole; but their access to the unconscious is filtered through a hyper-rational masking discourse.

In the recent case of MA (Somalia), we have an illuminating picture of three courts in succession approaching the problem of counter-transference. All three courts agree that MA’s story is untrue; that if his appeal fails he is likely to be returned to Mogadishu; and that he is unlikely to fit in one of the categories (‘prominent businessmen or senior figures in the insurgency or in powerful criminal gangs’) whose life is not at risk there. In the discourse of judicial anxiety, filtered through legal categories, the opposing poles of ‘fear’ and ‘lies’ are constantly present. Fear situates MA as the good object, and demands reparation, while lies identify the bad object who deserves expulsion from the mother (country)’s body. In Pick’s words (describing the counter-transference in analysis):

[T]he patient seeks an enacting response and, in part, the analyst has an impulse to enact…This may range from an implicit indulgence, caressing the patient with words, to responses so distant or frozen that they seem to imply that the deprivation of the experience the patient yearns for iss of no matter…[Pick p.158.]

The  AIT ‘s response is at the ‘distant or frozen’ end of the spectrum:

It would be very sad if, by so doing, the appellant has deprived himself of protection that he would otherwise need but he has told lies and must accept the consequence of that.[15]

The Court of Appeal plainly sees this as a failure of empathy on the part of the AIT. Rather than ‘caressing the patient with words’ – an unnecessary procedure in a court of law – by a classic projective move, they express their feelings by imputing negative emotions to their predecessors:

They seem to be throwing up their hands in despair; since the appellant has concealed the truth, they cannot make any necessary findings… They first have to ask whether there is other evidence, independently of his unreliable testimony, casting light on the appellant’s particular situation. If so, they must have regard to that evidence.[16]

The AIT’s despair, with its expressive hand movements, is interpreted as a flight from the persecutory demands of the claimant. ‘Knowledge is associated with persecutory figures and depressive sorrow’, as Waska puts it [2010: 193].

In revising this judgment, the Supreme Court tried to strike a balance between sympathetic understanding and frozen distance, by evaluating the function of lies in the refugee’s strategy:

For appellants who appeal to the AIT in Refugee Convention or Article 3 cases, the stakes are often extremely high. The consequences of failure for those whose cases are genuine are usually grave. It is not, therefore, surprising that appellants frequently give fabricated evidence in order to bolster their cases. The task of sorting out truth from lies is indeed a daunting one. It is all too common for the AIT to find that an appellant’s account is incredible. And yet there may be objective general undisputed evidence about the conditions in the country to which the Secretary of State wishes to send the appellant which shows that most of the persons who have the characteristics of, or fall into the category claimed by, the appellant would be at real risk of treatment contrary to Article 3 of the ECHR or persecution for a Refugee Convention reason (as the case may be), but that a minority of these, because of special circumstances, are not subject to such risk.[17]

If lies in court are seen (say in Lacanian terms) as an attack on the persecuting father, giver of the law, then the court is here making a supreme effort to understand, even to identify with, the attack. It has been pointed out – particularly recently as issues of ‘credibility’ have been increasingly foregrounded – that nothing in the 1951 Convention requires the refugee to be a truth-teller;[18] and this squares with how ordinary discourse proceeds outside the courtroom as well as with the refugee’s particular problems with authority. As Kagan points out: (2002: 370)

A Jew fleeing Germany in the early 1940s…could invent an entirely false refugee claim, but independent evidence of her ethnic identity combined with evidence of ongoing ethnic genocide could still establish well-founded fear of being persecuted…

If the Supreme Court has finally recognized the problem (even if the recognition is unlikely to appear in the API), that is all to the good.

 

5. Conclusion

It would seem, then, that there is an increasing acceptance that the refugee’s narrative can no longer be evaluated in simple terms of surface discourse – most particularly by attending, say, to its inconsistencies. Advocacy groups and more cautiously the UNHCR are pointing out the probability that the claimant’s speech will disrupt the courtroom’s requirements; the urgent fear demands attention by speaking, potentially, in many voices, often unreliable. How then might this advance the cause of such claimants?

The short answer is – only marginally, and for some and not for others. As long as the number of successful claims allowed is so harshly restricted (and restrictions are more likely to grow than to ease), there can be no room for good objects in the courtroom. In the Supreme Court judgment just cited (MA), the final decision was to let the original decision, however bizarre, stand; the Court of Appeal was too ‘astute’ to describe the AIT’s decision as an error of law.

Similarly, one could observe – in the general context of an increased understanding of psychological conditions which might affect the judgment – that ‘PTSD’ has made its way into the law courts as a solid diagnosis.[19] This is not, however –as groups such as Asylumaid would urge – with the effect of undermining the demand that claimants’ testimonies should be credible, or plausible, or even true. ‘PTSD’ is indeed evidence that the claimant has suffered psychological harm; but why should she demand that the harm should be remedied in the UK?

[The doctor] states that he is convinced that the Appellant’s mental state fulfils the ICD–10 diagnosis of depression and PTSD… For the purpose of the appeal, we are prepared to accept that his diagnosis is correct. Of itself, that determines nothing. The KIP fact sheet on the health system in Kosovo which has been put before us satisfies us that there are adequate medical facilities for treatment of these conditions in Kosovo. The facilities are not perfect, but it is trite to observe that there are few countries in which perfection is achieved. (AT (Medical Facilities, PTSD) Kosovo [2002] UKIAT 03520).

Accordingly, even if courts were to accept the confused unconscious discourse of the claimant as evidence of a well-founded fear – as, in Kleinian terms, it most certainly is – they could still return her to her home country where the fear would be adequately dealt with by specialists. The medicalization of her fear has profited her nothing.

The French jurisdiction, where psychoanalytic methods had gained some hold, provides a similar warning. In 1995 the Centre Primo Levi was founded with a brief which included support for the victims of torture and campaigning in defence of the right to asylum; but its work was centred around psychotherapy, specifically psychoanalytic work (see http://www.primolevi.org/index.php/soigner). In 2002, aware of the useful work of the Centre and parallel organizations in treating traumatized refugees, the French tribunal of first instance for claims (OFPRA) began demanding that  the claimants should issue ‘clinical psychological certificates attesting to the authenticity of torture suffered by individuals seeking asylum in France’. (Fassin and Rechtman 2009: 219) This, as might be expected, placed the Centre in an impossible situation: should they issue the certificates (in conflict with medical impartiality, and forcing a discriminatory choice – since automatically not all claimants would get them) or refuse to issue them (so closing the door to any hope for their clients). One psychologist gets round the problem:

I started by drawing up certificates for some patients, and now I issue them to almost all of them… I think [certification] has advantages given the anxiety, phobia and trauma that the relationship with the OFPRA officer can generate, and I don’t think it’s a bad thing. (loc. cit. 248)

The psychologist, then, is testifying not to the convention fear but to fear of the investigating officer. This could be a helpful step – but how many claimants, in the current situation, will be successful one it is realized that ‘almost all of them’ are getting certificates? The psychologist has devalued the currency.

Fear of inquisitors, persecution, projection, transference and counter-transference all play a role in the courtroom, and a skilled lawyer or expert witness might even win the case for an individual refugee by highlighting the fact. However, the nature of the system in Britain, and in the West generally, is such that claimants are likely to continue to face a period of persecution in the hoped-for host country before being returned to a dangerous future in some area declared ‘safe’.

 

 

Bibliography

 

Books

Barsky, R. Constructing a Productive Other: Discourse Theory and the Convention Refugee Hearing. Amsterdam: John Benjamins, 1994.

Clarke, S. Social Theory, Psychoanalysis and Racism. Basingstoke: Palgrave Macmillan, 2003.

Fassin  D. and Rechtman, R., tr. Gomme, R. The Empire of Trauma: An Enquiry into the Concition of Victimhood. Princeton: Princeton University Press, 2009.

Grahl-Madsen, A. The Status of Refugees in International Law, I. Leiden: Sijthoff, 1966.

Hinshelwood, R. A Dictionary of Kleinian Thought, 2nd ed. London: Free Association Books, 1991.

Mitchell, J. (ed. and intro.) The Selected Melanie Klein. Harmondsworth: Penguin, 1986.

Ogden, T. The Matrix of the Mind. Northvale, New Jersey, Jason Aronson, Inc., 1986.

Reich, W. The Mass Psychology of Fascism. New York: Farrar Straus Giroux, 2000.

Rustin, M. The Good Society and the Inner World: Psychoanalysis, Politics and Cu;ture. London: Verso, 1991.

Scarry, E. The Body in Pain: The Making and Unmaking of the World. Oxford:  Oxford University Press, 1985

Segal, H. Klein. London: Karnac Books, 1989.

Waska, R Love, Hate, and Knowledge: The Kleinian Method of Analytic Contact and the Future of Psychoanalysis, Karnac, London, 2010.

Wilson, J. and Drozdek, B. Broken Spirits: The Treatment of Traumatized Asylum Seekers. New York: Brunner-Routledge, 2004.

 

Articles

Brenman Pick, I., ‘Working Through in the Counter-transference’. In Spillius, E. ed. Melanie Klein Today. London: Routledge, 1988, vo. 2, p. 34.

Caudill, D. ‘On the Naming of Paranoia in Legal Scholarship’.  33 Hous. L Rev. (1996), 215.

Cohen, J. ‘Errors of Recall and Credibility: Can omissions and discrepancies in successive statements reasonably be said to undermine credibility of testimony?’ 69 Medico-Legal Journal (1) (2001) 25.

Freud, S ‘Group Psychology and the Analysis of the Ego’, tr. James Strachey. Standard Edition vol. 18. London: The Hogarth Press, 1951, p.67.

Good,A. ‘The taking and making of asylum claims: credibility assessments in the British asylum courts.’ Keynote Lecture, Seeking Refuge: Caught Between Bureaucracy, Lawyers, and Public Indifference, ESRC-funded Conference, School of Oriental & African Studies, 17 April 2009

Herlihy, J., Scragg, P. and Turner, S. ‘Discrepancies in autobiographical memories – implications for the assessment of asylum seekers: repeated interviews study’, BMJ, 324 (7333) (2002) 324.

Herlihy, J., & Turner, S. ‘Should discrepant accounts given by asylum seekers be taken as proof of deceit?’ 16 Torture  (2006), 81.

Kagan, M. ‘Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination’. 17 Geo. Immigr. L. J. (2002), 367.

Klein, M. ‘The Emotional Life and Ego-development of the Infant with Special Reference to the Depressive Position’.  In King, P. and Steiner, R., The Freud-Klein controversies 1941-1945. London and New York: Tavistock Publications-Routledge, New Library of Psychoanalysis, 1991, p. 752.

Macklin, A. ‘Truth and Consequence: Credibility Determination in the Refugee Context’. International Association of Refugee Law Judges (1998).

Rousseau, C., Crépeau, F., Foxen, P. and Hould, F. ‘The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-making Process of the Canadian Immigration and Refugee Board’. 15 JRS (2002), 43.

‘Shreen’ (blog) ‘Have we been unfair on the UKBA? – Interview with UK Border Agency Employee’ at shreenayob.wordpress.com/2010/10/12/have-we-been-unfair-on-the-ukba-interview-with-uk-border-agency-employee/

Summerfield, D. ‘A critique of seven assumptions behind psychological trauma programmes in war-affected areas’. 48 Social Science and Medicine, (1999), 1449.

 

 

Cases

AT (Medical Facilities, PTSD) Kosovo [2002] UKIAT 03520.

Bugdaycay and Others v. SSHD [1986] UKHL 3.

HJ (Iran) and HT (Cameroun) v. SSHD [2010] UKSC 31 (short citation ‘HJ (Iran)’)

JT (Cameroon) v. Secretary of State for the Home Department, [2008] EWCA Civ 878

MA (Somalia) v. SSHD, [2010] UKSC 49, and preceding cases cited in footnotes.

R v. Immigration Officer at Prague Airport ex parte European Roma Rights Centre, [2004] UKHL 55

 

 

Official Documents, including treaties

UKBA Asylum Policy Instructions (API) Interviewing. Nov. 2006.

————————————————-, Gender Issues in the Asylum Claim, Mar 2004, revised Dec. 2010.

United Nations High Commissioner for Refugees (UNHCR). 1951 Convention and 1967 Protocol Relating to the Status of Refugees.

——————————————————————— Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. Reedited, Geneva, January 1992.

——————————————————————– ‘The Operation of the Asylum Determining Process’, 2007. Online at www.icar.org.uk/download.php %3Fid%3D524



[1] .HJ (Iran) at 20.

[2] I am also obviously indebted to the classic study – from an ethical viewpoint – by Douzinas and Warrington (1991), although the focus here is very different.

[3] The literature on projective identification is extensive; a good starting point is the essay in Hinshelwood (1989). Socially, since the concept has been used particularly by theorists of racism, negative projections have been foregrounded; but the psychoanalytic literature, in which the transaction is that between analyst and analysand, is sensitive to both kinds.

[4] Some of the problems associated with the use of ‘paranoia’ in discussing the law, or even theories of law, are brought out by Caudill in (1996). For this reason I shall on the whole avoid it, and stay with the more specific Kleinian language of defence-mechanisms associated with infantile ‘positions’.

[5] An excellent and objective survey is Fassin and Rechtman (2009).

[6] See in particular Good (2002), Cohen (2001), Herlihy, Scragg and Turner (2002).

[7] Practices for interviewing claimants vary across jurisdictions; and while some examples from Canada, where interviews are recorded, will be helpful, I shall mainly consider practice in the UK.

[8] UNHCR (2007), p.13.

[9]For example: ‘Interviewers should be ready to ask searching questions while being sensitive to the difficulties an applicant may have in disclosing all the relevant information’ UKBA 2010, p.3.

[10] Except for Macklin (1998); this Canadian account is untypical, since the assessor was a Professor of Law, while the qualification for a UK Case-Owner is two A-levels.

[11] See Wilson and Drozdek (2004),

[12] Ibid., p.303 ff.

[13] Bugdaycay,12.

[14] As, by analogy, psychoanalysts are unconsciously aware not only of the patient’s needs but of the limits imposed by professional discipline.

[15] [2007] UKAIT 00079 at para 121.

[16] [2010] EWCA Civ 426, at paras 117, 118.

[17] MA (Somalia) v. SSHD, [2010] UKSC 49, at para 21.

[18] See Kagan (2002). The literature on credibility and its difficulties is large and growing; see in particular Herlihy and Turner (2006).

[19] In spite of the fact that the syndrome is now being queried in the literature, see Summerfield (1999).

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