A disciplinary model of the asylum process : case studies from the United Kingdom and Hong Kong

Abstract

Whilst the custom of asylum has long historical roots, the use of legal and administrative tools to determine individual protection claims is a relatively recent development. The question of whether an asylum-seeker qualifies for refugee status or complementary protection is today one of the most complex and politically sensitive decisions required of any government. Much of this controversy stems from the fact that the asylum process is torn between competing and seemingly contradictory policy demands. On the one hand, the process must respect the rights afforded to refugees and asylum-seekers under international law. Whilst on the other, it is under intense political pressure to simultaneously act as a mechanism of immigration control. In negotiating these tensions, many developed jurisdictions have radically tightened their asylum procedures. Indeed, recent years have seen a discernible drift towards mechanisms that place political and administrative expedience over substantively fair procedures.

Through in-depth analysis of the UK’s accelerated asylum procedures and Hong Kong’s non-refoulement screening process, this thesis explores two contrasting mechanisms that purport to high standards of fairness, yet in practice reject virtually every claim received. The study unpicks this apparent paradox and considers how current practice in both jurisdictions might be reformed to achieve more equitable outcomes. The mechanisms selected for analysis serve to exemplify this work’s central claim that the asylum process has strayed from its original protective purpose and is now increasingly set up as a disciplinary mechanism of immigration control. From a normative standpoint this is disconcerting, since asylum decision-making ought to embody humanitarian values and employ procedures that give full and fair effect to international protection obligations.

This study is noteworthy in that it employs Mashaw’s models of administrative justice to evaluate the competing values at play within the case studies examined. An important finding of this work is that Mashaw’s bureaucratic, legal and professional models are insufficient to explain the decision-making practices encountered. This is because Mashaw’s framework struggles to convey the impact of recent exclusionary leanings. The thesis contends that a supplementary model is required to fully make sense of this swing towards restrictionist procedures. In articulating a disciplinary model of the asylum process the study breaks new ground in conceptualising the way governments use the asylum process as a means of mass refusal and instrument of deterrence and control. The new model also serves as a general analytical tool to assist policy-makers perceive situations whereby a decision process is at risk of abandoning its original function.