“We rarely even have as much information as I would consider necessary to choose a new appliance, much less make a decision about a person’s future” (Maklin 2007, 1103). Lawyers must therefore present often-fragmented cases in a way that makes them seem credible and plausible. However, judges are well aware that all evidence is a human construct, and they are always looking for motivations behind the evidence. The lower standard of proof and relatively relaxed rules of evidence in asylum cases can make cases less predictable. Virtually anything can be submitted as evidence, but judges have no solid standards against which to assess it. Without firm rules of evidence, there is a constant switching between treating claims at face value and looking behind them for forms of dissimulation, a focus on formal legal proof and a wider concern with “what really happened.” In all legal judgments, recognized uncertainty has to be transformed into practical certainty (Good 2007; Latour 2004). Yet, in the asylum process, the path from uncertainty to certainty is shot through with hesitations and doubts. There is, of course, always an element of chance in all legal proceedings, and no lawyer can predict with certainty which way a particular case will go. However, in asylum and human rights cases uncertainty over the facts is accentuated. It is not simply that judges are skeptical about claimants, but rather that they have no solid ground on which to decide to be skeptical.
This chapter focuses on a single claim by an Iranian male. It views the process from the perspective of the lawyers, bureaucrats, and judges who have to assess and process the claim. The chapter follows this individual case, from initial submission to final appeal, in order to examine the practical issues of evidence and legal argument involved in the recognition of torture. The case is reconstructed following interviews with the lawyers and attendance at the case hearing, as well as with analysis of the case documents. My research also included following an additional thirty-five claims from start to finish. Formally, assessments in refugee and human rights cases are about judgments of future risk. However, the first step to having a claim accepted is most often making a claim of past persecution or torture. This chapter will therefore focus on the attempt to prove past events. Judgments about future risk will be covered in Chapter 4.
Applying for Asylum
In the spring of 2009, Ali Khalili, a thirty-year-old Iranian male, arrived in the United Kingdom. Within three days, he had claimed asylum. Describing himself as a farmer and an atheist, Khalili said he had been accused in Iran of evangelizing Christianity, drinking alcohol, and insulting Islam. He told the British immigration official with whom he lodged the claim that he had been tortured by the Ettelaat, the Iranian intelligence service, before managing to escape to the United Kingdom. Khalili was given a cursory screening interview when he made his initial claim, but he was not interviewed in depth until one month later, when he was questioned by a UK Border Agency official through a Farsi interpreter. The official went through a set of questions about what had happened to Khalili, why and how he had left Iran, and why he did not want to go back. The interview was led by the immigration official, focusing on the questions that he deemed important, giving little space for Khalili to explain what he thought was most relevant.
The British immigration official asked Khalili how he was arrested. Khalili explained that three months previously, the Ettelaat had come to his family home at night and searched his room before detaining him. The official then suddenly changed topic and asked Khalili if he had had previous problems with the Ettelaat. Khalili explained that two years prior, during the celebration for the festival of Ashura, he had been accused of laughing at a procession of self-flagellating men. He was detained by members of the Basij militia and beaten on his chest and legs. When the Ettelaat went to search his house, they found cans of beer as well as an illegal satellite dish. The next day, he was taken to the Ettelaat office, where he was beaten again. His left eye socket was broken by a particularly heavy blow. As he was blindfolded, he did not know whether it was a kick, a punch, or a strike with an object. He then went on to explain to the British official that after a few days he was taken to court and sentenced to twenty-four lashes for possessing alcohol and fined for having the satellite dish. After paying the fine and receiving the lashes, Khalili was released.
In the interview, the topic then turned to the conditions during Khalili’s most recent detention. Khalili told the official that he was held in the Ettelaat office for about one week. He claimed to have been tortured during this time. When pushed to give more details, Khalili explained that he had been blindfolded and handcuffed. He had then been hung from the ceiling by his hands and spun around while being beaten. The soles of his feet were hit with sticks, and he was later wrapped up in a rug until he felt he would suffocate. The Ettelaat officials also sat heavily on his knees and punched him in the head until he bled. After one week, he was taken to the hospital because he had blood in his urine.
The immigration official then asked Khalili how he had managed to escape. Khalili explained that on the second night in the hospital his brother bribed one of the Ettelaat guards and he had managed to climb out a window and get into a waiting car. Khalili was questioned at length by the immigration official about the room he managed to escape from, and there was some confusion over whether Khalili climbed out the window of his room or of a nearby nurse’s room. Khalili described how he stayed at his cousin’s for two weeks, moving between his house and a shop. After a short break, the immigration official then turned to some apparent further inconsistencies in Khalili’s account. He claimed that Khalili had said that he had been arrested three and a half months ago, which was before he had said he had talked to his friends about Christianity. Khalili said that he had difficulty remembering the precise dates because of his “psychological status.”
The immigration official told Khalili that he found it hard to believe that, given the torture described, he had not received more injuries. Khalili explained that this was because the Ettelaat “do their job very well” and do not want to leave any marks. The immigration official then turned to the issue of Christianity. Although Khalili knew Jesus had been crucified, when questioned he could not name the disciple who betrayed Jesus, the names of Jesus’ parents, or Jesus’ birthday. Khalili again explained that his psychological state made it hard for him to remember these things. Finally, Khalili was asked if he had attended any Christian services while he was in the United Kingdom, and he replied that he had not had any time. The interview was drawn to a close and Khalili was told he would be informed of the decision in due course.
The Rejection
Khalili’s case was being dealt with under a process within the UK immigration system, known as the New Asylum Model, which had been established in 2005 and was supposed to deal with cases in a faster and more efficient manner than previously. The UK Home Office boasted that this would lead not only to swifter decisions but also to faster removals (2006). Historically, cases had taken years to process, but under the new system some claims were being dealt with in a matter of weeks, although they could still take months or even years. One week after his interview, Khalili received a letter from the UK Border Agency signed by a different official from the one who had interviewed him. The letter quoted a report from the Danish immigration authorities that claimed “the consumption of alcohol in private homes is, in practice, not considered a crime any longer.” The letter argued that therefore, “Your account of being arrested, charged and sentenced partially for alcohol consumption in your own home is not consistent with the above objective evidence.” The letter went on to say, however, that even if this story were true, by Khalili’s own account he was released and he was therefore not believed to be of any further interest to the Iranian authorities.
The letter then turned to Khalili’s account of his religious interests. It pointed out that Khalili had failed to identify Jesus’ birthday or the name of Jesus’ parents. Although it was noted that he had been able to provide other information about Jesus, the letter argued that the information was in the public domain, and therefore they gave it little weight. It was therefore claimed that the level of knowledge of Christianity that Khalili showed was not consistent with his claim to have had conversations about Jesus with his friends. The letter went on to quote a previous
